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STATE v. ARCHER

Cite as 307 Neb. 330

State of Nebraska, appellant, v. 

Deborah S. Archer, appellee.

State of Nebraska, appellant, v. 

Cory L. Russell, appellee.

___ N.W.2d ___

Filed September 25, 2020. Nos. S-19-802, S-19-803.

1. Judgments: Appeal and Error. When dispositive issues on appeal pre

sent questions of law, an appellate court has an obligation to reach an 

independent conclusion irrespective of the decision of the court below.

2. Criminal Law: Preliminary Hearings: Probable Cause. The purpose 

of a preliminary hearing is to ascertain whether a crime has been committed and whether there is probable cause to believe the accused committed it.

3. Constitutional Law: Criminal Law: Preliminary Hearings. A preliminary hearing is not a criminal prosecution or trial within the meaning 

of the Nebraska Constitution. Nor is it a trial of the person charged in 

regard to his or her guilt or innocence.

4. Criminal Law: Preliminary Hearings: Probable Cause. If after a 

preliminary hearing the court finds that a crime has been committed and 

there is probable cause to show that the accused committed it, the effect 

of the hearing is to hold the accused for trial.

Appeals from the District Court for Washington County: 

John E. Samson, Judge. Exceptions overruled.

M. Scott Vander Schaaf, Washington County Attorney, for 

appellant.

Mallory N. Hughes, of Dornan, Troia, Howard, Breitkreutz 

& Conway, P.C., L.L.O., for appellees.

Nebraska Supreme Court Online Library

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

11/20/2020 08:08 AM CST
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STATE v. ARCHER

Cite as 307 Neb. 330

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

The State of Nebraska seeks appellate review of the district 

court’s dismissal of charges filed against Deborah S. Archer 

and Cory L. Russell. The Nebraska Court of Appeals granted 

leave to appeal, and we moved this case to our docket. We 

overrule the State’s exceptions.

BACKGROUND

Archer owned DJ’s Vapes, located in Herman, Washington 

County, Nebraska. Russell was employed by Archer at DJ’s 

Vapes. Archer and Russell were arrested in December 2017, following an investigation by local law enforcement into whether 

DJ’s Vapes was engaged in selling illegal drugs. Specifically at 

issue on appeal is the sale of products containing cannabidiol, 

also known as CBD.

Archer and Russell were both first charged in Washington 

County Court with possession of CBD with the intent to manufacture, deliver, or dispense under Neb. Rev. Stat. § 28-416(1) 

(Cum. Supp. 2018) and conspiracy under Neb. Rev. Stat. 

§ 28-202 (Cum. Supp. 2018). A preliminary hearing was held 

in March 2018.

At the preliminary hearing, a member of law enforcement 

testified that he purchased from Archer and Russell items 

advertised as containing CBD oil. Following that hearing, the 

county court found sufficient probable cause to bind Archer 

and Russell over to district court. Accordingly, an information 

was filed in the district court charging the same counts.

Archer and Russell then filed pleas in abatement, and in June 

2018, the district court dismissed all of the counts. According 

to the State’s application for leave to docket an appeal, an order 

explaining the court’s reasoning accompanied its decision. That 

reasoning is not part of our record.
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STATE v. ARCHER

Cite as 307 Neb. 330

In July 2018, the county attorney refiled the criminal cases 

in county court, and a preliminary hearing was held in October. 

The laboratory technician who tested the CBD oil at issue 

testified that tetrahydrocannabinol, otherwise known as THC, 

and CBD had a similar chemical structure. The technician also 

indicated, in response to cross-examination, that his testing 

revealed no THC in the CBD oil sold by Archer and Russell, 

and he further testified that his testing did not reveal whether 

the CBD in question was synthetically produced. The county 

court dismissed the charges, finding that the county attorney 

did not establish probable cause. Apparently no explanation of 

reasoning accompanied these dismissals.

The present charges were filed in November 2018. A preliminary hearing was held in May 2019. A clinical neuropsychologist at the University of Nebraska Medical Center testified at the preliminary hearing that the pharmacological effects 

of THC and CBD were not similar. In addition, the transcripts 

of proceedings from the prior cases were offered as exhibits. In July, the district court dismissed without prejudice all 

charges for failure of sufficient probable cause. No reasoning 

was given.

The State filed an application to docket appeals, taking exception to the district court’s July 2019 dismissals. 1

The Court of Appeals granted those applications, and the 

exception proceedings were consolidated and moved to this 

court’s docket.

ASSIGNMENT OF ERROR

The State assigns that the district court erred in dismissing 

the charges against Archer and Russell.

STANDARD OF REVIEW

[1] When dispositive issues on appeal present questions 

of law, an appellate court has an obligation to reach an 

1 See Neb. Rev. Stat. § 29-2315.01 (Cum. Supp. 2018).
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Cite as 307 Neb. 330

independent conclusion irrespective of the decision of the 

court below. 2

ANALYSIS

Archer and Russell were charged with possession of CBD 

with the intent to manufacture, deliver, or dispense under 

§ 28-416(1) and conspiracy under § 28-202. The issue presented by this appeal is whether the district court erred when, 

following a preliminary hearing, it dismissed the charges 

against Archer and Russell.

Legal Principles.

Section 28-202(1) provides:

A person shall be guilty of criminal conspiracy if, with 

intent to promote or facilitate the commission of a felony:

(a) He agrees with one or more persons that they or one 

or more of them shall engage in or solicit the conduct or 

shall cause or solicit the result specified by the definition 

of the offense; and

(b) He or another person with whom he conspired commits an overt act in pursuance of the conspiracy.

Section 28-416(1) provides that “[e]xcept as authorized by 

the Uniform Controlled Substances Act, it shall be unlawful 

for any person knowingly or intentionally: (a) To manufacture, 

distribute, deliver, dispense, or possess with intent to manufacture, distribute, deliver, or dispense a controlled substance . . 

. .” “Controlled substance” is defined as “a drug, biological, 

substance, or immediate precursor in Schedules I through V of 

section 28-405.” 3

Neb. Rev. Stat. § 28-405(c) [Schedule I] (Cum. Supp. 2018) 

of the Uniform Controlled Substances Act lists the following as 

prohibited substances:

2 State v. Rossbach, 264 Neb. 563, 650 N.W.2d 242 (2002).

3 See Neb. Rev. Stat. § 28-401(4) (Cum. Supp. 2018).
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Cite as 307 Neb. 330

Any material, compound, mixture, or preparation which 

contains any quantity of the following hallucinogenic 

substances, their salts, isomers, and salts of isomers, 

unless specifically excepted, whenever the existence of 

such salts, isomers, and salts of isomers is possible within 

the specific chemical designation, and, for purposes of 

this subdivision only, isomer shall include the optical, 

position, and geometric isomers:

. . . .

(12) Tetrahydrocannabinols, including, but not limited 

to, synthetic equivalents of the substances contained in 

the plant or in the resinous extractives of cannabis, sp. or 

synthetic substances, derivatives, and their isomers with 

similar chemical structure and pharmacological activity 

. . . .

. . . .

(25) Any material, compound, mixture, or preparation containing any quantity of synthetically produced 

cannabinoids . . . . Since nomenclature of these synthetically produced cannabinoids is not internationally standardized and may continually evolve, these structures or 

compounds of these structures shall be included under 

this subdivision, regardless of their specific numerical 

designation of atomic positions covered, so long as it can 

be determined through a recognized method of scientific 

testing or analysis that the substance contains properties 

that fit within one or more of the following categories:

. . . .

(M) Any nonnaturally occurring substance, chemical 

compound, mixture, or preparation, not specifically listed 

elsewhere in these schedules and which is not approved 

for human consumption by the federal Food and Drug 

Administration, containing or constituting a cannabinoid 

receptor agonist as defined in section 28-401.

(Emphasis supplied.)
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STATE v. ARCHER

Cite as 307 Neb. 330

A preliminary hearing did not exist at common law. 4 A 

preliminary hearing is a creature of statute, and its functional 

purpose is stated in Neb. Rev. Stat. § 29-506 (Reissue 2016):

If upon the whole examination, it shall appear that no 

offense has been committed or that there is no probable 

cause for holding the accused to answer for the offense, 

he shall be discharged; but if it shall appear that an 

offense has been committed and there is probable cause 

to believe that the person charged has committed the 

offense, the accused shall be committed to the jail of the 

county in which the same is to be tried, there to remain 

until he is discharged by due course of law . . . .

[2-4] In short, the purpose of a preliminary hearing is to 

ascertain whether a crime has been committed and whether 

there is probable cause to believe the accused committed it. 5 Its 

purpose is not a criminal prosecution or trial within the meaning of the Nebraska Constitution. 6 Nor is it a trial of the person 

charged in regard to his or her guilt or innocence. 7 Rather, if 

after a preliminary hearing the court finds that a crime has been 

committed and there is probable cause to show that the accused 

committed it, the effect of the hearing is to hold the accused 

for trial. 8

Did District Court Err?

In this appeal, the State assigns that the district court erred 

in dismissing the charges against Archer and Russell following a preliminary hearing. The county attorney requests this 

court to provide a legal analysis, reason, and opinion providing 

direction of this issue for prosecuting attorneys, and further 

4 Id.

5 Id.

6 Id.

7 Id.

8 See id.
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STATE v. ARCHER

Cite as 307 Neb. 330

asserts that sufficient evidence was presented to establish that 

probable cause existed.

As to the merits, the county attorney argues that sufficient 

evidence was presented to establish probable cause because 

items sold by Archer and Russell contained CBD, which is 

listed as a Schedule I substance under the Uniform Controlled 

Substances Act. The county attorney takes issue with Archer and 

Russell’s expert’s testimony that CBD did not have the same 

pharmacological effect as THC, calling it “irrelevant.” 9

Finally, at oral argument in this case, the county attorney 

indicated that because the district court failed to explain why 

the charges were lacking in probable cause, the county attorney 

was unsure how to proceed. The county attorney further indicated that the Legislature’s passage of 2019 Neb. Laws, L.B. 

657, otherwise known as the Nebraska Hemp Farming Act, and 

its impact upon such prosecutions, had not been addressed by 

this court.

As noted, the purpose of a preliminary hearing is to ascertain whether a crime has been committed and whether there 

is probable cause to believe the accused committed it. While 

certainly most preliminary hearings center on questions of fact 

related to the alleged crime, the preliminary hearing in this 

case was different in that its focus was on whether a crime was 

committed at all. As such, a prosecutor was required to show 

(1) possession and/or distribution (2) of a controlled substance. 

Only the second requirement—whether the CBD oil is a controlled substance—is at issue here.

In order to determine if a substance is a “controlled substance,” one must examine the Uniform Controlled Substances 

Act. Before the district court, the record shows that both 

§ 28-405(c)(12) and § 28-405(c)(25) were at issue.

We turn first to § 28-405(c)(12), which lists as a controlled substance THC and synthetic equivalents of THC, as 

well as any substances “with similar chemical structure and 

9 Brief for appellant at 6.
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STATE v. ARCHER

Cite as 307 Neb. 330

pharmacological activity” as THC. Archer and Russell concede the CBD in this case had a similar chemical structure 

as THC, but they argue that the prosecutor failed to show 

the CBD oil had “similar . . . pharmacological activity” to an 

illegal substance as set forth in § 28-405(c)(12) and that to the 

contrary, Archer and Russell’s expert’s testimony showed that 

it did not.

Our review of the record supports the contention of Archer 

and Russell that the CBD oil in question did not contain THC 

and did not have the same pharmacological effects as THC. 

Therefore, the State failed to establish that the CBD tested in 

this matter was a “controlled substance” under the Uniform 

Controlled Substances Act.

We turn next to whether the CBD was a synthetic equivalent 

to an illegal substance for purposes of § 28-405(c)(25). At issue 

here is whether Archer and Russell possessed or distributed 

“[a]ny material, compound, mixture, or preparation containing 

any quantity of synthetically produced cannabinoids . . . .” 10

The county attorney has proved there was cannabinoids, or 

CBD, in the CBD oil. But the record establishes that the county 

attorney failed to show the source of the CBD, i.e., failed to 

show that it was “synthetically produced.” As such, the record 

presented by the State fails to establish that the CBD in question was a prohibited “controlled substance” under the Uniform 

Controlled Substances Act.

We finally turn to the county attorney’s request, not specifically assigned on appeal, 11 that we provide direction on how to 

prosecute cases involving CBD. But these exception proceedings do not involve anything other than the State’s failures of 

proof at the preliminary hearing, and do not implicate L.B. 

657. We therefore decline the invitation to address the prosecution of cases involving CBD products in this opinion.

10 See § 28-405(c)(25).

11 See, e.g., State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020).
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STATE v. ARCHER

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Finally, we note that there is no requirement in either statute or case law for a district court to provide explanation for 

a decision to dismiss charges following a preliminary hearing, 

and thus to the extent the county attorney seeks a finding of 

error for the court’s failure to do so, we find none.

CONCLUSION

We find no error in the district court’s dismissal of the informations filed against Archer and Russell, and thus, we overrule 

the State’s exceptions.

Exceptions overruled.