Decisions of the Nebraska Court of Appeals

STATE v. PODRAZO 489

Cite as 21 Neb. App. 489

consequences) renders that proceeding the functional equivalent of “no prior adjudication,” which eliminates consideration 

of § 43-292(6) as a ground for termination. Our review of the 

one remaining ground, § 43-292(4), reveals insufficient evidence in the record to support termination. Accordingly, we 

reverse the order of the juvenile court terminating Michael’s 

parental rights to Keisha.

Reversed.

State of Nebraska, appellee, v. 

Nicholas J. Podrazo, appellant.

___ N.W.2d ___

Filed December 10, 2013. No. A-12-257.

1. Criminal Law: Trial: Pretrial Procedure: Motions to Suppress: Appeal and 

Error. In a criminal trial, after a pretrial hearing and order denying a motion to 

suppress, the defendant must object at trial to the admission of evidence sought 

to be suppressed to preserve an appellate question concerning admissibility of 

that evidence.

2. Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error. A failure to 

object to evidence at trial, even though the evidence was the subject of a previous motion to suppress, waives the objection, and that party will not be heard to 

complain of the alleged error on appeal.

3. Trial: Evidence: Stipulations: Waiver. A concession or stipulation as to a fact 

made for the purpose of trial has the force and effect of an established fact binding on the party making the same, as well as on the court, unless the court in its 

reasonable discretion allows the concession to be later withdrawn, explained, or 

modified if it appears to have been made by improvidence or mistake.

4. 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.

5. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. 

Constitution and article I, § 7, of the Nebraska Constitution protect individuals 

against unreasonable searches and seizures by the government. These constitutional provisions do not protect citizens from all governmental intrusion, but only 

from unreasonable intrusions.

6. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless 

searches and seizures are per se unreasonable under the Fourth Amendment, 
Decisions of the Nebraska Court of Appeals

490 21 NEBRASKA APPELLATE REPORTS

subject only to a few specifically established and well-delineated exceptions, 

which must be strictly confined by their justifications.

7. Warrantless Searches. The warrantless search exceptions recognized by 

Nebraska courts include searches undertaken with consent, searches justified 

by probable cause, searches under exigent circumstances, inventory searches, 

searches of evidence in plain view, and searches incident to a valid arrest.

8. Warrantless Searches: Search and Seizure: 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.

9. Warrantless Searches: Search and Seizure: Motor Vehicles: Police Officers 

and Sheriffs. The warrantless seizure of a vehicle is lawful when the officers 

could have immediately searched the vehicle without a warrant.

10. Warrantless Searches: Motor Vehicles: Police Officers and Sheriffs: Probable 

Cause. Whether a warrantless search of a vehicle could have been conducted is 

determined by whether the vehicle was readily mobile and the officers had probable cause to believe the vehicle contained contraband or evidence of a crime.

11. Probable Cause: Words and Phrases. Probable cause escapes precise definition 

or quantification into percentages because it deals with probabilities and depends 

on the totality of the circumstances.

12. ____: ____. Probable cause is a flexible, commonsense standard. It merely 

requires that the facts available to the officer would warrant a person of reasonable caution in the belief that certain items may be contraband or stolen property 

or useful as evidence of a crime; it does not demand any showing that such a 

belief be correct or more likely true than false.

13. Probable Cause: Appeal and Error. Appellate courts determine probable 

cause by an objective standard of reasonableness, given the known facts and 

circumstances.

14. Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply, 

admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the rules when judicial discretion 

is a factor involved in determining admissibility.

15. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules 

commit the evidentiary question at issue to the discretion of the trial court, the 

admissibility of evidence is reviewed for an abuse of discretion.

16. Constitutional Law: Criminal Law: Witnesses. The Sixth Amendment provides that in all criminal prosecutions, the accused shall enjoy the right to be 

confronted with the witnesses against him and to have compulsory process for 

obtaining witnesses in his favor.

17. Judges: Evidence: Appeal and Error. The exercise of judicial discretion is 

implicit in determinations of relevancy and prejudice, and a trial court’s decision 

regarding them will not be reversed absent an abuse of discretion.

18. Evidence: Words and Phrases. Relevant evidence means evidence having any 

tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without 

the evidence.

19. Rules of Evidence: Appeal and Error. The exercise of judicial discretion is 

implicit in determinations of relevancy and admissibility under Neb. Rev. Stat. 
Decisions of the Nebraska Court of Appeals

STATE v. PODRAZO 491

Cite as 21 Neb. App. 489

§ 27-406 (Reissue 2008), and as a result, the trial court’s decision will not be 

reversed absent an abuse of discretion.

20. Trial: Evidence. The precise contours of how frequently and consistently a 

behavior must occur to rise to the level of habit cannot be easily defined or 

formulated, and admissibility depends on the trial judge’s evaluation of the particular facts of the case.

21. ____: ____. Evidence of a single incident, even if it is true, is an insufficient 

showing of a routine or habit.

22. Pretrial Procedure: Appeal and Error. A trial court has broad discretion in 

granting discovery requests and errs only when it abuses its discretion.

23. Physician and Patient: Evidence. Generally, confidential communications made 

by a patient to a physician or professional counselor for the purposes of diagnosis 

and treatment are privileged.

24. Physician and Patient: Evidence: Witnesses: Proof. Before the testimony of a 

witness is excluded under Neb. Rev. Stat. § 27-504 (Reissue 2008), the defendant 

must make a showing that the failure to produce the privileged information is 

likely to impair the defendant’s ability to effectively cross-examine the witness 

claiming the privilege. If the defendant succeeds in making such a showing, the 

court may then afford the State an opportunity to secure the consent of the witness for the court to conduct an in camera inspection of the claimed information 

and, if necessary, to turn over to the defendant any relevant material for the 

purposes of cross-examination. If the witness does not consent, the court may be 

obliged to strike the testimony of the witness.

25. Trial: Expert Witnesses. The trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an expert’s opinion.

26. Trial: Courts. A trial court has broad discretion in determining how to perform 

its gatekeeper function.

27. Expert Witnesses: Appeal and Error. The standard for reviewing the admissibility of expert testimony is abuse of discretion.

28. 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.

29. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a 

question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination reached by the trial court.

30. Jury Instructions. A trial court is not obligated to instruct the jury on matters 

which are not supported by evidence in the record.

31. Jury Instructions: Proof: Appeal and Error. 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.

32. Jury Trials: Affidavits: Appeal and Error. Errors predicated on occurrences 

during the course of voir dire examination cannot be shown by affidavit.

33. Jury Trials: Records: Appeal and Error. An appellate court will not undertake 

to resolve disputes about what is claimed to have happened, when a record of the 

voir dire examination could have been made.
Decisions of the Nebraska Court of Appeals

492 21 NEBRASKA APPELLATE REPORTS

34. Motions for Mistrial: Appeal and Error. An appellate court will not disturb a 

trial court’s decision whether to grant a motion for mistrial unless the court has 

abused its discretion.

35. Motions for New Trial: Appeal and Error. A motion for new trial is addressed 

to the discretion of the trial court, and unless an abuse of discretion is shown, the 

trial court’s determination will not be disturbed.

36. Criminal Law: Jury Misconduct: Proof. A criminal defendant claiming jury 

misconduct bears the burden of proving, by a preponderance of the evidence, (1) 

the existence of jury misconduct and (2) that such misconduct was prejudicial to 

the extent that the defendant was denied a fair trial.

37. Criminal Law: Juror Misconduct: Presumptions: Proof. In a criminal case, 

when misconduct involves a juror and a nonjuror, it gives rise to a rebuttable presumption of prejudice to the defendant which the State has the burden 

to overcome.

38. Witnesses: Juror Misconduct: Appeal and Error. An appellate court reviews 

the trial court’s determinations of witness credibility and historical fact for clear 

error and reviews de novo the trial court’s ultimate determination whether the 

defendant was prejudiced by juror misconduct.

39. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial 

depends largely on the context of the trial as a whole.

40. Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to 

grant a mistrial for prosecutorial misconduct, the defendant must show that a 

substantial miscarriage of justice has actually occurred.

41. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed 

by an appellate court only if the sentences complained of were an abuse of judicial discretion.

Appeal from the District Court for Douglas County: James T. 

Gleason, Judge. Affirmed.

Denise E. Frost and Clarence E. Mock, of Johnson & Mock, 

for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for 

appellee.

Inbody, Chief Judge, and Irwin and Riedmann, Judges.

Riedmann, Judge.

I. INTRODUCTION

Nicholas J. Podrazo appeals from his conviction in the 

district court for Douglas County for the first degree sexual 

assault and attempted first degree assault of A.T. Because we 

find no merit to Podrazo’s arguments on appeal, we affirm.
Decisions of the Nebraska Court of Appeals

STATE v. PODRAZO 493

Cite as 21 Neb. App. 489

II. BACKGROUND

1. Events Surrounding Charges

The events surrounding this case began on December 23, 

2010. At that time, A.T. was living near 22d and Maple 

Streets in Omaha, Nebraska (Maple Street residence), with her 

friends Richard Gregory, Ellen Mruz, Brett Smith, and Ashley 

Forsman. A.T., Mruz, Smith, and Forsman began drinking alcohol sometime in the afternoon on December 23. Around 7 p.m., 

A.T. and Forsman left to have dinner with A.T.’s mother. While 

they were gone, Podrazo and two other men arrived at the 

Maple Street residence; Podrazo brought a bottle of rum and a 

box of “whip-it” canisters with him. When A.T. and Forsman 

returned from dinner, they joined everyone in drinking rum, 

“doing whip-its,” and smoking marijuana.

Around 9:30 p.m., the partygoers noticed that A.T. and 

Podrazo were missing. They searched the inside and outside of 

the residence but could not find them. Mruz called Podrazo’s 

cell phone numerous times, and when he finally answered, he 

told her that he was “just driving around.” When Mruz asked 

to speak to A.T., the cell phone disconnected. Mruz and a 

couple of others noticed that A.T.’s car and keys were still at 

the house, but that Podrazo’s white Chevrolet (Chevy) Blazer 

was missing. They drove around the neighborhood in A.T.’s car 

looking for her but were unable to find her.

Around 11:15 p.m. that night, a man and his fiance were 

returning to their home near 73d and Pratt Streets in Omaha 

(Pratt Street residence), when they noticed a white Chevy 

Blazer parked in the street near their driveway. The man 

attempted to look in the windows of the Blazer, but they were 

darkly tinted and fogged over, so he could not see anything 

inside except some clothing on the front seat. He went inside 

his house, and when he looked out the window 5 or 10 minutes later, the Blazer was gone. Shortly after that, passersby 

discovered a nude, unresponsive female lying on the side of 

the road near where the Blazer had been parked and called the 

911 emergency dispatch service. An ambulance arrived a few 

minutes later and transported the female, later identified as 

A.T., to a hospital.
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494 21 NEBRASKA APPELLATE REPORTS

A.T. was initially kept sedated at the hospital, but after a 

few hours, she was allowed to wake up. She told the nurse that 

the last thing she could remember was returning to the Maple 

Street residence the previous night after eating dinner with her 

mother, and then taking a shot of rum. She did not remember 

seeing Podrazo or leaving the residence at all.

A.T. consented to a sexual assault examination. The examination revealed several bruises on her legs and a bruise near 

each eye, as well as abrasions on the back of her shoulder, the 

middle of her back, the side of her breast, and her cheek and 

nose. A.T. also had extensive injuries to her entire genital area. 

Her external vaginal area was reddened, and her hymen and 

anus were each torn in two places. She had petechial hemorrhaging, extensive purple bruising, and swelling throughout her 

entire vaginal canal, as well as bruising from the opening of 

the vagina up to and all the way around her cervix. The nurse 

who performed the examination testified at trial that A.T.’s 

injuries were “[s]evere” and caused by blunt force trauma. In 

addition to these injuries, A.T. was diagnosed with a concussion, mild hypothermia, and first-degree frostbite on one finger. Her blood alcohol content was .457 of a gram of alcohol 

per deciliter of blood.

Several of A.T.’s friends, including Smith and Joshua 

Phillips, visited her in the hospital the morning of December 

24, 2010. After speaking with A.T. at the hospital, Smith, 

Phillips, and another friend went to Podrazo’s house to confront him about what happened to A.T. Podrazo changed his 

story several times, but eventually admitted to them that he had 

sex with A.T. and that “it was rough.” Podrazo then handwrote 

a note stating that he and A.T. left the Maple Street residence 

and ended up pulling over in a neighborhood and having sex in 

his vehicle. He wrote that it “got a little crazy” and that “it was 

pretty rough.” Phillips gave that note to A.T.’s mother, who 

gave it to police.

2. Investigation

Detectives William Seaton and Kristine Love from the 

Omaha Police Department were assigned to investigate this 
Decisions of the Nebraska Court of Appeals

STATE v. PODRAZO 495

Cite as 21 Neb. App. 489

case. After speaking with the officers who responded to the 

scene at the Pratt Street residence and questioning A.T., Smith, 

Phillips, and Mruz at the hospital, the detectives were able to 

gather information on Podrazo. Specifically, they located his 

address and learned there was a 1999 white Chevy Blazer registered in his name. They went to Podrazo’s residence, which 

was in Douglas County, but outside the city limits of Omaha, 

and at the request of Seaton, three additional Omaha police 

officers and a deputy from the Douglas County sheriff’s office 

accompanied them. The law enforcement officers arrived at 

Podrazo’s residence on the evening of December 24, 2010. 

They located a white Chevy Blazer that matched the witnesses’ 

descriptions, and Seaton asked the Douglas County sheriff’s 

deputy to tow the vehicle to the city-county impound lot so that 

it could be searched and processed.

Omaha police applied for and received a search warrant for 

the Blazer on December 27, 2010, and the search was conducted that day. Blood was found in several locations inside 

Podrazo’s Blazer, and samples taken from the rear center 

seat cushion and the handle of an ice scraper found in the 

cargo compartment matched A.T.’s DNA. Podrazo was ultimately arrested and charged with first degree sexual assault 

and attempted first degree assault.

3. Motions

(a) Motion to Suppress

Prior to trial, Podrazo moved to suppress the evidence found 

in his Blazer. He argued that he did not consent to the search 

and seizure of his vehicle and that law enforcement did not 

have a warrant to search or seize the vehicle on December 

24, 2010.

Love testified at the suppression hearing that when she 

first became involved in the case, she was informed that an 

occupant of the Pratt Street residence had told officers that 

he had seen a white 1990’s Chevy Blazer with darkly tinted 

windows parked in front of his residence in the location where 

A.T. was later found lying in the street. Love stated she spoke 

with several of A.T.’s friends at the hospital on December 24, 
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496 21 NEBRASKA APPELLATE REPORTS

2010, and learned that on the prior evening, Podrazo had been 

at the Maple Street residence with A.T., and that they both 

ended up missing along with Podrazo’s white Chevy Blazer. 

Love testified Mruz told her the general location of Podrazo’s 

residence and that he drove a “white utility vehicle.” Love 

also recounted her conversation with Phillips, during which 

Phillips told her Podrazo said that A.T. had been in his vehicle 

the previous night and that they had a sexual encounter inside 

of the vehicle. Additionally, Love testified that she spoke with 

the nurse who performed A.T.’s sexual assault examination and 

learned of the nature and extent of A.T.’s injuries.

Love testified that after obtaining all of this information, 

she contacted Seaton and provided him with the information 

she had gathered. They located Podrazo’s exact address, and 

she asked Seaton to go there to make contact with Podrazo 

and see whether the white Chevy Blazer was present at the 

residence. Love explained that she was interested in the 

vehicle because, at that time, there was enough information to 

establish that the Blazer was the crime scene. After learning 

that Podrazo and his vehicle had been located at the residence, 

Love went to the residence herself and observed the vehicle 

parked in the driveway. When she arrived at Podrazo’s residence, the Douglas County sheriff’s deputy and other Omaha 

police officers were already at the scene.

Love admitted that she was not given consent to take the 

Blazer, but decided to seize it because she considered it the 

crime scene based on the information she had received from 

witnesses. She expressed concern about preserving any evidence contained in or on the Blazer. Because it was wintertime, Love was concerned that biological evidence on the 

outside of the vehicle could be destroyed or altered by wet 

snow. In addition, there were three people in the residence that 

could have moved the vehicle from its location or disrupted 

any evidence contained inside the vehicle. The court overruled 

Podrazo’s motion to suppress, concluding that police had probable cause to justify the warrantless seizure and subsequent 

search of the Blazer.
Decisions of the Nebraska Court of Appeals

STATE v. PODRAZO 497

Cite as 21 Neb. App. 489

(b) Motion to Offer Evidence

Prior to trial, Podrazo also provided notice to the court of 

his intent to offer certain evidence at trial. Specifically, he 

intended to offer evidence that A.T. admitted she is “always 

drunk or ‘high’” when she engages in sexual relations and that 

at least once prior to December 2010, A.T. had “‘blacked out’” 

and later learned that she had engaged in voluntary sexual relations while drunk and/or high. He also notified the court that 

he intended to offer evidence that in the 12 to 18 months prior 

to December 2010, A.T. had been diagnosed with mental health 

issues, substance abuse, and cognitive difficulties and at least 

twice had received inpatient and intensive outpatient treatment 

for these conditions. The court denied Podrazo’s request to 

introduce the proffered evidence.

(c) Motion for Access to 

Medical Records

Prior to trial, Podrazo requested access to A.T.’s medical and 

mental health records or, if A.T. refused to allow access to the 

records, he requested that A.T. be prohibited from testifying 

at trial. The court denied the request, concluding that A.T.’s 

records were privileged and that there was no showing that 

denial of access to the records would deny Podrazo his right to 

confront the witness.

(d) Motion to Offer 

Habit Evidence

After trial began, Podrazo moved to offer evidence under 

Neb. Rev. Stat. § 27-406 (Reissue 2008) of A.T.’s “habit” of 

alcoholic blackouts as well as wandering during intoxication 

while inappropriately dressed. Podrazo relied upon the fact that 

A.T. had been convicted of minor in possession after an incident that occurred in August 2011. On that date, police found 

A.T. walking barefoot in the street in the early morning hours, 

unsure of where she was or how she had gotten there. She 

was later determined to have a blood alcohol content of .252. 

Podrazo argued that this incident coupled with the December 

2010 incident at issue here constituted a “habit.” The court 
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498 21 NEBRASKA APPELLATE REPORTS

denied Podrazo’s motion, finding that two events separated by 

8 months were not sufficient to constitute habit.

4. Trial

The witnesses at trial testified regarding the events on 

December 23 and 24, 2010. In his defense, Podrazo called a 

consulting toxicologist, Dr. Michael Corbett, to testify. Dr. 

Corbett explained the effects alcohol has on the human body; 

specifically, that alcohol can cause “disinhibition,” which 

“makes you want to enjoy things that one probably wouldn’t 

do in a sober state.” According to Dr. Corbett, alcohol also 

impacts psychomotor skills and executive functioning, which 

is the function that will generally ensure that a person does not 

do things that “maybe one would like to do but shouldn’t do 

because he knows better in . . . a social situation.”

Dr. Corbett explained that some people will experience a 

“blackout” while drinking and that an alcoholic blackout is different from passing out, because blacking out is the inability 

to form long-term memories from short-term memories even 

though the person is totally conscious, whereas passing out 

refers to the onset of sleep. Stated more succinctly, a person is 

still conscious during a blackout, but there is no consciousness 

when one passes out. Dr. Corbett testified that other people 

cannot tell when a person is in a state of blackout. However, a 

person experiencing a blackout would most likely still display 

signs of intoxication.

Podrazo asked Dr. Corbett if he had an opinion as to 

whether A.T. experienced disinhibition from consumption of 

alcohol and whether her alcohol consumption impaired her 

judgment and executive functioning. The State objected, on 

the grounds of foundation and relevance, to Dr. Corbett’s stating these opinions, and the court sustained the objections. Dr. 

Corbett was also asked for his opinion as to when A.T.’s blackout would have ended. The court again sustained the State’s 

objections on the grounds of foundation and relevance.

5. Jury Instructions

At the jury instruction conference, Podrazo requested 

that the jury be given NJI2d Crim. 8.0, the instruction on 

the defense of intoxication. The court overruled Podrazo’s 
Decisions of the Nebraska Court of Appeals

STATE v. PODRAZO 499

Cite as 21 Neb. App. 489

request, stating that instruction 8.0 relates to intoxication by 

the defendant and was not applicable in this case.

6. Verdict and Sentencing

The jury ultimately convicted Podrazo on both counts. He 

was sentenced to 40 to 50 years’ imprisonment for the sexual 

assault conviction and a consecutive term of 10 to 16 years’ 

imprisonment for attempted assault.

7. Posttrial Motions

After trial, Podrazo moved for a new trial. He argued he 

was entitled to a new trial, inter alia, because he was denied 

pretrial access to basic juror information and because of juror 

and prosecutorial misconduct during trial. We will describe 

the factual bases for these arguments more fully in our analysis below. The district court denied Podrazo’s motion for 

new trial.

Podrazo now appeals to this court.

III. ASSIGNMENTS OF ERROR

Podrazo alleges, consolidated and restated, that the district court erred in (1) overruling his motion to suppress and 

admitting evidence from his Blazer; (2) refusing to allow him 

to introduce evidence of A.T.’s habits of blackouts and sexual relations during blackout, habitual intoxication connected 

with sexual activity, and memory impairment as a result of 

chronic substance abuse; (3) refusing him discovery access to 

A.T.’s mental health records; (4) refusing to allow Dr. Corbett 

to testify regarding the effect of A.T.’s alcohol consumption 

on her executive functioning and decisionmaking and when 

A.T.’s blackout ended; (5) refusing his proffered jury instruction; (6) refusing to admit into evidence certain exhibits 

offered in support of his motion for new trial; (7) overruling his motions for mistrial and new trial; and (8) imposing 

excessive sentences.

IV. ANALYSIS

1. Motion to Suppress

Podrazo argues that the district court erred in denying his 

motion to suppress the evidence found in his Blazer, because 
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500 21 NEBRASKA APPELLATE REPORTS

the Omaha Police Department officers acted outside the geographic boundaries of their jurisdiction and the seizure did not 

meet any of the exceptions to the warrant requirement. Before 

addressing the merits of Podrazo’s motion to suppress, we must 

address the State’s arguments that this issue has not been properly preserved for appeal.

[1,2] The State contends Podrazo failed to properly preserve 

this issue, because he did not timely renew his motion to suppress at trial. In a criminal trial, after a pretrial hearing and 

order denying a motion to suppress, the defendant must object 

at trial to the admission of evidence sought to be suppressed 

to preserve an appellate question concerning admissibility of 

that evidence. State v. Timmens, 263 Neb. 622, 641 N.W.2d 

383 (2002). A failure to object to evidence at trial, even though 

the evidence was the subject of a previous motion to suppress, 

waives the objection, and that party will not be heard to complain of the alleged error on appeal. Id.

At trial, evidence of what was seized from Podrazo’s Blazer 

was introduced through the testimony of two witnesses and the 

parties’ stipulation to the DNA test results. Podrazo did not 

object to this evidence at the time it was introduced. After the 

State rested its case in chief, Podrazo renewed his motion to 

suppress. The trial court then stated:

[M]y recollection is that we had talked in advance and the 

agreement was you needn’t make your objections at the 

time. You could renew them the first time the jury was 

out of — the first reasonable time when the jury was not 

present with the same effect as if you had made them, and 

the basis was the suppression ruling briefly.

. . . .

. . . All of that is treated as if you had appropriately 

objected. My ruling would be that the objections were 

overruled consistent with my prior order in the suppression hearing.

Based on this comment, we understand the parties agreed 

that Podrazo was not required to object at the time the evidence 

was introduced, but, rather, that he could wait until the first 

reasonable time outside the presence of the jury. The parties’ 

agreement, coupled with the fact that the trial court treated 
Decisions of the Nebraska Court of Appeals

STATE v. PODRAZO 501

Cite as 21 Neb. App. 489

Podrazo’s renewal of his motion to suppress as if he had appropriately objected, is sufficient for us to address this assignment 

of error. We caution counsel, however, that any agreements 

between them or among them and the court should appear on 

the record and not be left to a regurgitation by the court as to 

what those agreements entailed.

[3] The State also alleges that even if Podrazo properly 

renewed his objection at trial, he still waived the objections 

made in his motion to suppress, because he stipulated to the 

admission of the DNA test results. A concession or stipulation 

as to a fact made for the purpose of trial has the force and 

effect of an established fact binding on the party making the 

same, as well as on the court, unless the court in its reasonable discretion allows the concession to be later withdrawn, 

explained, or modified if it appears to have been made by 

improvidence or mistake. State v. Davis, 224 Neb. 205, 397 

N.W.2d 41 (1986). Here, Podrazo stipulated only to the fact 

that blood found on the Blazer’s rear seat cushion and an ice 

scraper found in the cargo area of the Blazer matched A.T.’s 

DNA. He did not stipulate that the blood was properly seized 

or otherwise waive any arguments made in his motion to suppress with respect to the manner in which the blood samples 

were collected. We will therefore address this assignment 

of error.

(a) Jurisdiction

Podrazo argues the evidence found in his Blazer should 

have been suppressed because the vehicle was seized by 

Omaha police officers from his residence, which is outside of 

the Omaha city limits. The State contends this argument has 

been waived for appellate review, because it was not raised 

in the trial court. We disagree because the record indicates 

the jurisdiction issue was raised at the hearing on Podrazo’s 

motion to suppress and at the hearing on his motion for 

new trial.

At the suppression hearing, testimony was elicited from 

Love that Omaha police requested a Douglas County sheriff’s deputy to accompany them to Podrazo’s residence. Love 

testified that she and Seaton asked the deputy to tow the 
Decisions of the Nebraska Court of Appeals

502 21 NEBRASKA APPELLATE REPORTS

Blazer because they knew the vehicle was located in Douglas 

County’s jurisdiction.

At the posttrial hearing on Podrazo’s motion for new trial, 

Podrazo repeated his argument that the evidence obtained from 

his Blazer should have been suppressed because Omaha police 

officers were outside their jurisdiction when the Blazer was 

seized. The court then asked the State whether it was prepared 

to address the “vehicle issue.” The following colloquy then 

took place:

[The State]: I was not considering it. I was here at the 

motion to suppress, Your Honor. I know that issue came 

up, and I believe it was addressed. I honestly don’t recall.

THE COURT: All right.

[The State]: I know I briefed the matter. I’m — I 

apologize.

THE COURT: That’s okay. Your — your contention 

would be then that because they had a deputy sheriff 

there and were acting in concert, that that made everything okay?

[The State]: Yes, Your Honor. I believe that’s what was 

at the suppression hearing.

Based on the foregoing, we conclude that this issue was presented to the trial court via both the motion to suppress and the 

motion for new trial. It was therefore properly preserved for 

our consideration on appeal.

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

we apply a two-part standard of review. Regarding historical 

facts, we review the trial court’s findings for clear error. But 

whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of 

the trial court’s determination. State v. Bromm, 285 Neb. 193, 

826 N.W.2d 270 (2013).

Podrazo claims the seizure of his Blazer was unlawful 

because Omaha police officers acted outside the geographic 

boundaries of their jurisdiction. He cites to Neb. Rev. Stat. 

§ 29-215 (Reissue 2008) to assert that “[t]he illegality of 

[Omaha police’s] seizure was not cured by the mere presence 

of the Douglas County deputy sheriff” and that the State has 
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the burden to produce affirmative evidence of an interlocal 

agreement allowing law enforcement officers to act outside 

their jurisdiction. Brief for appellant at 27.

Podrazo is misconstruing the facts of this case. Section 

29-215 authorizes law enforcement officers to act outside 

their primary jurisdiction in limited circumstances. But it was 

not Omaha police officers who performed the seizure of the 

Blazer; it was the Douglas County sheriff’s deputy. Although 

Omaha police directed the sheriff’s deputy to seize the Blazer, 

the sheriff’s deputy was the officer who actually towed the 

vehicle. Podrazo cites to no authority supporting his argument 

that these actions were unlawful and that the officers who have 

proper jurisdiction must be the ones directing the investigation, 

nor did we find any indicating this to be true.

We noted in State v. Hill, 12 Neb. App. 492, 677 N.W.2d 

525 (2004), that the detention of a suspect by an officer outside 

his jurisdiction was appropriate in part because the detention 

lasted for only a brief period before local law enforcement 

officers, whose authority was not at issue on appeal, arrived on 

the scene and effected a lawful arrest. Similarly, in this case, 

the Douglas County sheriff’s deputy, whose authority to seize 

the Blazer is not at issue, arrived at Podrazo’s residence before 

any property was seized and was the officer who towed the 

Blazer. While we recognize that the situation presented in Hill

is distinguishable from the present case, we find our rationale relevant nonetheless. We therefore find that the seizure of 

the Blazer was lawful, and the district court properly denied 

Podrazo’s motion to suppress on this basis.

(b) Warrant Exception

Podrazo also asserts that the district court erred in denying 

his motion to suppress, because his Blazer was seized without 

a warrant and none of the exceptions to the warrant requirement apply. The State contends that the vehicle was properly 

seized because it was readily mobile and officers had probable 

cause to believe it contained evidence of a crime.

[5-8] The Fourth Amendment to the U.S. Constitution and 

article I, § 7, of the Nebraska Constitution protect individuals 

against unreasonable searches and seizures by the government. 
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State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010). These 

constitutional provisions do not protect citizens from all governmental intrusion, but only from unreasonable intrusions. 

Id. Warrantless searches and seizures are per se unreasonable 

under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions, which must 

be strictly confined by their justifications. Smith, supra. The 

warrantless search exceptions recognized by Nebraska courts 

include searches undertaken with consent, searches justified by 

probable cause, searches under exigent circumstances, inventory searches, searches of evidence in plain view, and searches 

incident to a valid arrest. See id. 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. Id.

[9,10] In State v. Alarcon-Chavez, 284 Neb. 322, 821 

N.W.2d 359 (2012), the Nebraska Supreme Court upheld the 

warrantless seizure of a vehicle because it was supported 

by probable cause. In that case, police officers seized the 

defendant’s vehicle and then later searched it after obtaining 

a search warrant. The Nebraska Supreme Court explained 

that the warrantless seizure of a vehicle is lawful when the 

officers could have immediately searched the vehicle without 

a warrant. See id. Whether a warrantless search of a vehicle 

could have been conducted is determined by whether the 

vehicle was readily mobile and the officers had probable 

cause to believe the vehicle contained contraband or evidence 

of a crime. See id.

In reaching this conclusion, the court relied on federal cases 

discussing the “automobile exception” to the warrant requirement. The court pointed out that in Chambers v. Maroney, 399 

U.S. 42, 52, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970), the U.S. 

Supreme Court first recognized:

For constitutional purposes, we see no difference between 

on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the 

other hand carrying out an immediate search without a 

warrant. Given probable cause to search, either course is 

reasonable under the Fourth Amendment.
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Similarly, the Alarcon-Chavez court cited U.S. v. Brookins, 

345 F.3d 231 (4th Cir. 2003), wherein the Fourth Circuit 

upheld the warrantless seizure of a vehicle from private property because the vehicle was readily movable, the officers had 

probable cause to search the vehicle at the time it was discovered, and the probable cause factor still existed at the time of 

the search.

In Alarcon-Chavez, the Nebraska Supreme Court found that 

both elements to the automobile exception were present. First, 

the defendant’s vehicle was operational and therefore readily 

movable. In addition, probable cause supported an at-the-scene 

search, because officers knew that the victim had been severely 

injured with a knife, a knife was found in the victim’s apartment, and a set of knives with one knife missing was clearly 

visible in the defendant’s vehicle. Given probable cause to 

search the vehicle in the parking lot of the apartment, the court 

held that it was equally permissible for the officers to tow the 

vehicle and later obtain a warrant.

Podrazo argues that Alarcon-Chavez does not control this 

case, but we disagree and find that both requisites are met in 

this case. Podrazo claims his Blazer was not movable, because 

police officers had the keys and the vehicle was parked and 

locked with the windows up. Under Alarcon-Chavez, supra, 

and Brookins, supra, however, this is not the test for mobility. In Brookins, the district court concluded that on the facts 

presented—the ease with which officers could have blocked 

the defendant’s automobile and the fact that the vehicle was 

unoccupied when discovered by the officers—a warrant was 

required to search and seize the vehicle because it was not 

“readily mobile.” On appeal, the Fourth Circuit disagreed, 

viewing ready mobility as defining the nature of the use of 

the vehicle, rather than its ability to be moved by a defendant 

upon stop or seizure. Thus, the Fourth Circuit in Brookins and 

the Nebraska Supreme Court in Alarcon-Chavez found that a 

vehicle is readily movable when it is operational. This factor 

is present here.

Podrazo also argues that probable cause did not exist, 

because Podrazo made no statement, he was not arrested, 

officers did not see him commit a crime or with evidence 
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of a crime, and there was no evidence found in plain view. 

But those are not the only factors pertinent to a probable 

cause inquiry.

[11-13] Probable cause escapes precise definition or quantification into percentages because it deals with probabilities and 

depends on the totality of the circumstances. State v. Smith, 

279 Neb. 918, 782 N.W.2d 913 (2010). Probable cause is a 

flexible, commonsense standard. It merely requires that the 

facts available to the officer would warrant a person of reasonable caution in the belief that certain items may be contraband 

or stolen property or useful as evidence of a crime; it does 

not demand any showing that such a belief be correct or more 

likely true than false. Id. We determine probable cause by an 

objective standard of reasonableness, given the known facts 

and circumstances. Id.

We conclude that probable cause existed in this case because, 

based on the facts available to police at the time, it was reasonable for them to believe the Blazer contained evidence 

of a crime. Love testified at the suppression hearing that on 

December 24, 2010, she knew the Blazer was registered to 

Podrazo and that witnesses who had been at the Maple Street 

residence the previous night told her that when they noticed 

Podrazo and A.T. were missing, they discovered the Blazer 

was missing as well. Additionally, Love knew that Podrazo 

had handwritten the note admitting that he and A.T. had had 

sexual contact in the Blazer on the previous night. Moreover, 

the nurse told Love of the extent and cause of A.T.’s injuries 

that had been discovered during the sexual assault examination. 

Based on this information, it was reasonable for police officers 

to believe the Blazer contained evidence of the possible sexual 

assault of A.T. Given probable cause to search the Blazer at 

Podrazo’s residence, it was equally permissible for officers to 

tow the vehicle and later obtain a warrant. We therefore conclude that the district court did not err in overruling Podrazo’s 

motion to suppress.

2. Evidence

Podrazo argues the district court erred in refusing to allow 

him to introduce evidence of A.T.’s habits of blackouts, 
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previous sexual relations during blackout, habitual intoxication 

connected with sexual activity, and memory impairment as a 

result of chronic substance abuse. As the State points out, this 

assignment appears to address three separate motions made by 

Podrazo. We will address each individually.

(a) Other Sexual Behavior

[14,15] Podrazo alleges the district court erred in denying 

his request to offer evidence that at least once prior to the 

events in question, A.T. engaged in voluntary sexual activity during an alcoholic blackout, and that she admitted during her deposition that she is “always” drunk or high when 

she engages in sexual relations. In all proceedings where the 

Nebraska Evidence Rules apply, admissibility of evidence 

is controlled by the Nebraska Evidence Rules, not judicial 

discretion, except in those instances under the rules when 

judicial discretion is a factor involved in determining admissibility. State v. Lessley, 257 Neb. 903, 601 N.W.2d 521 

(1999). Where, as here, the Nebraska Evidence Rules commit 

the evidentiary question at issue to the discretion of the trial 

court, the admissibility of evidence is reviewed for an abuse 

of discretion. Id.

Under Nebraska’s rape shield statute, evidence of a victim’s 

prior sexual behavior or sexual predisposition is not admissible 

except under the following limited circumstances in a criminal case:

(i) Evidence of specific instances of sexual behavior by 

the victim offered to prove that a person other than the 

accused was the source of semen, injury, or other physical evidence;

(ii) Evidence of specific instances of sexual behavior of the victim with respect to the accused offered by 

the accused to prove consent of the victim if it is first 

established to the court that such behavior is similar to 

the behavior involved in the case and tends to establish a 

pattern of behavior of the victim relevant to the issue of 

consent; and

(iii) Evidence, the exclusion of which would violate the 

constitutional rights of the accused.
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Neb. Rev. Stat. § 27-412(2)(a) (Cum. Supp. 2012). Subsection 

(i) does not apply here, because there was no evidence or allegation that anyone other than Podrazo was the source of A.T.’s 

injuries. Similarly, subsection (ii) is not applicable, because 

there was no evidence of a prior sexual history between A.T. 

and Podrazo.

[16] Podrazo argues that under § 27-412(2)(a)(iii) and 

the Nebraska Supreme Court’s decision in Lessley, supra, 

the exclusion of his proffered evidence violated his right to 

confrontation and to present a full defense under the Sixth 

Amendment to the U.S. Constitution. The Sixth Amendment 

provides that “‘[i]n all criminal prosecutions, the accused 

shall enjoy the right . . . to be confronted with the witnesses 

against him; [and] to have compulsory process for obtaining 

witnesses in his favor . . . .’” Lessley, 257 Neb. at 908, 601 

N.W.2d at 526.

In Lessley, the Supreme Court found that even though evidence was inadmissible under the rape shield law, it was admissible on constitutional grounds because of a defendant’s right 

to confront his accuser. In its direct examination of the victim, 

the State introduced evidence that she was a lesbian. The trial 

court refused to allow the defendant to introduce evidence to 

contradict the victim’s denial that she told a coworker that she 

engaged in anal intercourse with men. On appeal, the Nebraska 

Supreme Court ruled that the defendant’s Sixth Amendment 

right to confront his accuser on the dispositive issue of consent 

required that he be allowed to explore this matter, because the 

direct examination regarding the victim’s sexual preference 

and experience permitted the jury to draw an inference that as 

a lesbian, she would not consent to sexual relations with the 

defendant. Finding that the evidence the defendant wanted to 

offer would have made this critical inference less probable and 

that the State had opened the door to the victim’s sexual past, 

the Supreme Court reversed the trial court’s decision not to 

allow its admission.

Lessley is distinguishable from the case at hand, because 

here, the State did not open the door by inquiring into A.T.’s 

sexual past. Any inference the jury could make that A.T. did 

not consent to sexual relations with Podrazo was based only on 
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A.T.’s testimony with respect to Podrazo himself. For example, 

A.T. testified that she had met Podrazo on only two prior 

occasions and that she did not even remember seeing him on 

December 23, 2010. The State did not adduce any testimony 

regarding A.T.’s prior sexual history, including whether she has 

previously engaged in sexual activity while under the influence or during an alcoholic blackout. Accordingly, Podrazo’s 

right to confront A.T. was not impermissibly restricted, and 

we conclude that the district court did not abuse its discretion 

in refusing to allow Podrazo to introduce evidence of A.T.’s 

sexual history.

(b) Prior Substance Abuse and 

Mental Health Issues

[17,18] Podrazo alleges the district court erred in denying 

his request to offer evidence that A.T. had previously been 

diagnosed with mental health issues, substance abuse, and 

cognitive difficulties and had received treatment for these 

conditions. He argues this evidence was relevant to A.T.’s 

credibility and the issue of her consent. The exercise of judicial discretion is implicit in determinations of relevancy and 

prejudice, and a trial court’s decision regarding them will not 

be reversed absent an abuse of discretion. See State v. AguilarMoreno, 17 Neb. App. 623, 769 N.W.2d 784 (2009). Relevant 

evidence means evidence having any tendency to make the 

existence of any fact that is of consequence to the determination of the action more probable or less probable than it 

would be without the evidence. Neb. Rev. Stat. § 27-401 

(Reissue 2008).

A.T. admitted in her deposition that she was convicted of 

minor in possession when she was in high school in 2009. 

As a result, she was required to attend a treatment program, 

which she completed in 2009. As for the mental health issues 

and cognitive difficulties Podrazo references, A.T. testified 

during her deposition that while attending treatment for her 

minor in possession conviction, she was told that her “learning was off,” but she stated that this did not make sense to 

her because she graduated from high school early with more 

credits than necessary. A.T. was also diagnosed with slight 
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anxiety and depression and was prescribed a low dose of an 

antidepressant, but she discontinued the medication in 2009 

or 2010.

Podrazo admitted that the evidence he wanted to introduce 

occurred approximately 12 to 18 months prior to December 

2010, when A.T. was still in high school. Although he argues 

this evidence is relevant to A.T.’s credibility, A.T. testified at 

trial that she could not remember anything between the time 

she returned to the Maple Street residence and the time she 

woke up in the hospital. We therefore cannot say the district 

court abused its discretion in refusing to allow Podrazo to 

introduce evidence of events that took place more than a year 

prior to the incident here and had no bearing on the events of 

that night or A.T.’s ability to recall them.

(c) Habit of Wandering 

and Intoxication

Podrazo argues the district court erred in denying his request 

to introduce evidence of A.T.’s “habit” of drinking to the point 

of blacking out and wandering around while intoxicated and 

inappropriately dressed.

Habit evidence is governed by § 27-406, which provides:

(1) Evidence of the habit of a person or of the routine 

practice of an organization, whether corroborated or not 

and regardless of the presence of eyewitnesses, is relevant 

to prove that the conduct of the person or organization on 

a particular occasion was in conformity with the habit or 

routine practice.

(2) Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of 

conduct sufficient in number to warrant a finding that the 

habit existed or that the practice was routine.

[19] The exercise of judicial discretion is implicit in determinations of relevancy and admissibility under § 27-406, and 

as a result, the trial court’s decision will not be reversed absent 

an abuse of discretion. Hoffart v. Hodge, 9 Neb. App. 161, 609 

N.W.2d 397 (2000).

[20,21] This court has previously noted that the “precise 

contours of how frequently and consistently a behavior must 
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occur to rise to the level of habit cannot be easily defined or 

formulated,” and thus concluded that admissibility depends on 

the trial judge’s evaluation of the particular facts of the case. 

Id. at 167, 609 N.W.2d at 403. The Nebraska Supreme Court, 

however, has concluded that evidence of a single incident, 

even if it is true, is an insufficient showing of a “routine” 

or “habit.” See State v. Edwards, 278 Neb. 55, 767 N.W.2d 

784 (2009).

In this case, Podrazo sought to establish that A.T. had a habit 

of wandering around during intoxication while inappropriately 

dressed, arguing this “habit” offered an alternative explanation for how she ended up in the position in which she was 

found near the Pratt Street residence. However, Podrazo was 

able to provide evidence of only one occasion on which A.T. 

performed this “habit.” There was no evidence that A.T. wandered away from the Maple Street residence on the night of 

December 23, 2010. The August 2011 incident alone is insufficient to establish a habit, and therefore, the district court did 

not abuse its discretion in overruling Podrazo’s motion. This 

assignment of error is without merit.

3. Access to Mental

Health Records

[22] Podrazo argues the district court erred in refusing 

to allow him discovery access to A.T.’s medical and mental 

health records pursuant to State v. Trammell, 231 Neb. 137, 

435 N.W.2d 197 (1989). A trial court has broad discretion in 

granting discovery requests and errs only when it abuses its 

discretion. State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).

At the outset, we note that the State claims this issue has 

not been properly preserved for appeal, because Podrazo did 

not renew his motion pursuant to Trammell, supra, prior 

to A.T.’s testimony at trial. The State argues that because 

Podrazo requested access to A.T.’s medical records or, in the 

alternative, that the court prevent A.T. from testifying, the 

motion should be considered a motion in limine to exclude 

A.T.’s testimony.

We disagree. In Trammell, the Nebraska Supreme Court 

held that in a situation where the defendant should be allowed 
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512 21 NEBRASKA APPELLATE REPORTS

to inquire into the witness’ current medical condition but 

the witness refuses to waive physician-patient privilege, the 

exclusion of the witness’ testimony is the remedy. Thus, 

the issue is whether the defendant should be permitted to 

inquire about the witness’ medical condition, not whether the 

witness’ testimony should be excluded. Notably, on appeal, 

Podrazo assigns and argues only that the court erred in refusing to allow him access to A.T.’s medical records, not that 

the court erred in allowing A.T. to testify. Accordingly, the 

motion that Podrazo is appealing is the discovery motion, not 

a motion in limine. We will therefore address the merits of 

this assignment.

[23,24] Generally, confidential communications made by 

a patient to a physician or professional counselor for the 

purposes of diagnosis and treatment are privileged. See Neb. 

Rev. Stat. § 27-504 (Reissue 2008). In Trammell, supra, the 

Nebraska Supreme Court recognized that a problem arises 

when attempting to accommodate the witness’ right to maintain 

the privilege and the defendant’s right to confront the witnesses 

against him. The court determined that the result is that the 

testimony of the witness is inadmissible. Before this remedy 

is available, however, the defendant must make a showing that 

the failure to produce the privileged information is likely to 

impair the defendant’s ability to effectively cross-examine the 

witness claiming the privilege. See id. If the defendant succeeds in making such a showing, the court “‘may then afford 

the state an opportunity to secure the consent of the witness 

for the court to conduct an in camera inspection of the claimed 

information and, if necessary, to turn over to the defendant 

any relevant material for the purposes of cross-examination.’” 

Id. at 143, 435 N.W.2d 201. If the witness does not consent, 

“‘the court may be obliged to strike the testimony of the witness.’” Id.

Following this procedure, the Supreme Court in Trammell

found reversible error when the victim was allowed to testify 

without allowing the defendant to discover evidence concerning the victim’s current mental health treatment. The victim 

in that case was 40 years old at the time of trial. She had 

been receiving mental health care since she was 13 and had 
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been institutionalized on three occasions, the last admission 

being when she was 27 years old. Since her last institutionalization and including at the time of the assault, the victim had been taking medication to control a psychosis. On 

appeal, the Supreme Court found that any inquiry into the 

victim’s hospitalization or treatment while she was confined 

was too remote in time to have any relevance to the matter 

at hand. The victim’s current treatment, however, was found 

to be relevant.

In this case, the trial court refused to allow Podrazo discovery access to A.T.’s medical records based on a finding that he 

had failed to show that denial of access to the records would 

deny his right to confront the witness. We conclude this was 

not an abuse of discretion. Podrazo argues that had the court 

granted his discovery motion, he “would have been able to 

ascertain if there were even more instances of [A.T.’s] conduct 

that would bolster evidence of her habits and practice regarding intoxication and sexual activities” as described above. 

Brief for appellant at 32. State v. Trammell, 231 Neb. 137, 435 

N.W.2d 197 (1989), does not authorize a “fishing expedition,” 

however. See State v. Schreiner, 276 Neb. 393, 754 N.W.2d 

742 (2008).

In addition, the victim-witness in Trammell, supra, had a 

lengthy history of psychiatric problems and was taking medication at the time of the sexual assault to control them. In the 

present case, Podrazo never claimed that A.T.’s ability to recall 

or recount the events of December 23, 2010, was in any way 

impaired due to a mental condition or psychotropic medication, about which he was entitled to inquire. In fact, A.T. 

admitted she was unable to remember the events of December 

23 anyway, so any medical condition or treatment would 

have no bearing on her testimony surrounding the events that 

occurred that evening. Accordingly, this assignment of error 

is meritless.

4. Expert Testimony

[25-28] Podrazo alleges the district court erred in restricting 

the testimony of Dr. Corbett. The trial court acts as a gatekeeper to ensure the evidentiary relevance and reliability of an 
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514 21 NEBRASKA APPELLATE REPORTS

expert’s opinion. State v. Huff, 282 Neb. 78, 802 N.W.2d 77 

(2011). A trial court has broad discretion in determining how 

to perform its gatekeeper function. Id. The standard for reviewing the admissibility of expert testimony is abuse of discretion. State v. Casillas, 279 Neb. 820, 782 N.W.2d 882 (2010). 

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.

Specifically, Podrazo claims Dr. Corbett should have been 

allowed to state his opinion regarding the effect of A.T.’s 

alcohol consumption on her executive functioning and decisionmaking and regarding when A.T.’s blackout ended on 

December 23 or 24, 2010. The trial court sustained the State’s 

objections to these opinions on the grounds of foundation 

and relevance. Through Dr. Corbett’s testimony, Podrazo was 

attempting to establish that despite A.T.’s high blood alcohol 

content on the morning of December 24, because she was an 

experienced drinker with a high tolerance for alcohol, her decisionmaking was not nearly as affected as that of someone with 

a lower tolerance. This could then lead the jury to infer that 

A.T. still could have formed the capacity to consent to sexual 

activity with Podrazo.

Dr. Corbett explained that in general, people can develop a 

tolerance to alcohol and become less impacted by its effects. 

With respect to A.T.’s tolerance, however, the court granted 

the State’s objection to Dr. Corbett’s testifying that he read 

in A.T.’s deposition that she admitted she has a very high 

tolerance for alcohol. The court noted for the jury that any 

evidence relating to A.T.’s drinking was limited to the day of 

the incident. Thus, there was no admissible evidence regarding 

A.T.’s history of drinking and corresponding high tolerance 

upon which Dr. Corbett could base his opinion as to whether 

alcohol affected A.T.’s decisionmaking on December 23, 2010. 

Because Dr. Corbett did not demonstrate that he had any scientific way of determining whether A.T.’s decisionmaking was 

affected solely based on the data he reviewed and the admissible evidence, we cannot conclude that the district court abused 
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its discretion in finding there was insufficient foundation for 

this opinion.

Similarly, it was not an abuse of discretion for the district 

court to refuse to allow Dr. Corbett to opine as to when A.T.’s 

blackout ended. Dr. Corbett explained that most total blackouts end when a person has gone through a sleep cycle and 

wakes up. Based on A.T.’s deposition, Dr. Corbett knew that 

her blackout began shortly after she returned to the Maple 

Street residence after eating dinner. He also knew, based on 

the police reports, that she was found unconscious in the street 

shortly before midnight. Dr. Corbett testified that the unconscious condition in which A.T. was discovered was consistent 

with the “pass-out” that comes after a blackout. He admitted, 

however, that he was unable to determine when A.T.’s period 

of unconsciousness began. Based on this testimony, the trial 

court properly sustained the State’s foundational objection to 

Dr. Corbett’s opinion as to when A.T.’s blackout ended, and we 

reject this assignment of error.

5. Jury Instruction

[29,30] Podrazo claims the district court erred in refusing 

his proffered jury instruction. Podrazo requested that the jury 

be instructed on the defense of intoxication. This instruction provides:

There has been evidence that the defendant was intoxicated at the time that the (here insert crime) with which 

(he, she) is charged was committed.

Intoxication is a defense only when a person’s mental 

abilities were so far overcome by the use of (alcohol, 

drugs) that (he, she) could not have had the required 

intent. You may consider evidence of (alcohol, drug) use 

along with all the other evidence in deciding whether the 

defendant had the required intent.

NJI2d Crim. 8.0. Whether a jury instruction is correct is a 

question of law, regarding which an appellate court is obligated to reach a conclusion independent of the determination 

reached by the trial court. State v. Smith, 282 Neb. 720, 806 

N.W.2d 383 (2011). A trial court is not obligated to instruct 
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516 21 NEBRASKA APPELLATE REPORTS

the jury on matters which are not supported by evidence in the 

record. Id.

Podrazo argues the circumstantial evidence establishes that 

he was intoxicated on the night of December 23, 2010. He 

directs the court’s attention to witness testimony that he was 

part of the group that night, drinking alcohol and using drugs, 

and to his handwritten note confirming that he and A.T. had 

been drinking, that things “got a little crazy,” and that “it was 

pretty rough.”

According to our review of the record, all of the witnesses 

who testified at trial remembered seeing Podrazo at the Maple 

Street residence on the night of December 23, 2010, but none 

were able to describe his condition. The only evidence about 

Podrazo’s drinking came from Smith, who testified that he 

saw Podrazo “take some shots,” and from Podrazo’s note in 

which he confirmed that he had been drinking. While this evidence may support Podrazo’s claim that he was drinking, it is 

insufficient to establish that he was intoxicated to the extent 

that his mental abilities were overcome by the use of alcohol 

or drugs.

[31] 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. Wisinski, 268 

Neb. 778, 688 N.W.2d 586 (2004). Because the record does 

not establish that the tendered instruction was warranted by the 

evidence, the district court did not err in refusing to instruct the 

jury on the defense of intoxication.

6. Exhibits in Support of

Motion for New Trial

Podrazo alleges the district court erred in refusing to admit 

into evidence exhibits 91 and 93 through 100, offered in support of his motion for new trial. At the outset, we note that the 

State argues we should decline to address this issue because 

it is not necessary to adjudicate the controversy before us. 

The State claims that the exhibits were offered in support of 
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Podrazo’s argument that he was entitled to a new trial based 

on the fact that three jurors did not disclose certain information 

during voir dire, but, the State argues, Podrazo did not assign 

or argue that ground for a new trial on appeal.

We agree that Podrazo does not argue on appeal that he was 

entitled to a new trial based on nondisclosure of information 

by certain jurors. He does, however, argue that he is entitled to 

a new trial because he was denied pretrial access to basic juror 

information and that, had he received even just the names 

of potential jurors prior to trial, he could have discovered 

the information they failed to provide during voir dire. For 

this reason, we find it necessary to address this assignment 

of error.

At the hearing on his motion for new trial, Podrazo offered 

numerous exhibits. On appeal, he challenges the court’s refusal 

to receive nine exhibits into evidence. He argues that because 

the exhibits were properly authenticated, the court should have 

received them. The ground on which the court sustained the 

State’s objections, however, was relevance, not foundation. 

Therefore, we will address whether the district court erred in 

concluding these exhibits lacked relevance.

The record reveals that two of those exhibits (exhibits 93 

and 100) were actually received without objection. The remaining exhibits include an affidavit of a senior certified law clerk 

regurgitating what occurred during voir dire, and court records 

regarding petitions for protection orders, protection orders, or 

criminal complaints involving three of the jurors.

The proffered affidavit is from a senior certified law clerk 

who assisted Podrazo’s counsel during trial. In his affidavit, 

the law clerk describes matters he heard take place during voir 

dire, such as questions posed to the potential jurors and their 

responses or lack of responses. The court admitted portions 

of the affidavit into evidence, but excluded other portions as 

hearsay or irrelevant.

[32,33] In State v. Lafler, 225 Neb. 362, 405 N.W.2d 576 

(1987), abrogated on other grounds, State v. Oldfield, 236 

Neb. 433, 461 N.W.2d 554 (1990), the Nebraska Supreme 

Court concluded that errors predicated on occurrences during the course of voir dire examination cannot be shown by 
Decisions of the Nebraska Court of Appeals

518 21 NEBRASKA APPELLATE REPORTS

affidavit. The court stated that it “will not undertake to resolve 

disputes about what is claimed to have happened, when a 

record of the voir dire examination could have been made.” 

Id. at 375, 405 N.W.2d at 585. The court, therefore, found no 

abuse of discretion when the trial court denied the defendant’s 

request to present testimony regarding the voir dire examination of the jury.

Likewise here, Podrazo could have requested that a record 

of the voir dire examination be made, but he did not. He 

attempted, through the law clerk’s affidavit, to recreate the 

record, but this is not permissible. The district court allowed 

portions of the affidavit into evidence, but refused other portions as inadmissible hearsay. The excluded portions attempted 

to re-create what occurred during voir dire, and the trial court 

did not abuse its discretion in refusing to receive those portions 

of the exhibit into evidence.

Similarly, we cannot find the district court abused its discretion in sustaining the objections to the court records on the 

basis of relevancy. At the hearing on the motion for new trial, 

Podrazo offered these exhibits in support of his argument that 

three jurors had failed to disclose during voir dire information 

regarding their involvement in domestic violence situations. 

Because we conclude that the voir dire examination not conducted on the record cannot be re-created through affidavit, 

these exhibits lack relevance to the matter before the district 

court. Without a record establishing what occurred during voir 

dire, any evidence attempting to show that certain jurors failed 

to disclose information is not relevant. Therefore, this assignment of error is without merit.

7. Motions for Mistrial

or New Trial

[34,35] Podrazo argues the district court erred in overruling 

his motions for mistrial and new trial on three bases. We will 

address each separately. We will not disturb a trial court’s decision whether to grant a motion for mistrial unless the court has 

abused its discretion. State v. Thorpe, 280 Neb. 11, 783 N.W.2d 

749 (2010). Likewise, a motion for new trial is addressed to the 

discretion of the trial court, and unless an abuse of discretion 
Decisions of the Nebraska Court of Appeals

STATE v. PODRAZO 519

Cite as 21 Neb. App. 489

is shown, the trial court’s determination will not be disturbed. 

State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).

(a) Juror Information

Podrazo claims he was entitled to a new trial because he 

was denied pretrial access to prospective juror questionnaires 

and basic information. In an attempt to obtain this information 

prior to trial, counsel contacted the office of the clerk of the 

district court and the jury commission office directly. Counsel 

admitted that she never moved the court for an order granting her access to juror information, and she did not present 

this issue to the district court until her motion for new trial. 

Accordingly, we cannot find the district court abused its discretion in refusing to grant Podrazo’s motion for new trial on 

an issue that was not presented timely to the district court for 

consideration. See State v. Caddy, 262 Neb. 38, 628 N.W.2d 

251 (2001).

(b) Jury Misconduct

Podrazo argues that the trial court erred when it overruled 

his motions for mistrial and new trial based on improper communications between a juror and an employee of the county 

attorney’s office. One of the members of the jury was a former 

courthouse employee. At a recess during the second day of 

trial, the juror recognized an employee of the Douglas County 

Attorney’s office, who was working as a victim advocate for 

the trial. The two shared a hug and engaged in a brief conversation concerning their families and personal lives but did not 

discuss the trial.

The morning of the fourth day of trial, Podrazo moved for 

a mistrial based on jury misconduct. Counsel explained the 

delay, stating that she did not become aware of the contact 

until after the third day of trial. The court initially stated that 

it was going to grant the mistrial based upon information of 

the contact’s occurring in the midst of other jurors and the 

victim witness advocate being present. The State requested 

that the court poll the jurors to determine whether any of 

them had, in fact, observed the contact, because counsel 

for the State indicated that no other jurors were present at 
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520 21 NEBRASKA APPELLATE REPORTS

the time of contact. Podrazo resisted that request. The court 

declined the State’s request, stating that polling the jurors 

would reinforce the issue, which would create a larger problem. The court ultimately concluded that it would not grant 

a mistrial, based upon the court’s impression of the jury as 

being conscientious of its duties. The court based its impression on a situation that occurred earlier in the trial in which a 

juror provided the court with a note alerting it to the fact that 

another juror was texting during testimony. The court concluded that this indicated the jury was aware of its duties and 

obligations. Based upon the admonitions to the jurors and the 

absence of any report from the jurors regarding the contact, 

the court denied the motion.

The court conducted a followup hearing on the motion for 

mistrial, at which time it questioned the county employee 

who had juror contact. Podrazo’s counsel conducted crossexamination and elicited testimony from Podrazo’s mother, 

who also observed the contact. The evidence revealed that the 

employee and the juror had contact in the rotunda area while 

A.T. and her mother were seated in the hallway outside the 

courtroom. After clarifying this information, the court restated 

its decision to deny the motion for mistrial.

At the hearing on the motion for new trial, the State 

offered an affidavit from the juror, wherein she admitted to 

the encounter but stated that she “did not further consider or 

think about this contact during any portion of the remainder of 

the trial or deliberations.” The court overruled the motion for 

new trial.

[36-38] A criminal defendant claiming jury misconduct bears 

the burden of proving, by a preponderance of the evidence, (1) 

the existence of jury misconduct and (2) that such misconduct 

was prejudicial to the extent that the defendant was denied a 

fair trial. State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). 

When the misconduct involves a juror and a nonjuror, it gives 

rise to a rebuttable presumption of prejudice to the defendant 

which the State has the burden to overcome. See id. We review 

the trial court’s determinations of witness credibility and historical fact for clear error; we review de novo the trial court’s 
Decisions of the Nebraska Court of Appeals

STATE v. PODRAZO 521

Cite as 21 Neb. App. 489

ultimate determination whether the defendant was prejudiced 

by juror misconduct. Id.

The Nebraska Supreme Court in Thorpe found the trial 

court had correctly denied the defendant’s motion for mistrial 

based on alleged juror misconduct, even though the record 

clearly showed improper communication between a juror and 

a witness. The court concluded that the State had overcome 

the presumption of prejudice to the defendant, because the 

communication was unrelated to any issue before the jury, 

the communication was to one juror only who did not share 

that communication with the other jury members, and the juror 

indicated that the communication would not affect his ability 

to remain impartial.

Similarly, in the case at hand, the record shows improper 

communication between a juror and a nonjuror. Therefore, a 

rebuttable presumption of prejudice to Podrazo arose, which 

presumption the State had the burden to overcome. We conclude the State overcame its burden to prove that Podrazo was 

not denied a fair trial, and therefore, the district court correctly 

denied Podrazo’s motions for mistrial and new trial.

Under our de novo review, we find the conversation between 

the juror and employee was not related to any of the issues at 

trial, and the juror later testified by affidavit that she did not 

further consider this contact during the trial or deliberations. 

We further find that although the jurors could have observed 

A.T. and the employee together at various times during trial, 

they were not together when the embrace occurred. A.T. was 

in the hallway outside of the courtroom, and the employee 

and juror were in the rotunda. Therefore, even if other jurors 

observed the embrace, it did not occur in the presence of A.T. 

Based upon the testimony elicited, we find that the State overcame the presumption of prejudice. As such, this argument is 

without merit.

(c) Prosecutorial Misconduct

[39,40] Based on the conversation between the county 

employee and the juror, Podrazo also alleges he was entitled to 

a mistrial or new trial on the basis of prosecutorial misconduct. 

When a prosecutor’s conduct was improper, an appellate court 
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522 21 NEBRASKA APPELLATE REPORTS

considers the following factors in determining whether the 

conduct prejudiced the defendant’s right to a fair trial: (1) the 

degree to which the prosecutor’s conduct or remarks tended to 

mislead or unduly influence the jury, (2) whether the conduct 

or remarks were extensive or isolated, (3) whether defense 

counsel invited the remarks, (4) whether the court provided a 

curative instruction, and (5) the strength of the evidence supporting the conviction. State v. Watson, 285 Neb. 497, 827 

N.W.2d 507 (2013). Whether prosecutorial misconduct is prejudicial depends largely on the context of the trial as a whole. 

Id. Before it is necessary to grant a mistrial for prosecutorial 

misconduct, the defendant must show that a substantial miscarriage of justice has actually occurred. Id.

Assuming, without deciding, that the county employee’s 

conduct was improper and could be considered prosecutorial misconduct, we conclude Podrazo has not shown that a 

substantial miscarriage of justice actually occurred or that he 

was prevented from having a fair trial. As stated above, the 

contact between the juror and the county employee was brief 

and they did not discuss the trial. The evidence is conflicting 

as to whether any of the other jurors actually witnessed the 

interaction, although it appears as though other jurors were in 

the area. It is undisputed, however, that A.T. was not present 

during the interaction. The juror involved in the interaction 

testified by affidavit that she did not further think about or 

consider the conversation during the remainder of the trial or 

deliberations. The evidence of A.T.’s injuries, her DNA found 

in Podrazo’s Blazer, and his admission that they had had sexual 

contact on the night of December 23, 2010, supported the convictions. The district court did not abuse its discretion when it 

denied Podrazo’s motions for mistrial and new trial.

8. Excessive Sentences

Podrazo alleges the court imposed excessive sentences. He 

acknowledges that it is difficult to “‘color-match’” cases when 

reviewing sentences, but argues that his sentences “are impossibly out of step with sentences of imprisonment imposed in 

other first-degree sexual assault cases.” Brief for appellant 

at 42-43.
Decisions of the Nebraska Court of Appeals

STATE v. PODRAZO 523

Cite as 21 Neb. App. 489

Podrazo was convicted of first degree sexual assault, a 

Class II felony, and attempted first degree assault, a Class III 

felony. Neb. Rev. Stat. § 28-319 (Reissue 2008); Neb. Rev. Stat. 

§ 28-308 (Cum. Supp. 2012); Neb. Rev. Stat. § 28-201(4)(b) 

(Cum. Supp. 2010). Class II felonies are punishable by 1 to 50 

years’ imprisonment, and Class III felonies are punishable by 1 

to 20 years’ imprisonment. Neb. Rev. Stat. § 28-105 (Reissue 

2008). Podrazo was sentenced to 40 to 50 years’ imprisonment on count I and a consecutive sentence of 10 to 16 years’ 

imprisonment on count II. Thus, his sentences are within the 

statutory guidelines.

[41] Sentences within statutory limits will be disturbed by 

an appellate court only if the sentences complained of were an 

abuse of judicial discretion. See State v. Bauldwin, 283 Neb. 

678, 811 N.W.2d 267 (2012). 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.

When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education and 

experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation 

for the offense, as well as (7) the nature of the offense, and 

(8) the amount of violence involved in the commission of the 

crime. Id. In imposing a sentence, the sentencing court is not 

limited to any mathematically applied set of factors. Id. The 

appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the 

defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life. Id.

The information contained in the presentence report indicates that Podrazo was 21 years old at the time of sentencing 

and led a relatively law-abiding life other than these charges. 

Other than traffic offenses, his criminal history includes a 

criminal mischief conviction and two driving under the influence convictions. During the pendency of this case, Podrazo 

attended an inpatient treatment facility for alcohol dependency. 

Podrazo graduated from high school, attended some college, 

and worked several construction jobs. The presentence report 
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524 21 NEBRASKA APPELLATE REPORTS

contained eight letters of support for Podrazo from family 

and friends.

More important in this case, of the factors for consideration, are the nature of the offense and the amount of violence 

involved in the crime. The injuries Podrazo inflicted on A.T., 

who was only 19 years old at the time of the assault, are 

described above and were characterized by medical personnel as “[s]evere.” A.T. testified that when she woke up in the 

hospital, she had pain everywhere, including in her vagina and 

anus. When she was released from the hospital on Christmas 

Day, she was still experiencing pain and had to use her hands 

to move her legs to get out of bed. She was sent home from 

the hospital with icepacks, wipes for her vaginal area to 

help with the pain, and pain medication. A letter written by 

A.T. and included in the presentence report describes the 

significant emotional, mental, and physical impact Podrazo’s 

actions had on her life. Because the sentences are supported 

by competent evidence and within the statutory guidelines, we 

conclude the district court did not abuse its discretion in the 

sentences imposed.

V. CONCLUSION

For the foregoing reasons, we find no merit to Podrazo’s 

assigned errors. We therefore affirm his convictions and 

sentences.

Affirmed.

State of Nebraska, appellee, v. 

Mathew W. Workman, appellant.

___ N.W.2d ___

Filed December 10, 2013. No. A-12-888.

1. Due Process. The determination of whether the procedures afforded an individual 

comport with the constitutional requirements for procedural due process presents 

a question of law.

2. Probation and Parole: Due Process. The minimal due process to which a 

parolee or probationer is entitled also applies to participants in the drug court 

program. This minimal due process includes (1) written notice of the time and 

place of the hearing; (2) disclosure of evidence; (3) a neutral factfinding body