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State of Nebraska, appellee, v.

Dominic L. Castellanos, appe

___ N.W.2d ___

Filed September 11, 2018. Nos. A-17-808, A-17-809.

1. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to 

suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

2. Motions to Suppress: Warrantless Searches: Appeal and Error.

In reviewing a trial court’s denial of a motion to suppress evidence 

obtained by a warrantless search under the emergency doctrine, an 

appellate court employs a two-part standard in which the first part of 

the analysis involves a review of the historical facts for clear error and 

a review de novo of the trial court’s ultimate conclusion that exigent 

circumstances were present. Where the facts are largely undisputed, the 

ultimate question is an issue of law.

3. Rules of Evidence: Other Acts. An appellate court reviews for abuse 

of discretion a trial court’s evidentiary rulings on the admissibility of a 

defendant’s other crimes or bad acts under Neb. Evid. R. 404(2), Neb. 

Rev. Stat. § 27-404(2) (Reissue 2016), or under the inextricably intertwined exception to the rule.

4. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

5. Jury Instructions: Proof: Appeal and Error. To establish reversible 

error from a court’s failure to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct 

Nebraska Supreme Court Online Library

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

09/18/2018 09:09 AM CDT
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statement of the law, (2) the tendered instruction was warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s failure to 

give the requested instruction.

6. Jury Instructions: Appeal and Error. It is not error for a trial court to 

refuse a requested instruction if the substance of the proposed instruction is contained in those instructions actually given.

7. ____: ____. If the instructions given, which are taken as a whole, correctly state the law, are not misleading, and adequately cover the issues 

submissible to a jury, there is no prejudicial error concerning the instructions and necessitating a reversal.

8. Search and Seizure: Warrantless Searches. Searches without a valid 

warrant are per se unreasonable, subject only to a few specifically established and well-delineated exceptions that must be strictly confined by 

their justifications.

9. Search and Seizure: Warrantless Searches: Proof. In the case of a 

search and seizure conducted without a warrant, the State has the burden 

of showing the applicability of one or more of the exceptions to the warrant requirement.

10. Search and Seizure: Warrantless Searches: Police Officers and 

Sheriffs. In the case of entry into a home, a police officer who 

has obtained neither an arrest warrant nor a search warrant cannot 

make a nonconsensual and warrantless entry in the absence of exigent 

circumstances.

11. Search and Seizure: Police Officers and Sheriffs: Words and 

Phrases. The emergency doctrine is a category of exigent circumstances. The elements of the emergency doctrine are that (1) the police 

must have reasonable grounds to believe there is an immediate need for 

their assistance for the protection of life or property and (2) there must 

be some reasonable basis to associate the emergency with the area or 

place to be searched.

12. Search and Seizure: Warrantless Searches. The first element of the 

emergency doctrine considers whether there were reasonable grounds to 

find an emergency, and the second element considers the reasonableness 

of the scope of the search.

13. Constitutional Law: Police Officers and Sheriffs. An action is reasonable under the Fourth Amendment, regardless of the individual officer’s 

state of mind, as long as the circumstances viewed, objectively, justify 

the action.

14. Police Officers and Sheriffs: Probable Cause. The presence of an 

emergency, like probable cause, hinges on the reasonable belief of the 

officers in light of specific facts and the inferences derived therefrom, 

not whether, in hindsight, one actually existed.
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15. Search and Seizure: Police Officers and Sheriffs: Probable Cause.

The first element of the emergency doctrine is similar to probable cause 

and asks whether the facts available to the officer at the moment of 

entry warranted a person of reasonable caution to believe that entry 

was appropriate.

16. Search Warrants: Affidavits: Probable Cause. Where an affidavit 

used for the purpose of obtaining a search warrant includes both illegally obtained facts as well as facts derived from independent and lawful sources, a valid search warrant may issue if the lawfully obtained 

facts, considered by themselves, establish probable cause to issue the 

warrant; not all evidence obtained is considered fruit of the poisonous 

tree, and such evidence may be admitted if there is a sufficient independent basis for the discovery of the evidence.

17. Rules of Evidence: Other Acts. Neb. Evid. R. 404(2), Neb. Rev. Stat. 

§ 27-404(2) (Reissue 2016), does not apply to evidence of a defendant’s 

other crimes or bad acts if the evidence is inextricably intertwined with 

the charged crime.

18. ____: ____. Inextricably intertwined evidence includes evidence that 

forms part of the factual setting of the crime, or evidence that is so 

blended or connected to the charged crime that proof of the charged 

crime will necessarily require proof of the other crimes or bad acts, or if 

the other crimes or bad acts are necessary for the prosecution to present 

a coherent picture of the charged crime.

19. Jury Instructions. Whenever an applicable instruction may be taken 

from the Nebraska Jury Instructions, that instruction is the one which 

should usually be given to the jury in a criminal case.

20. Jury Instructions: Appeal and Error. All the jury instructions must 

be read together, and if, taken as a whole, they correctly state the law, 

are not misleading, and adequately cover the issues supported by the 

pleadings and the evidence, there is no prejudicial error necessitating reversal.

Appeal from the District Court for Lancaster County: Jodi L.

Nelson and Darla S. Ideus, Judges. Affir

Timothy S. Noerrlinger, of Naylor & Rappl Law Office, 

P.C., L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Pirtle, Riedmann, and Bishop, Ju
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Pirtle, Judge

INTRODUCTION

Dominic L. Castellanos appeals his convictions in the district court for Lancaster County for possession of a firearm by 

a prohibited person and possession of methamphetamine. He 

takes issue with the court’s overruling his motion to suppress, 

allowing certain “[rule] 404 evidence” under the “‘inextricably 

intertwined’ exception,” and failing to give his proposed jury 

instructions on possession. Based on the reasons that follow, 

we affirm.

BACKGROUND

On April 29, 2016, an information was filed in the district 

court charging Castellanos with one count of possession of a 

firearm by a prohibited person, in violation of Neb. Rev. Stat. 

§ 28-1206(1) and (3)(b) (Reissue 2016). On July 13, an information was filed in the district court charging Castellanos with 

one count of possession of a controlled substance, in violation 

of Neb. Rev. Stat. § 28-416(3) (Supp. 2015). The two cases 

were consolidated for trial and sentencing and have been consolidated for purposes of appeal.

On September 12, 2016, Castellanos filed a motion to suppress evidence in each case. A consolidated hearing was held 

on the motions. The evidence adduced at the suppression hearing was as follows:

On February 19, 2016, Officer Charity Hamm of the Lincoln 

Police Department was on an unrelated police call in the area 

of 17th and G Streets when she heard a single gunshot nearby. 

She testified that it sounded as if the gunshot came from an 

area southwest of her location. She got in her marked patrol 

car and headed toward the direction of the gunshot sound. 

When she got to the area of 16th and D Streets, she noticed a 

maroon sport utility vehicle parked oddly along the curb of D 

Street. As Officer Hamm approached the vehicle, she saw that 

there were three occupants in the vehicle and that the vehicle’s 

passenger-side windows had both been shattered. There was 
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a circular impact on the passenger side of the vehicle, in 

between the two shattered windows, consistent with damage 

from a shotgun.

Officer Hamm, along with other police officers who had 

arrived at the scene, spoke with the three occupants in the vehicle. The occupants said that as they were driving on D Street, 

they observed a group of people gathered on the south side of 

the street. As they drove by the group of people, they heard a 

loud noise and felt the vehicle shake. The vehicle occupants 

reported that the group scattered after the gunshot, running 

toward a nearby house.

Officer Hamm started walking toward the house that the 

vehicle occupants had pointed to, and as she did, she went 

past an adjacent apartment building. She could see through the 

glass front door on the north side of the building; she observed 

a Hispanic male inside the building, standing in the hallway 

in front of an apartment unit, later determined to be apartment 

No. 2, and the door to apartment No. 2 was open. The male 

was holding some type of white towel or rag in his hands. She 

then observed another male come out of apartment No. 2, close 

the door behind him, and talk briefly with the Hispanic male. 

Officer Hamm tried to open the door to the apartment building, 

but it was locked. As she was trying to enter the building, both 

males ran in the opposite direction from her, toward another 

exit on the south side of the building. Officer Hamm ran 

around the building to chase after the two males and radioed 

for assistance from other officers.

Two police officers apprehended the two males almost 

immediately, locating them about a block away from the apartment building. The male with the white object in his hands 

was identified as Jeremy Cushing. The second male was identified as Castellanos. Officer Hamm subsequently identified 

the individuals as the same males she saw in the apartment 

building, outside apartment No. 2.

Officer Hamm and Lincoln police officer Richard Roh 

retraced the path Castellanos and Cushing had taken when 
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running from the apartment to the location where they were 

apprehended. In doing so, they found a white bathmat on the 

ground, which appeared to be the same white item Cushing was 

holding when Officer Hamm saw him in the apartment building. There was a dark red substance on the bathmat that looked 

like blood. The bathmat was wrapped around a Winchester .22 

rifle. The rifle had a round jammed in the chamber, and the 

serial number was defaced, such that it was unreadable.

The officers also located a 20-gauge shotgun leaning against 

a fence on the west side of the apartment building. The shotgun had been shortened and had a spent casing in it. Both guns 

were located on the general path that Castellanos and Cushing 

would have taken as they ran from the apartment building.

Police officers entered the apartment building and located 

apartment No. 2. Officer Hamm, who was not one of the officers inside the apartment building, testified that she heard on 

the radio that the officers observed boot prints on the front 

door of apartment No. 2 and that there was damage to the 

doorframe, such that it appeared it had been kicked in at some 

point. In addition to that information, she was aware that there 

had been a shooting of the maroon sport utility vehicle and 

that two people had fled from apartment No. 2, one carrying a 

gun wrapped in a bathmat that had a red substance on it that 

looked like blood. Officer Hamm testified that based upon this 

information, the officers were concerned that there might be 

some sort of emergency in apartment No. 2, such that the life 

or health of others inside the apartment might be in jeopardy 

and they might need assistance. The officers made the decision 

to enter apartment No. 2.

Lincoln police officer Max Hubka was one of the officers 

who entered apartment No. 2. He testified that before entering 

apartment No. 2, he had been informed that a gun had been 

discharged, causing damage to a vehicle, that there was reason 

to believe someone may have been injured, and that there was 

preexisting damage to the door, which appeared to have been 

kicked or forced open. Officer Hubka also testified that before 
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going into apartment No. 2, he knew that Castellanos lived at 

the apartment, that he was a member of a gang, and that the 

gang was known to have weapons. Officer Hubka further testified that the police were working on another shooting at that 

time involving the same gang.

Officer Roh, who was with Officer Hamm and not inside 

the apartment building, testified that he believed there was an 

immediate need to enter apartment No. 2 based on the information the officers had at the time, which included that a vehicle 

had been shot; two individuals ran out of the apartment building, one carrying something white; and a rifle was found that 

was wrapped in a white bathmat with a substance on it that 

was possibly blood. Further, other officers in the hallway of the 

apartment building observed damage to the door to apartment 

No. 2, there were black marks on the door that looked like shoe 

marks, and it looked as if it had been kicked in. Roh testified 

the officers thought that there had possibly been a robbery and 

that someone could be injured inside apartment No. 2.

Sgt. Thomas Ward with the Lincoln Police Department 

testified that he made the decision to enter apartment No. 2 

to make sure no one was injured inside. He testified that he 

made that decision based on the gunfire that struck a vehicle 

near the apartment building; the two males that ran out of 

the apartment building in the opposite direction of Officer 

Hamm, one of them carrying a white bathmat; the rifle, 

wrapped in a white bathmat, found when officers retraced the 

path of the two males; and the red substance on the bathmat 

that the officers thought could be blood. Sergeant Ward also 

testified that Cushing told one of the officers that when he 

arrived at Castellanos’ apartment, the door had been kicked 

in, and that it appeared to the officers the door had in fact 

been kicked in.

Lincoln police officer Matthew Pulec was the officer that 

apprehended Cushing. Officer Pulec stated in his police report 

that after he apprehended Cushing, he asked him if he knew 

anything about the discharge of a firearm in the area. Cushing 
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did not indicate that he knew anything about the shooting, but 

told Officer Pulec that he had been at Castellanos’ apartment 

only a short time before he saw Officer Hamm at the front 

entrance. He further stated that when he arrived at Castellanos’ 

apartment, he observed the front door to have been kicked in 

and thought Castellanos might have been robbed.

When the police officers entered the apartment to check if 

anyone was injured or needed assistance, they did not find anyone inside the apartment. The officers observed several items 

of drug paraphernalia in plain view. Subsequently, Officer 

Hamm applied for and obtained a search warrant for apartment 

No. 2. When the search warrant was executed, a number of 

items were seized, including items of narcotics and ammunition for both guns that had been found.

Following the hearing, the trial court overruled Castellanos’ 

motion to suppress, finding that the police were reasonably 

justified in their belief that an emergency might exist in 

apartment No. 2 such that immediate assistance might be 

needed to protect life. A jury trial was subsequently held, and 

Castellanos renewed his objections to evidence based on his 

motion to suppress.

After trial had started, the State discovered evidence that 

the Winchester .22 rifle had been stolen, which the State was 

not previously aware of, and it moved for a determination of 

whether such evidence would be deemed “rule 404” evidence. 

See Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 

2016). The court held a hearing on the matter, and the following evidence was adduced:

Richard Lorance testified that he used to own a Winchester 

“Model 190” .22 rifle, which he kept in his bedroom closet in 

his house. He kept the rifle in a corner of the closet and had 

clothes on top of it. It was not secured in a gun safe, and the 

closet door did not lock. He also testified that his bedroom 

door had a lock on it, but that he did not keep it locked.

Lorance testified that between October 2015 and February 

2016, his roommate would occasionally have visitors over to 
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the house, including Castellanos, who would typically come 

in the back door or through the roommate’s bedroom window. 

Lorance testified that sometime around Christmas 2015, he 

discovered that his .22 rifle was missing. He told his roommate about it and then waited awhile to see if the rifle would 

get returned, but it was never returned. In February 2016, he 

contacted the police and reported it stolen.

Lorance testified that the serial number on the rifle was 

intact when he last had it and that he had the serial number stored on a document on his computer, which had since 

“crashed.” He gave police permission to search his computer in an effort to retrieve the document containing the 

serial number. He was shown a document containing a list 

of serial numbers, passwords, and model numbers, including 

the serial number for a Winchester .22 rifle, and testified that 

it was the document he had stored on his computer before it 

quit working.

Lorance was also shown the Winchester .22 rifle found in 

this case, and he testified that it was the same make and model 

as the one he owned, but said that he was not entirely sure if 

it was his, because it was a very common rifle, the stock had 

been cut, there was tape around the end of the receiver, and 

the serial number had been removed. He recalled that his rifle 

had a “finicky” receiver and noticed that the one recovered in 

this case did as well.

For purposes of the rule 404 hearing, the State also introduced a laboratory report from Kent Weber, a forensic scientist 

with the Nebraska State Patrol crime laboratory. Weber’s report 

indicated that the Winchester .22 rifle recovered in this case 

was examined by the crime laboratory, which included chemical processing of the defaced serial number, resulting in a full 

recovery of the serial number. It was determined that the rifle’s 

serial number was the same as the one Lorance had owned and 

reported stolen.

The trial court found that the evidence regarding Lorance’s 

stolen Winchester .22 rifle was inextricably intertwined with 
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Castellanos’ charges and, therefore, was not excludable under 

rule 404 and was admissible.

The jury trial continued after the rule 404 evidence hearing. Officer Hamm was the primary officer to testify about 

the events leading up to Castellanos’ arrest, and her testimony 

was consistent with the testimony she gave at the hearing on 

the motion to suppress. Lorance testified at trial, and his testimony was also consistent with the testimony he gave at the 

rule 404 hearing.

Weber testified about recovering the serial number on the 

.22 rifle, as well as other testing he performed on both guns 

recovered at the scene. He testified that the serial number was 

not visible when he received the rifle at the laboratory, but 

that by using a chemical reagent, he was able to read the serial 

number that had been defaced.

At the conclusion of the trial, the jury found Castellanos 

guilty of both charges. He was sentenced to 6 to 8 years’ 

imprisonment for possession of a firearm by a prohibited person and 1 to 2 years’ imprisonment for possession of methamphetamine. His sentences were ordered to run concurrently.

ASSIGNMENTS OF ERROR

Castellanos assigns that the trial court erred in (1) overruling his motion to suppress, (2) admitting rule 404 evidence 

under the inextricably intertwined exception, and (3) failing to 

give his proposed jury instructions.

STANDARD OF REVIEW

[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. 

Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of 

law that an appellate court reviews independently of the trial 
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court’s determination. State v. Nolt, 298 Neb. 910, 906 N.W.2d 

309 (2018).

[2] In reviewing a trial court’s denial of a motion to suppress 

evidence obtained by a warrantless search under the emergency 

doctrine, an appellate court employs a two-part standard in 

which the first part of the analysis involves a review of the 

historical facts for clear error and a review de novo of the trial 

court’s ultimate conclusion that exigent circumstances were 

present. Where the facts are largely undisputed, the ultimate 

question is an issue of law. State v. Salvador Rodriguez, 296 

Neb. 950, 898 N.W.2d 333 (2017).

[3,4] An appellate court reviews for abuse of discretion 

a trial court’s evidentiary rulings on the admissibility of a 

defendant’s other crimes or bad acts under rule 404(2), or 

under the inextricably intertwined exception to the rule. See 

State v. Burries, 297 Neb. 367, 900 N.W.2d 483 (2017). An 

abuse of discretion occurs when a trial court’s decision is 

based upon reasons that are untenable or unreasonable or if 

its action is clearly against justice or conscience, reason, and 

evidence. Id.

[5-7] To establish reversible error from a court’s failure to 

give a requested jury instruction, an appellant has the burden 

to show that (1) the tendered instruction is a correct statement 

of the law, (2) the tendered instruction was warranted by the 

evidence, and (3) the appellant was prejudiced by the court’s 

failure to give the requested instruction. First Nat. Bank North 

Platte v. Cardenas, 299 Neb. 497, 909 N.W.2d 79 (2018). It 

is not error for a trial court to refuse a requested instruction 

if the substance of the proposed instruction is contained in 

those instructions actually given. Id. If the instructions given, 

which are taken as a whole, correctly state the law, are not 

misleading, and adequately cover the issues submissible to a 

jury, there is no prejudicial error concerning the instructions 

and necessitating a reversal. Id.
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ANALYSIS

Motion to Suppress.

Castellanos first assigns that the trial court erred in overruling his motion to suppress all evidence obtained from his 

apartment. He argues that the initial warrantless entry into 

his apartment was unlawful and that therefore, any evidence 

obtained during the subsequent search pursuant to the search 

warrant was inadmissible as fruit of the poisonous tree and 

should have been suppressed. The trial court found that the 

initial warrantless entry was justified under the “emergency 

doctrine” and that therefore, any evidence obtained as a 

result of the initial search or the subsequent search warrant 

was lawful.

[8,9] Searches without a valid warrant are per se unreasonable, subject only to a few specifically established and welldelineated exceptions that must be strictly confined by their 

justifications. State v. Salvador Rodriguez, supra. The State has 

the burden of showing the applicability of one or more of the 

exceptions to the warrant requirement. Id.

[10] In the case of entry into a home, a police officer who 

has obtained neither an arrest warrant nor a search warrant cannot make a nonconsensual and warrantless entry in the absence 

of exigent circumstances. Id.

[11] The emergency doctrine is a category of exigent circumstances. State v. Salvador Rodriguez, 296 Neb. 950, 898 

N.W.2d 333 (2017). The elements of the emergency doctrine 

are that (1) the police must have reasonable grounds to believe 

there is an immediate need for their assistance for the protection of life or property and (2) there must be some reasonable 

basis to associate the emergency with the area or place to be 

searched. Id.

[12] The first element considers whether there were reasonable grounds to find an emergency, and the second element considers the reasonableness of the scope of the search. 

Id. Castellanos focuses primarily on the first element and 

argues that reasonable police officers would not have had 
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grounds under the facts of this case to believe there was an 

immediate need for their assistance for the protection of life 

or property.

[13-15] An action is reasonable under the Fourth Amendment, 

regardless of the individual officer’s state of mind, as long as 

the circumstances viewed, objectively, justify the action. State 

v. Salvador Rodriguez, supra. The presence of an emergency, 

like probable cause, hinges on the reasonable belief of the officers in light of specific facts and the inferences derived therefrom, not whether, in hindsight, one actually existed. Id. The 

first element of the emergency doctrine is similar to probable 

cause and asks whether the facts available to the officer at the 

moment of entry warranted a person of reasonable caution to 

believe that entry was appropriate. Id.

In the present case, based on the totality of the circumstances, the police officers had a reasonable belief that there 

was an immediate need to enter Castellanos’ apartment. The 

police were responding to a shooting that had just occurred in 

the immediate area, in which a vehicle was struck. After the 

occupants of the vehicle pointed in the direction people had 

scattered after the shooting, Officer Hamm saw two males 

inside a nearby apartment building. One of the males, Cushing, 

was holding what appeared to be a white towel or something 

similar, and the second male, Castellanos, had just come out of 

apartment No. 2. The two males ran when Officer Hamm tried 

to open the door to the building and went out an opposite exit 

of the building. The two men were quickly apprehended. When 

officers retraced Castellanos and Cushing’s path, they found a 

white bathmat on the ground, which appeared to be the same 

white towel Officer Hamm saw Cushing holding when he was 

standing in the hallway outside apartment No. 2. The bathmat 

had a red substance on it that appeared to be blood, and there 

was a .22 rifle wrapped inside the bathmat. The officers also 

found a 20-gauge shotgun leaning against a fence outside 

the apartment building. The shotgun had a spent casing in 

the chamber.
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The officers went inside the apartment building and located 

apartment No. 2, where Officer Hamm had seen Castellanos 

and Cushing. Prior to entering apartment No. 2, they saw 

boot or shoe marks on the door of the apartment and the door 

appeared to have been kicked in, because there was damage 

to the doorframe. The officers also knew prior to entering the 

apartment that Castellanos lived in the apartment and that he 

was a member of a gang. The officers were familiar with the 

gang, which was known to have weapons, and police were in 

the process of investigating another shooting involving the 

gang. Cushing had also told Officer Pulec when he was apprehended that when he arrived at Castellanos’ apartment that 

night, he saw that the door had been kicked in and thought 

Castellanos might have been robbed. The officers then entered 

the apartment for the sole purpose of making sure there was no 

one in the apartment in need of assistance. Once inside, they 

remained there only long enough to determine whether there 

was anyone inside the apartment.

In our de novo review, we agree with the trial court that 

based on facts known to the officers before entering the apartment, they had reasonable grounds to believe there was an 

immediate need for their assistance for the protection of life 

or property. We also conclude that the officers had a reasonable basis to associate the emergency with apartment No. 2. 

Accordingly, the initial warrantless entry was justified under 

the emergency doctrine, and therefore, any evidence obtained 

as a result of the initial search or the subsequent search warrant was lawful. The trial court did not err in overruling 

Castellanos’ motion to suppress.

[16] Further, even if we were to conclude the initial entry 

into the apartment did not satisfy the elements of the emergency doctrine, the evidence obtained pursuant to the search 

warrant still would have been admissible. The affidavit seeking the search warrant contained information independent from 

the facts derived from the initial short sweep of the apartment; such independent facts included the officer’s detailed 
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summation of the entire incident, from hearing the gunshot to 

apprehending Castellanos and Cushing, as well as the discovery of the guns and white bathmat nearby. And although the 

search warrant sought authorization to seize controlled substances and related items, it also sought firearms, ammunition, 

loading devices, magazines, and other firearm paraphernalia—

all of which were independently supported by the facts leading 

up to the discovery of the two guns found nearby. See State 

v. Guilbeault, 214 Neb. 904, 336 N.W.2d 593 (1983) (where 

affidavit used for purpose of obtaining search warrant includes 

both illegally obtained facts as well as facts derived from independent and lawful sources, valid search warrant may issue if 

lawfully obtained facts, considered by themselves, establish 

probable cause to issue warrant; not all evidence obtained is 

considered fruit of poisonous tree, and such evidence may be 

admitted if there is sufficient independent basis for discovery 

of evidence).

Rule 404 Evidence.

Castellanos next assigns that the trial court erred by admitting Lorance’s testimony about his missing .22 rifle. He contends that this evidence was inadmissible under rule 404, and 

not subject to the inextricably intertwined exception.

Rule 404(2) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show 

that he or she acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of 

motive, opportunity, intent, preparation, plan, knowledge, 

identity, or absence of mistake or accident.

[17,18] It should be noted that rule 404(2)’s list of permissible purposes is not exhaustive. Nonetheless, under our decisional law, rule 404(2) does not apply to evidence of a defendant’s other crimes or bad acts if the evidence is inextricably 

intertwined with the charged crime. State v. Burries, 297 Neb. 

367, 900 N.W.2d 483 (2017). Inextricably intertwined evidence 
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includes evidence that forms part of the factual setting of 

the crime, or evidence that is so blended or connected to the 

charged crime that proof of the charged crime will necessarily 

require proof of the other crimes or bad acts, or if the other 

crimes or bad acts are necessary for the prosecution to present 

a coherent picture of the charged crime. Id.

Castellanos argues that Lorance’s testimony does not provide information that would form the factual setting for either 

possession of a controlled substance or possession of a firearm by a prohibited person. We disagree. Lorance’s testimony 

about his missing .22 rifle was connected to the charge of 

possession of a firearm by a prohibited person. The parties 

stipulated at trial that Castellanos was a prohibited person on 

the date in question, so the only issue the State had to prove 

was whether Castellanos possessed either the shotgun or the 

.22 rifle. Lorance testified that his .22 rifle was missing and 

presumably stolen less than 2 months before the incident 

that led to the charges against Castellanos. Castellanos was 

at Lorance’s house on multiple occasions during the timeframe that the gun went missing and would have had access 

to the rifle, because it was kept in Lorance’s unlocked bedroom closet.

Further, the evidence at the rule 404 hearing and at trial 

showed that the .22 rifle recovered by the officers had the 

same serial number as the one owned by Lorance, confirming that the gun recovered was Lorance’s gun. Lorance had a 

document on his computer which contained the serial number 

for his .22 rifle, and the document was recovered by the police 

department. Weber, the forensic analyst at the State Patrol 

crime laboratory, used a chemical process to reveal the defaced 

serial number on the rifle recovered by the officers. The two 

serial numbers matched. We conclude that Lorance’s testimony 

was inextricably intertwined with the charge of possession of a 

firearm by a prohibited person and that therefore, rule 404(2) 

did not apply. The trial court did not err in admitting Lorance’s 

testimony about his missing .22 rifle at trial.
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26 Nebraska Appellate Repor

STATE v. CASTELLANOS

Cite as 26 Neb. App. 310

Even if we were to conclude that Lorance’s testimony was 

not inextricably intertwined with the possession of a firearm 

by a prohibited person charge and should not have been admitted, it would nevertheless be harmless error. There was additional evidence linking Castellanos to the guns, specifically, the 

ammunition that was found in his apartment. Numerous rounds 

of .22-caliber and 20-gauge ammunition were found inside a 

closet, along with other items that belonged to Castellanos, 

including an identification card, a credit card, and a W-2 form. 

The ammunition in the closet was the same brand and had the 

same characteristics as the ammunition in the two guns found 

outside the apartment building.

Proposed Jury Instructions.

Finally, Castellanos assigns that the trial court erred in failing to give two jury instructions he proposed regarding the 

meaning of “possession.” The first instruction stated: “The 

Defendant’s mere presence in an area where items were ultimately discovered is not enough to establish that the defendant 

was in ‘possession’ of said items.” The second instruction 

stated: “Assuming an item is not found on the defendant’s person, the defendant’s proximity to the item, standing alone, is 

insufficient to prove ‘possession.’”

Castellanos argues that his proposed instructions were correct statements of the law and that because the State’s theory 

of the case rested on constructive possession, the evidence supported the instructions. He also claims that he was prejudiced 

by the court’s refusal to give his proposed instructions, because 

there is a substantial likelihood the jury’s verdict would have 

been different if his instructions had been given.

To establish reversible error from a court’s refusal to give 

a requested instruction, an appellant has the burden to show 

that (1) the tendered instruction is a correct statement of the 

law, (2) the tendered instruction is warranted by the evidence, 

and (3) the appellant was prejudiced by the court’s refusal to 

give the tendered instruction. State v. Parnell, 294 Neb. 551, 
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26 Nebraska Appellate Repor

STATE v. CASTELLANOS

Cite as 26 Neb. App. 310

883 N.W.2d 652 (2016), cert. denied ___ U.S. ___, 137 S. Ct. 

1212, 197 L. Ed. 2d 254 (2017).

The trial court instructed the jury on the material elements 

of both charges and instructed the jury that the word “possession” means “either knowingly having it on one’s person or 

knowing of the object’s presence and having control over the 

object.” It also instructed the jury that the word “knowingly” 

means “willfully or purposely.”

[19,20] The definition of the word “possession” given by 

the trial court was based on NJI2d Crim. 4.2, which reads, 

“‘Possession’ of [the object] means either knowingly having it 

on one’s person or knowing of the object’s presence and having 

control over the object.” Whenever an applicable instruction 

may be taken from the Nebraska Jury Instructions, that instruction is the one which should usually be given to the jury in a 

criminal case. State v. Freemont, 284 Neb. 179, 817 N.W.2d 

277 (2012). Further, all the jury instructions must be read 

together, and if, taken as a whole, they correctly state the law, 

are not misleading, and adequately cover the issues supported 

by the pleadings and the evidence, there is no prejudicial 

error necessitating reversal. State v. Kibbee, 284 Neb. 72, 815 

N.W.2d 872 (2012). Castellanos does not argue that the jury 

instructions given were given in error. He contends only that 

his proposed instructions also should have been given.

When the instructions are considered together, it is clear that 

the district court properly instructed the jury on the definition 

of the word “possession,” and the trial court did not err in 

refusing to give Castellanos’ proposed jury instructions.

CONCLUSION

We conclude that the trial court did not err in overruling 

Castellanos’ motion to suppress, admitting evidence under the 

inextricably intertwined exception to rule 404, and failing to 

give his proposed jury instructions. Accordingly, Castellanos’ 

convictions and sentences are affirmed.

Affirmed