- 726 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

State of Nebraska, appellee, v. 

Tony W. Osborne, appellant.

___ N.W.2d ___

Filed March 10, 2023. No. S-22-225.

1. Trial: Evidence. Whether there is sufficient foundation evidence for 

the admission of physical evidence must necessarily be determined by 

the trial court on a case-by-case basis.

2. Trial: Evidence: Appeal and Error. A trial court’s determination of 

the admissibility of physical evidence will not ordinarily be overturned 

except for an abuse of discretion.

3. Convictions: Evidence: Appeal and Error. Regardless of whether 

the evidence is direct, circumstantial, or a combination thereof, and 

regardless of whether the issue is labeled as a failure to direct a verdict, 

insufficiency of the evidence, or failure to prove a prima facie case, the 

standard is the same: In reviewing a criminal conviction, an appellate 

court does not resolve conflicts in the evidence, pass on the credibility 

of witnesses, or reweigh the evidence; such matters are for the finder 

of fact, and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

4. Criminal Law: Trial: Evidence. Where objects pass through several 

hands before being produced in court, it is necessary to establish a complete chain of evidence, tracing the possession of the object or article 

to the final custodian; and if one link in the chain is missing, the object 

may not be introduced in evidence.

5. ____: ____: ____. Objects which relate to or explain the issues or 

form a part of a transaction are admissible in evidence only when duly 

identified and shown to be in substantially the same condition as at 

the time in issue. It must be shown to the satisfaction of the trial court 

that no substantial change has taken place in an exhibit so as to render 

it misleading.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/10/2023 09:06 AM CST
- 727 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

6. Evidence. Important in determining the chain of custody are the nature 

of the evidence, the circumstances surrounding its preservation and custody, and the likelihood of intermeddlers tampering with the object.

7. Controlled Substances. Under the language of the criminal narcotics 

statutes, possession may be either actual or constructive.

8. Words and Phrases. Actual possession is synonymous with physical 

possession.

9. Evidence: Proof: Intent. Constructive possession may be proved by 

mere ownership, dominion, or control over contraband itself, coupled 

with the intent to exercise control over the same.

10. Evidence: Proof. Constructive possession may be proved by direct or 

circumstantial evidence and may be shown by the accused’s proximity 

to the item at the time of the arrest or by a showing of dominion over it.

11. Controlled Substances. Possession of a controlled substance means 

either (1) knowingly having it on one’s person or (2) knowing of the 

substance’s presence and having control over the substance.

12. Evidence: Proof. Mere presence at a place where the item in question is 

found is not sufficient to show constructive possession.

13. Controlled Substances: Motor Vehicles: Evidence. Possession of an 

illegal substance can be inferred from a vehicle passenger’s proximity 

to the substance or other circumstantial evidence that affirmatively links 

the passenger to the substance.

14. Controlled Substances: Evidence: Proof. Evidence that a defendant 

had constructive possession of a drug with knowledge of its presence 

and its character as a controlled substance is sufficient to support a finding of possession and to sustain a conviction for unlawful possession.

Appeal from the District Court for Otoe County: Julie D. 

Smith, Judge. Affirmed.

Keith M. Kollasch, of Kollasch Law Office, for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Tony W. Osborne appeals his convictions in the district 

court for Otoe County for possession of a controlled substance 
- 728 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

with intent to deliver and for possession of a controlled substance without a tax stamp. Osborne claims that the district 

court erred when it overruled his motion in limine and admitted evidence, over objection at trial, including the controlled 

substance that had been in the possession and under the control 

of a Nebraska State Patrol evidence technician who was later 

indicted for theft of controlled substances under her control. 

Osborne also claims that there was not sufficient evidence to 

support his convictions because the State failed to show that 

the controlled substance was in his physical or constructive 

possession. We affirm Osborne’s convictions.

STATEMENT OF FACTS

On March 2, 2021, Nebraska State Patrol Trooper Ashdonn 

Nolte observed a traffic violation and initiated a stop of a red 

Chevy Suburban. There were three occupants in the vehicle. 

The driver was later identified as Wally Sellers, and the person in the front passenger seat was later identified as Natasha 

Borrego. Osborne was seated in the rear seat on the passenger side.

Sellers initially gave Nolte a false name, but he was later 

identified by use of a fingerprint device, and it was discovered that he had outstanding warrants. After some resistance by Sellers, Nolte placed Sellers under arrest based on 

the warrants.

Additional law enforcement officers, including Nebraska 

State Patrol Trooper Jamieson Brown and Otoe County Deputy 

William Bushhousen, arrived to assist with the traffic stop. 

Nolte had determined that neither Borrego nor Osborne had 

a valid driver’s license, and he called for a tow truck. While 

Nolte was processing the arrest of Sellers, Bushhousen asked 

Borrego and Osborne to get out of the Suburban. Borrego 

got out on the front passenger side and turned to collect her 

personal items from inside the Suburban. As Osborne started 

getting out on the rear passenger side and Borrego continued to retrieve her personal items, Bushhousen saw a black 
- 729 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

sock falling and hitting the ground. Bushhousen picked up 

the sock and saw that inside of it there were multiple plastic 

baggies of a substance he thought to be methamphetamine. 

Bushhousen handed the sock to Brown, who opened the sock 

and observed multiple baggies containing what he also thought 

to be methamphetamine. A field test completed by another 

trooper and observed by Brown yielded a result that was positive for methamphetamine.

Both Borrego and Osborne denied ownership of the sock 

and its contents, and Sellers also denied ownership. All three 

were arrested and taken to the Otoe County jail on charges of 

possession of methamphetamine. During searches at the jail, 

Sellers and Borrego were both found to have methamphetamine on their persons. Sellers had a crystal substance in his 

pocket, and Borrego admitted that she had hidden a baggie of 

methamphetamine inside her vagina. No methamphetamine 

was found on Osborne’s person during the traffic stop or during a search at the jail.

Bushhousen initially thought that the sock had fallen from 

Borrego’s person or her area of the vehicle because it landed 

near her. However, after viewing video from his body camera, 

Bushhousen determined that the sock had fallen from the rear 

passenger side as Osborne was getting out of the vehicle. The 

video was viewed by the district court and is included in the 

record on appeal. Other evidence, some of which is discussed 

later herein, led investigators to believe that the sock and its 

contents had been in the possession of Osborne. The State 

filed an information charging Osborne with possession of a 

controlled substance with intent to deliver and possession of 

a controlled substance without a tax stamp. The State also 

charged Osborne with being a habitual criminal.

Prior to Osborne’s trial, Osborne’s attorneys learned that 

Anna Idigima, a former employee of the Nebraska State Patrol 

whose duties included having custody of evidence submitted 

for forensic testing, had been charged with crimes involving evidence being held at the State Patrol evidence locker. 
- 730 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

Idigima had been indicted in federal court on charges of conspiracy to distribute and possession with intent to distribute 

controlled substances.

On December 9, 2021, Osborne filed a motion in limine in 

which he sought an order preventing the State from seeking 

admission of any evidence that had been under the control of 

Idigima. Osborne alleged that Idigima had received evidence 

related to his case on March 3, 2022, and that it was under her 

control and custody prior to its transfer to the Nebraska State 

Patrol Crime Laboratory (crime lab) on March 10. Osborne 

alleged that it was his understanding that Idigima either would 

not appear as a witness in this case or would invoke her Fifth 

Amendment rights if questioned about evidence that had been 

under her control. Osborne alleged that without testimony by 

Idigima, the State would be unable to prove the complete chain 

of custody for the evidence.

The district court held a hearing on Osborne’s motion in 

limine on December 20, 2021. The State presented testimony 

by four witnesses. The first witness was Brown, the trooper 

who had participated in the traffic stop on March 2. Brown testified that after the traffic stop was concluded, he took the evidence, including the sock and the methamphetamine contained 

inside, to the State Patrol office in Nebraska City, Nebraska. 

At that office, Brown weighed the methamphetamine and then 

put it and the sock into an evidence bag which he then sealed 

and initialed. Brown identified exhibit 5 as being the evidence 

bag containing the sock and the methamphetamine. He testified 

that the seal on the evidence bag appeared at the hearing to be 

in the same condition as when he had placed it there. Brown 

testified that there were two new markings on the bag, one 

from the evidence room and one from the crime lab, as well as 

a new seal. He testified that the items inside the evidence bag 

appeared to be in the same condition as when he first collected 

them at the traffic stop.

The State’s next witness was Tiffanie Leffler, who was 

the evidence supervisor at the crime lab. Leffler testified that 
- 731 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

one of her duties was to maintain the chain of custody for 

evidence at the crime lab. She testified generally about procedures she follows to perform that duty. Leffler also testified 

regarding security measures employed at the crime lab. Leffler 

testified that on March 10, 2021, she received evidence in 

Osborne’s case from Idigima. She identified exhibit 5 as being 

part of the evidence that she received on that date.

Leffler testified that in accordance with her procedure, she 

examined the evidence bag to ensure that the seal was intact 

and initialed and that there were no rips or tears or opened 

areas on the bag. She testified that she noted no issues with 

the evidence bag. Leffler testified that upon examining exhibit 

5 at the hearing, the only difference from when she first 

received the evidence bag was that a new seal had been placed 

by the analyst after testing the contents. Leffler testified that 

because the original seal initialed by the law enforcement 

officer and the new seal placed by the analyst were the only 

two seals on exhibit 5, it indicated that there were no other 

times that the contents of the evidence bag had been touched 

since they were originally put into the bag. Leffler testified 

that she did not think it was possible that exhibit 5 could have 

been altered or opened prior to when she received it because 

there would have been some indication on the bag that it had 

been opened.

The State’s next witness at the hearing on the motion in 

limine was Jerry Smith, who was a supervisor and technical 

lead for the drug chemistry section at the crime lab. Smith 

identified exhibit 5 as being evidence that he had tested. He 

testified that the evidence bag was sealed when he received 

it and that he did not observe any indication that it had been 

opened since it was sealed. Smith testified that the substance 

tested positive for methamphetamine and that the total weight 

of the substance was 24.211 grams, which he testified was a 

negligible difference from the weight of 24.1 grams that Brown 

had measured when he collected the evidence. Smith testified that after he completed testing, he resealed the evidence 
- 732 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

bag and returned it to Leffler. He testified that at the time of 

the hearing, exhibit 5 was in essentially the same condition as 

it was when he first received it and the only addition was a seal 

he had placed and initialed after he had completed testing and 

resealed the bag.

The State’s final witness at the hearing on the motion in 

limine was Kaleb Bruggeman, a lieutenant with the Nebraska 

State Patrol. Bruggeman testified that he was involved in 

the investigation of Idigima and her handling of evidence at 

the State Patrol evidence locker. Bruggemen testified that the 

investigation indicated that Idigima had removed controlled 

substances from the evidence locker and that she and a federal 

codefendant intended to distribute the controlled substances. 

He testified that the evidence showed that Idigima had taken 

evidence but did not show that she had altered evidence or 

transferred evidence from one case to another.

Bruggeman testified regarding procedures for maintaining 

chain of custody; having reviewed the chain of custody report 

for exhibit 5, Bruggeman testified that the report indicated 

that on the morning of March 3, 2021, Idigima had taken the 

sealed evidence bag from the evidence locker where it had 

been left by the law enforcement officer, placed a barcode on 

the evidence bag, and placed the evidence bag in a permanent 

location in the storage room. Bruggeman also testified that the 

report indicated that on March 10, Idigima had taken exhibit 5 

to the crime lab. Bruggeman testified that the report indicated 

that Idigima did not have any contact with exhibit 5 after she 

transported it to the crime lab and that exhibit 5 remained at 

the crime lab until Bruggeman himself retrieved it from the 

crime lab.

Bruggeman testified that as part of the investigation of 

Idigima, Lincoln Police Department officers examined evidence that had been under the control of Idigima. Bruggeman 

observed the officers’ examination of exhibit 5, which examination revealed no signs of tampering. Bruggeman testified 
- 733 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

that based on his investigation, he believed that it was in or 

after June 2021 that Idigima began taking items of evidence.

Osborne did not offer testimony at the hearing, but he argued 

in part that the State could not establish a chain of custody 

for exhibit 5 without testimony by Idigima or an opportunity 

for Osborne to cross-examine her. At the close of the hearing, 

the court ruled from the bench. The court stated that proof that 

an exhibit remained in the custody of law enforcement officials 

was sufficient to prove a chain of custody and was sufficient 

foundation to permit its introduction into evidence.

As reflected in the record, the court considered evidence 

presented at the hearing regarding the nature of the evidence at 

issue, the circumstances surrounding its custody, and the likelihood of intermeddlers tampering with the evidence. The court 

noted that the evidence bag was sealed by Brown after he put 

the evidence inside and that it was still sealed when Smith 

received it to test the substance inside. The court noted no evidence that anyone had observed anything that would indicate 

tampering with the evidence. The court further noted that the 

dates on which Idigima had access to the evidence predated 

the dates of the offenses for which Idigima was charged and 

that such charges related to taking evidence and not to tampering with evidence by adding evidence or moving evidence 

between cases. The court stated there was no evidence of 

tampering with the specific evidence in this case. Based upon 

these considerations, the court found that it was not likely that 

any intermeddler, including Idigima, had tampered with the 

evidence in this case. The court therefore overruled Osborne’s 

motion in limine.

Osborne waived his right to a jury trial, and a bench trial 

was held. Evidence presented by the State included, inter alia, 

testimony by the law enforcement officers who participated 

in the traffic stop, including Nolte, Brown, and Bushhousen. 

Videos from the body cameras worn by each of the officers during the traffic stop were also received into evidence. 
- 734 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

Stills from the video of Bushhousen’s body camera were also 

received into evidence, and such stills generally depicted the 

time when Borrego was gathering her items from the front 

passenger compartment of the Suburban, Osborne was beginning to get out on the rear passenger side of the vehicle, and 

the sock was falling from the vehicle.

In connection with the admission of the stills from the video 

of his body camera, Bushhousen testified that although at the 

time of the traffic stop he thought the sock had come from 

Borrego’s area of the vehicle, after reviewing the trajectory 

of the sock as reflected in the video from his body camera, 

he determined that the sock had come from the area where 

Osborne was seated. Bushhousen also testified that the video 

showed that prior to getting out of the vehicle, Osborne could 

be seen leaning forward toward the floorboard or under the 

front seat several times.

At trial, the State also presented testimony by Brown, Leffler, 

and Smith regarding the chain of custody for exhibit 5. Their 

testimony at the bench trial was consistent with their testimony 

at the hearing on Osborne’s motion in limine recited above. 

During Smith’s testimony, which followed that of Brown and 

Leffler, the State offered exhibit 5 into evidence. The court 

received exhibit 5 over Osborne’s objections based on chain of 

custody and foundation.

Anthony Frederick, an investigator with the Nebraska State 

Patrol, testified regarding his investigation of this case after the 

traffic stop. On March 3, 2021, the day after the traffic stop, 

Frederick interviewed Sellers, Borrego, and Osborne. Based on 

information from those interviews, Frederick went to a gas station in Lincoln, Nebraska, and obtained surveillance video of 

the night of March 2 from that location. The surveillance video 

was received into evidence without objection.

Frederick testified that the relevant part of the surveillance 

video showed that a Suburban pulled up to a red car that was 

parked in a lot near the gas station. The surveillance video 
- 735 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

depicted a person getting out of the back seat of the Suburban 

and getting into the back seat of the red car. The person 

stayed inside the red car for a short time before getting out 

and returning to the back seat of the Suburban. Both vehicles 

then left the parking lot. Frederick identified Osborne as the 

person depicted in the video as getting out of the Suburban, 

getting into the red car, and then returning to the Suburban. 

Frederick testified that through further investigation, he identified Daniel Zeiger as being in the red car. Frederick testified 

that based on his training and experience, he believed that the 

surveillance video depicted a drug transaction.

Zeiger was called by the State as a witness. He testified that 

he was in custody on drug-related charges and that as part of 

his case, he had agreed to give testimony in other cases, including Osborne’s. Zeiger testified that he knew Osborne through 

Osborne’s brothers, who were friends of Zeiger. Zeiger testified that he met Osborne in a parking lot near a gas station and 

had delivered 7 grams of methamphetamine to Osborne. Zeiger 

was shown the surveillance video from the gas station that 

had been entered into evidence during Frederick’s testimony. 

Zeiger testified that the surveillance video depicted the transaction between himself and Osborne. Zeiger also testified that 

he had delivered an additional 7 grams of methamphetamine to 

Osborne earlier that same day.

The State’s final witness in the bench trial was Borrego. She 

testified that on March 2, 2021, she and Sellers drove from 

Nebraska City to Lincoln in a red Suburban with the purpose 

of buying methamphetamine from a friend of hers. The friend 

was at the residence where Osborne lived. Borrego bought 3.5 

grams of methamphetamine from her friend. While Borrego 

and Sellers were at the residence, Osborne asked if they would 

give him a ride to Nebraska City, to which they agreed.

In the red Suburban, Borrego sat in the front passenger 

seat and Osborne was in the rear passenger seat. On the way 

out of Lincoln, they stopped at one gas station to get gas, 

and then they stopped at a second gas station where Osborne 
- 736 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

“was meeting somebody.” Osborne got out of the Suburban, got 

into another car, and then returned to the Suburban. After they 

left the second gas station, Osborne asked Sellers and Borrego 

whether they “were good,” which Borrego understood to mean 

whether they had some methamphetamine; they replied that 

they “had a little bit,” and Osborne said that “he would hook 

[them] up for the ride.”

Borrego testified that during the traffic stop when she was 

getting out of the Suburban, she did not retrieve a sock containing methamphetamine from the vehicle, and that she was 

not aware there was a sock containing methamphetamine in the 

vehicle. She testified that when the officer presented the sock 

to her, she did not recognize it. Borrego testified that when 

she had methamphetamine, she generally carried it inside her 

vagina, and that the only methamphetamine she had inside the 

Suburban that night was that which she had obtained earlier 

that day and that was on her person. On cross-examination, 

Borrego testified that she had originally been charged with 

felony possession with intent to deliver but that pursuant 

to a plea agreement, she had pled guilty to misdemeanor 

attempted possession.

Osborne called two witnesses in his defense—Sellers and 

Zeiger. Sellers testified that Borrego was his girlfriend, that 

they had traveled to Lincoln from Nebraska City, and that they 

gave Osborne a ride on the trip back. Sellers testified that he 

had been charged with felony possession with intent to deliver 

but that pursuant to a plea agreement, he pled guilty to misdemeanor attempted possession. Osborne called Zeiger as a 

witness and reminded Zeiger of his prior testimony regarding 

the amount of methamphetamine he had delivered to Osborne. 

Upon questioning, Zeiger testified that he generally weighed 

methamphetamine before he delivered it and that his weights 

were accurate.

After Osborne rested and both sides had presented closing arguments, the court announced its findings from the 

bench. The court stated that it generally found the witnesses 
- 737 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

to be credible “with the possible exception of . . . Sellers,” 

and the court specifically noted testimony by Borrego and 

Zeiger. The court also found that the stills from the video 

taken on Bushhousen’s body camera “show[] the sock falling from the vehicle and not falling from . . . Borrego” and 

that it “appear[ed] that it was swept out of the vehicle by 

[Osborne’s] foot.” The court further noted that the methamphetamine appeared to be packaged for sale and was in 

a quantity in excess of 20 grams. The court found Osborne 

guilty of both possession of a controlled substance with intent 

to deliver and possession of a controlled substance without a 

tax stamp.

The court thereafter found Osborne to be a habitual criminal. The court sentenced Osborne to imprisonment for 10 to 30 

years for each conviction, and it ordered that the sentences be 

served concurrent to one another.

Osborne appeals his convictions.

ASSIGNMENTS OF ERROR

Osborne claims, restated, that the district court erred when 

it overruled his motion in limine and over objection at trial 

admitted evidence that had been in the possession and under 

the control of Idigima. Osborne also claims that there was not 

sufficient evidence to support his convictions because the State 

failed to show that the controlled substance was in his physical 

or constructive possession.

STANDARDS OF REVIEW

[1,2] Whether there is sufficient foundation evidence for the 

admission of physical evidence must necessarily be determined 

by the trial court on a case-by-case basis. State v. Blair, 300 

Neb. 372, 914 N.W.2d 428 (2018). A trial court’s determination 

of the admissibility of physical evidence will not ordinarily be 

overturned except for an abuse of discretion. Id.

[3] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether 
- 738 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, 

the standard is the same: In reviewing a criminal conviction, 

an appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact, and a conviction will 

be affirmed, in the absence of prejudicial error, if the evidence 

admitted at trial, viewed and construed most favorably to the 

State, is sufficient to support the conviction. State v. Pauly, 

311 Neb. 418, 972 N.W.2d 907 (2022).

ANALYSIS

There Was Sufficient Evidence to Establish 

Foundation for Admission of Exhibit 5, 

the Evidence Bag Containing the 

Sock and Methamphetamine.

Osborne’s first assignment of error concerns the admission 

of exhibit 5, the evidence bag containing the sock and methamphetamine, which at one point had been under Idigima’s control. Osborne claims that the district court erred when it overruled his motion in limine and over objection admitted such 

evidence at trial. Osborne argues that without testimony by 

Idigima, the State could not establish the chain of custody for 

evidence that had been in her possession and therefore could 

not show foundation to admit such evidence. We conclude that 

the State provided sufficient foundation and that the district 

court did not abuse its discretion when it determined that the 

evidence was admissible.

[4-6] Where objects pass through several hands before being 

produced in court, it is necessary to establish a complete chain 

of evidence, tracing the possession of the object or article to 

the final custodian; and if one link in the chain is missing, the 

object may not be introduced in evidence. State v. Weathers, 

304 Neb. 402, 935 N.W.2d 185 (2019). Objects which relate 

to or explain the issues or form a part of a transaction are 

admissible in evidence only when duly identified and shown 
- 739 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

to be in substantially the same condition as at the time in issue. 

Id. It must be shown to the satisfaction of the trial court that no 

substantial change has taken place in an exhibit so as to render 

it misleading. Id. Important in determining the chain of custody 

are the nature of the evidence, the circumstances surrounding 

its preservation and custody, and the likelihood of intermeddlers tampering with the object. Id. Whether there is sufficient 

foundation to admit physical evidence is determined on a caseby-case basis. Id.

Osborne generally argues that without testimony by Idigima, 

one link in the chain of custody for exhibit 5 was missing, 

and that therefore, the State could not establish foundation for 

admitting it into evidence. However, our precedent does not 

require that every person who has played a role in the chain of 

custody must testify. Instead, the focus is on whether the complete chain of custody has been established and whether it has 

been shown to the satisfaction of the court that the object is in 

substantially the same condition as it was at the relevant time 

and that no substantial change has taken place in the evidence 

so as to render it misleading.

For example, in State v. Weathers, supra, we concluded 

that testimony by a doctor who supervised the collection of 

evidence by a nurse was sufficient to establish the chain of 

custody, even though the doctor did not personally handle all 

of the steps in securing the evidence but did testify regarding steps performed by a nurse under the doctor’s supervision. We determined that the doctor’s testimony regarding the 

procedures which were followed, when combined with other 

evidence such as testimony by police officers who collected, 

packaged, and sealed the evidence, was sufficient to establish 

a chain of custody. We noted that the defendant in Weathers

did not cite “authority requiring that the specific person who 

physically collected and sealed the samples must testify,” and 

we concluded that testimony by the doctor who supervised the 

examination was sufficient to establish that step in the chain. 

304 Neb. at 428, 935 N.W.2d at 205.
- 740 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

Similarly, in the present case, we do not think the absence 

of testimony by Idigima was fatal to establishing the chain of 

custody. The State presented testimony by other witnesses who 

could establish the chain of custody from collection of the 

evidence until the time of trial and who could establish that 

it was in substantially the same condition as when it was 

collected and that no material change had occurred which 

would make the evidence misleading. Those witnesses included 

Brown, who collected the sock and its contents at the scene, 

put it into the evidence bag, and sealed the bag; Leffler, 

who received the evidence bag at the crime lab; and Smith, 

who tested the substance. Each witness testified that at the 

time of trial, the evidence was in substantially the same condition as when each of them had custody of it. The discrepancies 

noted by these witnesses, such as a seal Smith added when 

testing was completed, were explained by the testimony of the 

other witnesses. Significantly, with respect to Osborne’s argument that Idigima might have tampered with the evidence, we 

note that Leffler, who was the first witness in the chain to have 

custody after Idigima, testified that when she received the evidence bag, she examined it and confirmed that the seal placed 

by Brown was intact and there were no signs of tampering. 

Smith similarly testified that when he received the evidence 

bag, he did not observe any indication that it had been opened 

since it was sealed by Brown. The testimony by the State’s witnesses showed a complete chain of custody for exhibit 5. Such 

testimony further showed that exhibit 5 was in substantially 

the same condition as it was when Brown collected the sock 

and its contents and placed them in the evidence bag and that 

no substantial change had taken place in the evidence which 

would render it misleading.

We conclude that the evidence in this case was sufficient to 

establish the chain of custody and to provide foundation for the 

admission of exhibit 5 and that the district court did not abuse 

is discretion when it determined exhibit 5 was admissible. We 

therefore reject Osborne’s first assignment of error.
- 741 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

There Was Sufficient Evidence to Show That 

Osborne Possessed the Methamphetamine 

and to Support Osborne’s Convictions.

Osborne also claims that there was not sufficient evidence 

to support his convictions because the State failed to show that 

the controlled substance was in his physical or constructive 

possession. We conclude that the evidence was sufficient to 

show possession and to support the convictions.

Osborne was convicted of possession of a controlled substance, methamphetamine, with intent to deliver under Neb. 

Rev. Stat. § 28-416(1)(a) (Cum. Supp. 2020) and of possession of a controlled substance without a tax stamp under Neb. 

Rev. Stat. § 77-4309 (Reissue 2018). Both convictions require, 

among other elements, that the defendant possessed a controlled substance. Osborne contends that the State’s evidence 

was not sufficient to prove that he was in possession of the 

methamphetamine that was found inside the sock. Osborne 

does not argue the sufficiency of the evidence with regard 

to the other elements of either offense, and so our analysis 

focuses solely on whether there was sufficient evidence of 

Osborne’s possession of the methamphetamine.

In reviewing a criminal conviction, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, or 

reweigh the evidence; such matters are for the finder of fact, 

and a conviction will be affirmed, in the absence of prejudicial 

error, if the evidence admitted at trial, viewed and construed 

most favorably to the State, is sufficient to support the conviction. State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).

[7-14] We have held that under the language of the criminal 

narcotics statutes, possession may be either actual or constructive. State v. Warlick, 308 Neb. 656, 956 N.W.2d 269 

(2021). Actual possession is synonymous with physical possession. Id. Constructive possession, in contrast, may be proved 

by mere ownership, dominion, or control over contraband 

itself, coupled with the intent to exercise control over the 

same. Id. Constructive possession may be proved by direct 
- 742 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

or circumstantial evidence and may be shown by the accused’s 

proximity to the item at the time of the arrest or by a showing 

of dominion over it. Id. Thus, possession of a controlled substance means either (1) knowingly having it on one’s person 

or (2) knowing of the substance’s presence and having control 

over the substance. Id. Mere presence at a place where the 

item in question is found is not sufficient to show constructive 

possession. Id. But possession of an illegal substance can be 

inferred from a vehicle passenger’s proximity to the substance 

or other circumstantial evidence that affirmatively links the 

passenger to the substance. Id. Evidence that a defendant had 

constructive possession of a drug with knowledge of its presence and its character as a controlled substance is sufficient to 

support a finding of possession and to sustain a conviction for 

unlawful possession. Id.

In the present case, there was no direct evidence that Osborne 

was in physical possession of the methamphetamine. It was not 

found on his person, and instead, it was found in a sock on the 

ground outside the vehicle as Osborne was getting out of the 

vehicle. However, in this bench trial, the district court cited 

specific evidence that supported its finding that Osborne possessed the methamphetamine. The court stated that it found that 

the stills from the video of Bushhousen’s body camera showed 

that the sock containing the methamphetamine fell from the 

vehicle and not from Borrego’s person and that instead, it 

appeared to have been swept out of the vehicle by Osborne’s 

foot as he was getting out of the vehicle. Our viewing of the 

video from Bushhousen’s body camera and of the stills from 

the video indicate that it was reasonable for the finder of fact 

to find that the video shows that the sock fell from the area 

of the vehicle where Osborne was seated and that Osborne 

appeared to kick the sock out of the vehicle, whether intentionally or accidentally, as he got out of the vehicle. Based on this 

evidence, Osborne’s possession of the sock and its contents 

could be inferred from its physical proximity to him when it 

was inside the vehicle.
- 743 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

But mere proximity was not the only evidence from which 

it could be inferred that Osborne possessed the methamphetamine that was inside the sock; other circumstantial evidence 

affirmatively linked Osborne to the substance. Zeiger testified that at two times on the day of the traffic stop, he had 

distributed methamphetamine to Osborne. The second time 

occurred shortly before the traffic stop. The methamphetamine 

inside the sock was contained in multiple baggies, and the 

amount of methamphetamine was such that it could be reasonably inferred that the methamphetamine inside the sock 

included the methamphetamine Zeiger provided to Osborne 

earlier in the day, as well as methamphetamine from another 

source or sources. In addition, Borrego testified that after 

they had stopped at the gas station where Zeiger testified he 

had provided methamphetamine to Osborne, Osborne made a 

comment to her and Sellers that she understood to mean that 

Osborne could provide them with some methamphetamine 

if they wanted it. We note that the district court specifically 

stated that it found testimony by Zeiger and by Borrego 

to be credible, and the testimony set forth above provided 

circumstantial evidence from which the court as finder of 

fact could find that Osborne possessed the methamphetamine 

found inside the sock.

Based on evidence of the proximity of the sock to Osborne 

when it was inside and then falling from the vehicle and other 

circumstantial evidence that Osborne was in possession of 

methamphetamine at the time of the traffic stop, we determine 

there was sufficient evidence from which the district court 

could find that Osborne possessed the methamphetamine that 

was inside the sock. Because there was sufficient evidence 

that Osborne possessed the methamphetamine, and because 

Osborne does not challenge the sufficiency of the evidence of 

the other elements of each offense, we conclude that there was 

sufficient evidence to support Osborne’s convictions. We reject 

this assignment of error.
- 744 -

Nebraska Supreme Court Advance Sheets

313 Nebraska Reports

STATE V. OSBORNE

Cite as 313 Neb. 726

CONCLUSION

We conclude that there was sufficient evidence to establish 

the chain of custody and provide foundation for admission of 

exhibit 5 and that therefore, the district court did not abuse its 

discretion when it found the evidence admissible. We further 

conclude that there was sufficient evidence of Osborne’s possession of the methamphetamine to support his convictions. We 

therefore reject Osborne’s assignments of error, and we affirm 

Osborne’s convictions.

Affirmed.