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Nebraska Court of Appeals Advance S

24 Nebraska Appellate Repor

STATE v. SCHIESSER

Cite as 24 Neb. App. 407

State of Nebraska, appellee, v.

Michael R. Schiesser, appel

___ N.W.2d ___

Filed December 13, 2016. No. A-16-115.

1. Judgments: Appeal and Error. When issues on appeal present questions of law, an appellate court has an obligation to reach an independent 

conclusion irrespective of the decision of the court below.

2. Pleas: Appeal and Error. A trial court is afforded discretion in deciding 

whether to accept guilty pleas, and an appellate court will reverse the 

trial court’s determination only in case of an abuse of discretion.

3. Pleas: Effectiveness of Counsel. When a court accepts a defendant’s 

plea of no contest, the defendant is limited to challenging whether the 

plea was understandingly and voluntarily made and whether it was the 

result of ineffective assistance of counsel.

4. Pleas. A sufficient factual basis is a requirement for finding that a plea 

was entered into understandingly and voluntarily.

5. Criminal Attempt: Intent. A person is guilty of an attempt to commit a 

crime if he or she intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he or she believes 

them to be or intentionally engages in conduct which, under the circumstances as he or she believes them to be, constitutes a substantial step in 

a course of conduct intended to culminate in his or her commission of 

the crime.

6. Criminal Law: Aiding and Abetting. Aiding the consummation of 

a felony occurs when a person intentionally aids another to secrete, 

disguise, or convert the proceeds of a felony or otherwise profit from 

a felony.

7. Criminal Law: Words and Phrases. Under the phrase “otherwise profit 

from a felony” as used in Neb. Rev. Stat. § 28-205 (Reissue 2016), the 

word “profit” is used as a verb and means to make returns, proceeds, or 

revenue on a transaction.

Nebraska Supreme Court Online Library

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

12/13/2016 11:16 AM CST
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STATE v. SCHIESSER

Cite as 24 Neb. App. 407

8. Criminal Law: Aiding and Abetting. Pursuant to Neb. Rev. Stat. 

§ 28-205 (Reissue 2016), there is no requirement that the proceeds in 

question be “profit from a felony” as to both the one who aids and the 

one who is aided. It is enough that the person who is aided receives 

the returns or proceeds as a result of the commission of a felony and 

that the person who aids has intentionally assisted the person aided in 

enjoying these returns or proceeds.

9. ____: ____. To be convicted under Neb. Rev. Stat. § 28-205 (Reissue 

2016), it is not necessary that the underlying felony be committed in 

Nebraska.

10. Criminal Law: Aiding and Abetting: Time. Aiding the consummation 

of a felony is concerned with conduct that occurs after a felony is committed and is a distinct crime.

Appeal from the District Court for Lancaster County: Lor

A. Maret, Judge. Affirmed

John S. Berry, of Berry Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and George R. Love 

for appellee.

Inbody, Riedmann, and Bishop, 

Riedmann, Ju

INTRODUCTION

Michael R. Schiesser appeals from his plea-based conviction 

of attempted aiding the consummation of a felony. On appeal, 

he claims the factual basis supporting his plea is insufficient to 

sustain the conviction. We find no merit to his argument and 

therefore affirm.

BACKGROUND

Schiesser was initially charged with possession of money to 

be used in violating Neb. Rev. Stat. § 28-416(1) (Cum. Supp. 

2014) and aiding the consummation of a felony. Pursuant to 

a plea agreement, Schiesser pled no contest to the amended 

information charging him with attempted aiding the consummation of a felony. The State provided a factual basis at the 
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STATE v. SCHIESSER

Cite as 24 Neb. App. 407

plea hearing, and the district court accepted the plea and found 

Schiesser guilty. Schiesser was sentenced to 365 days in jail 

and received a $1,000 fine.

ASSIGNMENT OF ERROR

Schiesser assigns that the factual basis of his plea of no 

contest was insufficient to support a finding of guilty.

STANDARD OF REVIEW

[1] When issues on appeal present questions of law, an 

appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below. State v. 

Wilkinson, 293 Neb. 876, 881 N.W.2d 850 (2016).

[2] A trial court is afforded discretion in deciding whether 

to accept guilty pleas, and an appellate court will reverse the 

trial court’s determination only in case of an abuse of discretion. Id.

ANALYSIS

Schiesser argues that the factual basis provided by the State 

was insufficient to support a finding of guilty. The State claims 

that because Schiesser pled no contest to the charge, he either 

waived his ability to challenge the factual basis or should be 

judicially estopped from asserting a position on appeal which 

contradicts his position at the trial level. We disagree with 

the State.

[3,4] In State v. Wilkinson, supra, the defendant pled no 

contest to an amended complaint in county court. He never 

moved to quash the amended complaint and was found guilty 

of the charge. He appealed, and the district court affirmed. 

He appealed again, and the Supreme Court moved the case 

to its docket. The defendant argued on appeal that the district 

court erred by affirming the county court’s finding that there 

was a sufficient factual basis to support the conviction. The 

Supreme Court observed that when a court accepts a defendant’s plea of no contest, the defendant is limited to challenging whether the plea was understandingly and voluntarily 
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Cite as 24 Neb. App. 407

made and whether it was the result of ineffective assistance 

of counsel. See id. The court iterated that a sufficient factual 

basis is a requirement for finding that a plea was entered into 

understandingly and voluntarily. Id. The court therefore found 

that the defendant had not waived his challenge to the factual 

basis. Id.

The same logic applies in the present case, and thus, Schiesser 

has not waived his challenge to the factual basis supporting his 

plea. Similarly, because a sufficient factual basis is a requirement for finding that a plea was entered into understandingly 

and voluntarily, the defendant is not judicially estopped from 

challenging the factual basis even after pleading no contest 

and essentially declining to challenge the factual basis to the 

trial court. See State v. Wilkinson, supra. We therefore address 

Schiesser’s assignment of error and determine whether the 

factual basis supports the necessary elements of the crime of 

which Schiesser was convicted.

[5] Schiesser pled no contest to attempted aiding the consummation of a felony. A person is guilty of an attempt to 

commit a crime if he or she intentionally engages in conduct 

which would constitute the crime if the attendant circumstances were as he or she believes them to be or intentionally engages in conduct which, under the circumstances as 

he or she believes them to be, constitutes a substantial step 

in a course of conduct intended to culminate in his or her 

commission of the crime. Neb. Rev. Stat. § 28-201(1) (Cum. 

Supp. 2014).

[6-8] Aiding the consummation of a felony occurs when a 

person intentionally aids another to secrete, disguise, or convert the proceeds of a felony or otherwise profit from a felony. 

Neb. Rev. Stat. § 28-205 (Reissue 2016). Under the phrase 

“otherwise profit from a felony” as used in § 28-205, the word 

“profit” is used as a verb and means to make “‘returns, proceeds, or revenue’ on a transaction.” State v. Hansen, 289 Neb. 

478, 482, 855 N.W.2d 777, 782 (2014). There is no requirement that the proceeds in question be “profit from a felony” as 
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Cite as 24 Neb. App. 407

to both the one who aids and the one who is aided. It is enough 

that the person who is aided receives the returns or proceeds 

as a result of the commission of a felony and that the person 

who aids has intentionally assisted the person aided in enjoying 

these returns or proceeds. State v. Hansen, supra.

[9] Schiesser argues that the factual basis was insufficient 

to prove where the money came from, for what purpose it was 

to be used, and whether it was the proceeds of a crime committed in Nebraska. Specifically, he argues that “the State still 

failed to adduce evidence that the $23,000 in possession of 

[Schiesser] either came from the sale of narcotics in Nebraska, 

would be used to purchase or sell narcotics in Nebraska 

or would be transported back through Nebraska.” Brief for 

appellant at 9. To be convicted under § 28-205, however, 

it is not necessary that the underlying felony be committed 

in Nebraska. Rather, the statute requires only that a person 

intentionally aids another to secrete, disguise, or convert the 

proceeds of a felony or otherwise profit from a felony. The 

question therefore is whether the evidence provided a sufficient factual basis for the commission of a felony.

In the present case, we find the evidence sufficient to 

establish a factual basis supporting the charge. Specifically, 

the State proved a sufficient factual basis by way of inquiry 

of the prosecutor at the plea hearing and the information contained in the presentence report. See State v. Cervantes, 15 

Neb. App. 457, 729 N.W.2d 686 (2007) (factual basis for plea 

may be established by inquiry of prosecutor, interrogation of 

defendant, or examination of presentence report). The evidence establishes that on September 11, 2014, Schiesser was 

traveling from Wisconsin to California when his vehicle was 

stopped by police for a traffic violation in Lancaster County, 

Nebraska. The officer detected the odor of “burnt marijuana” 

coming from the vehicle, and Schiesser admitted that he and 

his passenger had previously smoked marijuana in the vehicle 

but denied the existence of any controlled substances in the 

vehicle. Schiesser denied that either he or the passenger was 
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STATE v. SCHIESSER

Cite as 24 Neb. App. 407

carrying a large amount of currency, stating that he was carrying only approximately $1,000 of “travel cash.”

While searching the vehicle, the officer detected the “very 

distinct odor of burnt marijuana . . . mixed with the odor of raw 

marijuana.” The officer located a “roach,” “a small bit of marijuana,” a “small amount of loose marijuana,” and “some Fruity 

Pebble marijuana treats.” Despite Schiesser’s statements to 

the contrary, the officer also located approximately $23,000 in 

banded currency in various locations in the vehicle, including 

the center console and in a shoebox underneath the back seat. 

According to police, the currency was bundled in a manner 

consistent with previously seized currency which was involved 

in criminal activity. A canine sniff of the currency alerted for 

the odor of narcotics, and a pretest performed on the currency 

identified cannabis residue. Schiesser took “full ownership” 

of the money because he “didn’t want [the passenger] to get 

into trouble.”

As further factual basis for the charge, the prosecutor stated 

that there appeared to have been another trip back to Wisconsin 

(where Schiesser previously lived) in August 2014. Police 

also located shipping package labels, “all consistent with the 

distribution of controlled substances.” The prosecutor concluded by stating that “the officer believed that this money 

was also used or were proceeds from the distribution of the 

controlled substances.”

Schiesser has previous marijuana-related criminal convictions out of Wisconsin between 2004 and 2013, including those 

for manufacturing/delivering, possession of marijuana, possession with intent to deliver, and maintaining a drug trafficking 

place. Schiesser’s multistate criminal history record contained 

in the presentence report contains convictions of manufacture/

deliver THC; possession of THC, subsequent offense; and possession with intent to deliver, all of which are felony crimes 

in Wisconsin. Schiesser has a medical marijuana card issued 

to him in California and admitted to smoking marijuana daily 

for “‘pain relief,’” although he denied having any ongoing 
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health problems. According to the presentence report, Schiesser 

indicated that he performs “‘odd jobs’” to earn money and 

denied selling marijuana for profit since he lived in Wisconsin 

2 years earlier. He declined to answer questions about growing 

marijuana. The passenger in the vehicle, however, reported that 

Schiesser grows marijuana in California and distributes it to 

dispensaries and patients in the state.

We find that the above evidence, albeit circumstantial, 

is sufficient to establish the underlying felony of intent to 

deliver and/or delivery of marijuana in Wisconsin. See State v. 

Badami, 235 Neb. 118, 453 N.W.2d 746 (1990) (holding that 

appellant’s possession of drug and drug paraphernalia and his 

statement that he had drug problem, although circumstantial 

evidence, provided sufficient factual basis for finding of guilt 

of charge of operating motor vehicle while under influence of 

drug). See, also, State v. Abraham, 189 Neb. 728, 205 N.W.2d 

342 (1973) (stating that conviction may be based upon circumstantial evidence when facts and circumstances tending 

to connect accused with crime charged are of such conclusive 

nature as to exclude to moral certainty every rational hypothesis except that of guilt).

The passenger was a resident of Wisconsin and told the 

officer that he was accompanying Schiesser on the drive to 

California and that Schiesser was going to buy him a return 

airline ticket. The passenger was found to have $1,000 in cash 

on his person and said that Schiesser gave him the money 

while they were seated in the police car during the traffic stop. 

In a recorded telephone call made while Schiesser was incarcerated, Schiesser admitted that of the $15,000 located in the 

shoebox in the vehicle, $9,000 was his and $6,000 belonged 

to the passenger.

[10] We find the above evidence establishes that Schiesser 

attempted to aid the consummation of the felony of possession with intent to deliver and/or delivery of marijuana in 

Wisconsin and then possessed drug money in Nebraska in 

violation of § 28-416(17), which is a Class IV felony. Aiding 
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STATE v. SCHIESSER

Cite as 24 Neb. App. 407

the consummation of a felony occurred when Schiesser gave 

$1,000 to the passenger, or in other words, he attempted to 

intentionally aid the passenger in profiting from a felony. The 

fact that Schiesser may also be the principal to the underlying 

felony is not inconsistent with his conviction for attempted 

aiding the consummation of the felony, because aiding the consummation of a felony is concerned with conduct that occurs 

after a felony is committed and is a distinct crime. See State v. 

Hansen, 289 Neb. 478, 855 N.W.2d 777 (2014).

We find no requirement, nor does Schiesser direct us to any, 

that the underlying felony must have occurred in Nebraska. 

Rather, the State must establish that the crime of which 

Schiesser was charged occurred in Lancaster County, Nebraska, 

and the State did so. See Peterson v. Houston, 284 Neb. 861, 

824 N.W.2d 26 (2012) (State must prove proper venue beyond 

reasonable doubt in criminal cases). Accordingly, we find 

that the factual basis is sufficient to prove beyond a reasonable doubt that Schiesser is guilty of attempted aiding the 

consummation of a felony. We therefore affirm the conviction 

and sentence.

CONCLUSION

Because the factual basis is sufficient to support the conviction for attempted aiding the consummation of a felony, 

we affirm.

Affirme