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State of Nebraska, appellee, v. 

Jamey R. Green, appellant.

___ N.W.2d ___

Filed January 17, 2014. No. S-13-222.

1. Constitutional Law: Statutes: Appeal and Error. The constitutionality of a 

statute is a question of law, regarding which the Supreme Court is obligated to 

reach a conclusion independent of the determination reached by the trial court.

2. 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.

3. Jury Instructions. Whether jury instructions given by a trial court are correct is 

a question of law.

4. Motions for Mistrial: Appeal and Error. Whether to grant a motion for mistrial 

is within the trial court’s discretion, and an appellate court will not disturb its 

ruling unless the court abused its discretion.

5. Constitutional Law: Statutes. In a challenge to the overbreadth and vagueness 

of a law, a court’s first task is to analyze overbreadth.

6. ____: ____. An attack on the overbreadth of a statute asserts that language in the 

statute impermissibly infringes on a constitutionally protected right.

7. ____: ____. A statute may be unconstitutionally overbroad only if its overbreadth 

is substantial, that is, when the statute would be unconstitutional in a substantial 

portion of the situations to which it is applicable.

8. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness doctrine 

requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a 

manner that does not encourage arbitrary and discriminatory enforcement.

9. Constitutional Law: Statutes: Legislature: Notice. The more important aspect 

of the void-for-vagueness doctrine is not actual notice, but the requirement that a 

legislature establish minimal guidelines to govern law enforcement.

10. Constitutional Law: Statutes: Standing. To have standing to assert a claim 

of vagueness, a defendant must not have engaged in conduct which is clearly 

prohibited by the questioned statute and cannot maintain that the statute is vague 

when applied to the conduct of others.

11. ____: ____: ____. A court will not examine the vagueness of the law as it might 

apply to the conduct of persons not before the court.

12. ____: ____: ____. The test for standing to assert a vagueness challenge is the 

same whether the challenge asserted is facial or as applied.

13. Appeal and Error. In order to be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the brief of the 

party asserting the error.

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

Constitution protects against unreasonable searches and seizures.
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15. Constitutional Law: Warrantless Searches: Search and Seizure. 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.

16. Warrantless Searches: Search and Seizure: Probation and Parole. The U.S. 

Supreme Court has recognized that there is an exception to the warrant requirement for searches and seizures when special needs, beyond the normal need for 

law enforcement, make the warrant and probable cause requirements impracticable. A probation setting is an example of such a special need.

17. Constitutional Law: Warrantless Searches: Probation and Parole. Conditions 

in probation orders requiring the probationer to submit to warrantless searches, to 

the extent they contribute to the rehabilitation process and are done in a reasonable manner, are valid and constitutional.

18. Search and Seizure: Probation and Parole: Police Officers and Sheriffs. Law 

enforcement may conduct probation searches of probationers so long as law 

enforcement is acting under the direction of a probation officer.

19. Entrapment: Jury Instructions. When a defendant raises the defense of 

entrapment, the trial court must determine, as a matter of law, whether the 

defendant has presented sufficient evidence to warrant a jury instruction on 

entrapment.

20. Constitutional Law: Criminal Law: Entrapment: Words and Phrases. The 

entrapment defense is not of constitutional dimension. In Nebraska, entrapment 

is an affirmative defense consisting of two elements: (1) the government induced 

the defendant to commit the offense charged and (2) the defendant’s predisposition to commit the criminal act was such that the defendant was not otherwise 

ready and willing to commit the offense.

21. Entrapment: Evidence: Proof. The burden of going forward with evidence of 

government inducement is on the defendant. In assessing whether the defendant 

has satisfied this burden, the initial duty of the court is to determine whether there 

is sufficient evidence that the government has induced the defendant to commit a 

crime. The court makes this determination as a matter of law, and the defendant’s 

evidence of inducement need be only more than a scintilla to satisfy his or her 

initial burden.

22. Criminal Law: Entrapment: Estoppel. The defense of entrapment by estoppel 

consists of four elements: (1) the defendant acted in good faith before taking 

any action; (2) an authorized government official, acting with actual or apparent 

authority and who had been made aware of all relevant historical facts, affirmatively told the defendant that his or her conduct was legal; (3) the defendant 

actually relied on the statements of the government official; and (4) such reliance 

was reasonable.

23. Entrapment: Estoppel: Proof. The same burdens apply for the defense of 

entrapment by estoppel as do for traditional estoppel.

24. Entrapment: Intent. Nebraska has adopted the “origin of intent” test for entrapment: If the intent to commit the crime charged originated with the government 

rather than the defendant, the defendant was entrapped.

25. Trial: Prosecuting Attorneys. Generally, in assessing allegations of prosecutorial misconduct in closing arguments, a court first determines whether the 
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prosecutor’s remarks were improper. It is then necessary to determine the extent 

to which the improper remarks had a prejudicial effect on the defendant’s right to 

a fair trial.

26. 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.

27. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly 

granted in a criminal case where an event occurs during the course of a trial 

which is of such a nature that its damaging effect cannot be removed by proper 

admonition or instruction to the jury and thus prevents a fair trial.

28. Criminal Law: Trial: Prosecuting Attorneys: Juries. It is highly improper and 

generally prejudicial for a prosecuting attorney in a criminal case to declare to the 

jury his or her personal belief in the guilt of the defendant, unless such belief is 

given as a deduction from evidence.

29. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, 

whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; such matters are for 

the finder of fact.

30. Plea in Abatement: Appeal and Error. Any error in ruling on a plea in abatement is cured by a subsequent finding at trial of guilt beyond a reasonable doubt 

which is supported by sufficient evidence.

Appeal from the District Court for Lancaster County: John

A. Colborn, Judge. Affirmed.

Dennis R. Keefe, Lancaster County Public Defender, and 

Christopher Eickholt for appellant.

Jon Bruning, Attorney General, and Stacy M. Foust for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Heavican, C.J.

I. INTRODUCTION

Jamey R. Green was convicted of possession of a deadly 

weapon by a prohibited person and was sentenced to 2 years’ 

probation. He appeals. We affirm.

II. BACKGROUND

Green was convicted in 2007 of several felonies in Minnesota 

for which he was serving probation. Green and the State of 
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Minnesota applied with the State of Nebraska for a courtesy 

supervision of Green’s probation. An investigation was conducted by Karen Foster, a probation officer for the State of 

Nebraska. That investigation included, among other things, 

an August 29, 2011, visit by Foster to the home of Green’s 

sister, where Green was planning to reside if the transfer 

was approved. Following that investigation, Green’s transfer 

request was granted.

On September 21, 2011, Green signed paperwork agreeing 

to probation supervision by the State of Nebraska. At the time 

Green signed this paperwork, he met with Leslie Van Winkle, 

another probation officer. The courtesy supervision guidelines 

agreed to by Green stated that he “[s]hall not be in possession 

of any firearms or illegal weapons” and that he “[s]hall submit 

to a search and seizure of premises, person, or vehicle by a 

law enforcement officer or probation officer, with or without 

a warrant, day or night, to determine the presence of alcoholic 

beverages or controlled substances.” In addition, the transfer 

application submitted by Green provided that both Green and 

the Nebraska Office of Probation were bound by the conditions 

of probation as set forth in the Minnesota order of probation. 

Among other requirements, the Minnesota order of probation 

provided that Green “shall submit to random searches of his 

person, vehicle and residence.”

About a month later, Green was assigned a new probation 

officer, Kristi Bender. Bender had previously been on maternity leave, and Van Winkle had been helping with Bender’s 

caseload during her absence. On October 20, 2011, Bender met 

with Green at the probation office. In the month that followed 

that meeting, Bender spoke with Green on the telephone on at 

least one occasion.

On November 14, 2011, Bender and Foster conducted a surprise home visit at Green’s home. While on the visit, Bender 

asked to view Green’s bedroom. Upon being shown the room, 

Bender and Foster noted a sword and knife collection lining 

the walls of the bedroom. After returning to the office, Bender 

spoke with a colleague who had law enforcement experience 

to discuss whether Green was permitted to have the swords 
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and knives. Based upon that conversation, Bender thought that 

Green might have violated the law in possessing the swords 

and knives, so she contacted the Lincoln Police Department. 

The next day, after considering the matter and consulting with 

others at the police department, Joshua Zarasvand, the officer 

assigned to Bender’s call, determined that officers needed to 

examine the collection to determine whether it was legal for 

Green to possess it.

Zarasvand, along with several other uniformed officers, met 

Bender at a location near Green’s home. Zarasvand reviewed 

a copy of Green’s probation contract that was provided by 

Bender. At that point, the group approached the front door of 

the home. As part of the group was knocking on the front door, 

Officer Dawn Moore noticed that the garage door was opening. 

Moore and another officer approached the garage and found 

Green and his mother.

Bender, Zarasvand, and Officer Steven Wiese then joined 

Moore in the garage, and Bender informed Green that she 

needed to conduct a search of his residence. Green, Bender, 

Zarasvand, Moore, and Wiese then entered the home by the 

side door and went directly to the basement.

Upon entering the basement, Bender testified that the sword 

and knife collection was still set up as it had been the day 

before. Zarasvand, Moore, and Wiese all testified to the presence of the sword and knife collection. Zarasvand then asked 

Green if the swords and knives belonged to him; Green replied 

that they did. Zarasvand then placed Green under arrest. It was 

later determined that Green’s collection consisted of 46 various 

swords and knives of differing quality, blade sharpness, and 

blade length.

Green was charged in Lancaster County Court with violation of Neb. Rev. Stat. § 28-1206 (Cum. Supp. 2012), possession of a deadly weapon by a prohibited person, a Class III 

felony. Following a preliminary hearing, the charge was bound 

over to the district court and an information was filed on 

March 16, 2012.

On March 21, 2012, Green filed a plea in abatement alleging 

that there was insufficient evidence adduced at the preliminary 
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hearing to bind the case over to district court. The plea in 

abatement was overruled on April 23.

On April 25, 2012, Green filed a motion to quash on the 

ground that § 28-1206 and related statutes were unconstitutionally vague and overbroad. The motion to quash was overruled 

on May 22. Green pled not guilty on June 6.

On August 15, 2012, Green filed motions to suppress the 

searches of his residence on November 14 and 15, 2011, 

along with all items observed in or seized from his residence 

and any statements made by him during his contact with law 

enforcement during the search and arrest on November 15. His 

motions were overruled.

Trial was then held on December 10 and 11, 2012. Testimony 

was given in accordance with the facts as stated above, including a stipulation that Green was a convicted felon and testimony that various knives from the collection had blades in 

excess of 31⁄2 inches in length. In addition, Green testified in 

his own behalf that he disclosed his sword and knife collection 

on paperwork he had completed with probation in the presence of Van Winkle, but acknowledged that he did not verbally 

inform her of the collection.

Green’s sister also testified. In her testimony, she stated that 

the sword and knife collection was in place at the time that 

Foster conducted her initial home visit and that she discussed 

the collection with Foster insofar as she “asked her if [the collection] would be okay.” Green’s sister testified that Foster 

told her that “she didn’t see that [the collection] would be a 

problem.” Green’s sister did not testify that she relayed this 

information to Green.

In addition, a frequent visitor to Green’s home testified that 

she was in the house in May 2011, prior to Green’s arrival 

from Minnesota, and that the swords and knives were in place 

at that time.

At the jury instruction conference, Green requested that 

the jury be instructed on the defense of entrapment. The district court refused the instruction. Closing arguments were 

then held. During the State’s closing, the prosecutor stated 

the following:
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Typically at this stage, I would tell you there are [sic] one 

issue, maybe two that you have to decide, that we’re only 

fighting about one or two things. But in this case I don’t 

know what we’re fighting about.

The defendant admitted to you, under oath, every single element of the crime that I have to prove in order for 

you to find him guilty. . . . Green said that on the 14th 

and 15th of November of 2011, he possessed a knife. He’s 

admitted and stipulated that before that time he had been 

convicted of a felony, and that this all occurred here in 

Lancaster County, Nebraska. That’s it. That’s what I have 

to prove to you and that’s what you have to find in order 

to find him guilty. So I’m a little confused on why we’re 

here and what’s the issue.

At this point, Green objected and moved for a mistrial, arguing that “the prosecutor is arguing his personal opinion with 

respect to the evidence in this case. He’s commenting on the 

fact that we’re here in trial and he’s confused as to why we’re 

having a trial.” The district court overruled the motion for mistrial, but instructed the jury that “it is improper for attorneys 

to give their own personal opinions about the evidence and if 

[the prosecutor] has done so, you are ordered to disregard his 

personal opinions.”

Following closing arguments and jury instructions, the jury 

retired to deliberate. About 90 minutes later, the jury returned 

with a guilty verdict. Green was subsequently sentenced to 2 

years’ probation. He appeals.

III. ASSIGNMENTS OF ERROR

On appeal, Green assigns, restated and consolidated, that 

the district court erred in (1) denying his motion to quash, (2) 

denying his motions to suppress, (3) failing to instruct the jury 

on entrapment, (4) denying his motion for mistrial, (5) finding 

sufficient evidence to support his guilty verdict, and (6) denying his plea in abatement.

IV. STANDARD OF REVIEW

[1] The constitutionality of a statute is a question of law, 

regarding which the Supreme Court is obligated to reach a 
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conclusion independent of the determination reached by the 

trial court.1

[2] 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

[3] Whether jury instructions given by a trial court are correct is a question of law.3

[4] Whether to grant a motion for mistrial is within the trial 

court’s discretion, and an appellate court will not disturb its 

ruling unless the court abused its discretion.4

V. ANALYSIS

1. Motion to Quash

In his first assignment of error, Green asserts that the 

district court erred in denying his motion to quash. Green 

argues that the felon in possession statute under which he was 

charged, § 28-1206, and its definitional section, Neb. Rev. Stat. 

§ 28-1201 (Cum. Supp. 2012), are unconstitutionally vague 

and overbroad.

Section 28-1206(1) provides in relevant part that “[a]ny person who possesses a firearm, a knife, or brass or iron knuckles 

and who has previously been convicted of a felony . . . commits 

the offense of possession of a deadly weapon by a prohibited 

person.” Section 28-1201(5) defines knife as “any dagger, dirk, 

knife, or stiletto with a blade over three and one-half inches in 

length or any other dangerous instrument capable of inflicting 

cutting, stabbing, or tearing wounds.”

1 State v. Prescott, 280 Neb. 96, 784 N.W.2d 873 (2010).

2 State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013).

3 State v. Watt, 285 Neb. 647, 832 N.W.2d 459 (2013).

4 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
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[5] As a general rule, in a challenge to the overbreadth 

and vagueness of a law, a court’s first task is to analyze 

overbreadth.5

(a) Overbreadth

[6,7] An attack on the overbreadth of a statute asserts that 

language in the statute impermissibly infringes on a constitutionally protected right.6

 A statute may be unconstitutionally 

overbroad only if its overbreadth is substantial, that is, when 

the statute would be unconstitutional in a substantial portion of 

the situations to which it is applicable.7

Green argues that the statute is overbroad in that it “necessarily prohibits every item with a blade exceeding three and 

one-half inches” and “would seem to prohibit every sharp 

object a person might have in his or her possession.”8

But Green overlooks the fact that the definition of “knife” 

set forth in § 28-1201(5) does not prohibit the innocent possession of a knife with a blade in excess of 31

⁄2 inches. Rather, 

the possession of such a knife is only a violation of the law 

when the possessor, like Green, is a felon. Thus, the definition 

of a knife acts together with the criminal liability set forth in 

§ 28-1206(1) to prohibit the possession of a knife in a fairly 

narrow set of circumstances—when that knife is possessed 

by a felon. This does not infringe upon a substantial amount 

of constitutionally protected conduct, but instead acts to deter 

convicted felons from possessing dangerous weapons.9

Green’s argument that the statutes are overbroad is without merit.

(b) Vagueness

[8,9] The void-for-vagueness doctrine requires that a penal 

statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is 

5 State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002).

6 Id.

7 Id.

8 Brief for appellant at 29.

9 See State v. Jones, 198 N.J. Super. 553, 487 A.2d 1278 (1985).
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prohibited and in a manner that does not encourage arbitrary 

and discriminatory enforcement.10 The more important aspect 

of the void-for-vagueness doctrine is not actual notice, but the 

requirement that a legislature establish minimal guidelines to 

govern law enforcement.11

[10-12] To have standing to assert a claim of vagueness, a 

defendant must not have engaged in conduct which is clearly 

prohibited by the questioned statute and cannot maintain that 

the statute is vague when applied to the conduct of others.12

A court will not examine the vagueness of the law as it might 

apply to the conduct of persons not before the court.13 The 

test for standing to assert a vagueness challenge is the same 

whether the challenge asserted is facial or as applied.14

Green lacks standing to assert that § 28-1206 is vague 

because his conduct clearly violated the statute. The statute 

prohibits the possession of a knife by a felon. And “[k]nife” 

is defined in § 28-1201(5) to include a knife with a blade that 

exceeds 31⁄2 inches in length. Green was undisputedly a felon; 

the evidence presented at trial showed, Green admitted, and a 

jury found, that Green was in possession of knives with blades 

in excess of 31⁄2 inches as defined by the statute.

Green lacks standing, and therefore his argument that the 

statutes are vague is without merit, as is his first assignment 

of error.

2. Motions to Suppress

In his second assignment of error, Green assigns that the 

district court erred in denying his motions to suppress and in 

admitting the sword and knife collection and statements he 

made to law enforcement at the time of the search.

[13] While Green assigns that his statements admitting that 

the weapons were his should have been suppressed and he 

restates that assignment in the facts section of his brief, he 

10 State v. Faber, supra note 5.

11 Id.

12 Id.

13 Id.

14 Id.
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does not otherwise argue the inadmissibility of those statements. As such, the admissibility of the statements will not 

be discussed further. In order to be considered by an appellate court, an alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting 

the error.15

Green does not contest the validity of Bender and Foster’s 

first entry into his home on November 14, 2011, and acknowledges that once the officers were in his bedroom on November 

15, the sword and knife collection was in plain view. But 

Green contends the November 15 search was not done pursuant to a warrant, does not fit within an exception to the warrant 

requirement, and was not permitted by any condition of his 

probation; as such, the fruits of that search—the sword and 

knife collection—should be suppressed.

[14-17] The Fourth Amendment to the U.S. Constitution 

protects against unreasonable searches and seizures. We have 

stated that 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.16 The U.S. 

Supreme Court has recognized that there is an exception 

to the warrant requirement for searches and seizures “when 

‘special needs,’ beyond the normal need for law enforcement, make the warrant and probable-cause requirements 

impracticable.”17 A probation setting is an example of such a 

special need.18 Moreover, this court has held that “conditions 

in probation orders requiring the probationer to submit to warrantless searches, to the extent they contribute to the rehabilitation process and are done in a reasonable manner, are valid 

and constitutional.”19

15 J.P. v. Millard Public Schools, 285 Neb. 890, 830 N.W.2d 453 (2013).

16 State v. Borst, 281 Neb. 217, 795 N.W.2d 262 (2011).

17 Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S. Ct. 3164, 97 L. Ed. 2d 709 

(1987).

18 Id.

19 State v. Morgan, 206 Neb. 818, 826-27, 295 N.W.2d 285, 289 (1980).
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In this case, Green’s Nebraska probation order allowed 

for searches for drugs or alcohol at any time. Of course, the 

search at issue was not done for the purposes of searching 

for drugs and alcohol. Rather, the record is clear that probation and law enforcement were interested in examining the 

sword and knife collection. But Green’s Minnesota probation 

order included a broader search condition. Green argues that 

the Nebraska order narrowed the terms of his probation, but 

he provides no authority for his implicit assertion that the 

Minnesota condition on searches was no longer applicable. 

Indeed, the Nebraska order, which Green specifically agreed 

to, provided that all terms of the Minnesota order must continue to be complied with. Thus, Green’s contention that the 

conditions of his probation did not permit this search is without merit.

And the search condition is reasonable and related to the 

rehabilitative process. While no warrant was sought, there 

was probable cause to obtain a warrant based upon Bender 

and Foster’s viewing the sword and knife collection. In addition, the search was done during daylight hours, and the 

police located Green before conducting the search and were 

admitted into the home by Green. Given this context and the 

presence of probable cause, the search of Green’s bedroom 

was reasonable.

Green also argues that the search condition was not related 

to the rehabilitative purposes of his probation because he was 

not convicted of a weapons violation. But state law prohibits 

all felons, regardless of the underlying felony, from possessing 

a weapon,20 and Green’s probation order specifically noted that 

he was not to possess illegal weapons. The search condition 

is related to this prohibition.21 Green’s argument that there is 

no definition of an illegal weapon is without merit, as state 

law specifically sets forth the weapons which may not be possessed by a convicted felon.22

20 § 28-1206.

21 See, e.g., State v. Davis, 6 Neb. App. 790, 577 N.W.2d 763 (1998).

22 §§ 28-1201 and 28-1206.
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Finally, Green argues that the search was illegal because 

it was done by law enforcement “for the purpose of locating 

and confiscating the alleged knives and swords in . . . Green’s 

residence.”23 Green contends that the search “cannot be said to 

be a probation search [because t]he matter was turned over to 

law enforcement, whose members organized the search.”24

[18] We disagree that on these facts the search was not 

a probation search. Law enforcement may conduct searches 

of probationers so long as law enforcement is acting under 

the direction of a probation officer.25 The Eighth Circuit has 

noted that

[p]robation offices are neither designed nor staffed to 

conduct these types of searches alone. . . . Probation officers often must bring law enforcement along to ensure the 

probation officers’ safety. . . . In short, when a probationary condition authorizes searches by probation officers, 

the Fourth Amendment does not require probation officers 

to choose between endangering themselves by searching alone and foregoing [sic] the search because they 

lacked the resources and expertise necessary to search 

alone safely.26

Such was the case here. It was a probation officer, Bender, 

who originally expressed concern about the collection, and 

both Bender and Foster testified that because of safety concerns, nothing was said to Green about the collection during 

the home visit. Because of the probation office’s questions 

about the legality of the collection, Bender ultimately contacted law enforcement. Finally, Bender and her supervisor 

were present during the search. Under these circumstances, we 

conclude that the search of Green’s bedroom was done under 

the direction of probation.

This result does not change because Green was ultimately 

charged with being a felon in possession of a weapon rather 

23 Brief for appellant at 36.

24 Id. at 34.

25 See, e.g., U.S. v. Warren, 566 F.3d 1211 (10th Cir. 2009); U.S. v. Newton, 

369 F.3d 659 (2d Cir. 2004); U.S. v. Brown, 346 F.3d 808 (8th Cir. 2003).

26 U.S. v. Brown, supra note 25, 346 F.3d at 812.
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than with a probation violation.27 In the parole context, the 

Second Circuit has stated that

[a] parole officer is charged with the duty of enforcing these conditions. To hold that evidence obtained by 

a parole officer in the course of carrying out this duty 

cannot be utilized in a subsequent prosecution because 

evidence obtained directly by the police in such a manner would be excluded, would unduly immunize parolees 

from conviction.28

We find this equally applicable to the probation context.

Green’s second assignment of error is without merit.

3. Entrapment

In his third assignment of error, Green contends that the 

district court erred in not instructing the jury on the defense 

of entrapment.

[19] When a defendant raises the defense of entrapment, 

the trial court must determine, as a matter of law, whether the 

defendant has presented sufficient evidence to warrant a jury 

instruction on entrapment.29

[20-22] The entrapment defense is not of constitutional 

dimension.30 In Nebraska, entrapment is an affirmative defense 

consisting of two elements: (1) the government induced the 

defendant to commit the offense charged and (2) the defendant’s predisposition to commit the criminal act was such that 

the defendant was not otherwise ready and willing to commit 

the offense. The burden of going forward with evidence of 

government inducement is on the defendant.31 In assessing 

whether the defendant has satisfied this burden, the initial 

27 See, Latta v. Fitzharris, 521 F.2d 246 (9th Cir. 1975); United States ex rel. 

Santos v. New York State Bd. of Par., 441 F.2d 1216 (2d Cir. 1971).

28 United States ex rel. Santos v. New York State Bd. of Par., supra note 27, 

441 F.2d at 1218.

29 State v. Kass, 281 Neb. 892, 799 N.W.2d 680 (2011).

30 United States v. Russell, 411 U.S. 423, 93 S. Ct. 1637, 36 L. Ed. 2d 366 

(1973).

31 State v. Kass, supra note 29.
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duty of the court is to determine whether there is sufficient 

evidence that the government has induced the defendant to 

commit a crime.32 The court makes this determination as a 

matter of law, and the defendant’s evidence of inducement 

need be only more than a scintilla to satisfy his or her initial burden.33

[22,23] This court has also recently approved a variation 

on the traditional entrapment defense. In State v. Edwards,

34

we recognized the defense of entrapment by estoppel, which 

consists of four elements: (1) the defendant acted in good 

faith before taking any action; (2) an authorized government 

official, acting with actual or apparent authority and who had 

been made aware of all relevant historical facts, affirmatively 

told the defendant that his conduct was legal; (3) the defendant actually relied on the statements of the government official; and (4) such reliance was reasonable. The same burdens 

apply for the defense of entrapment by estoppel as do for 

traditional estoppel.35

At trial, Green sought an instruction on traditional entrapment. Specifically, Green proposed the following instruction:

The state must prove beyond a reasonable doubt that 

. . . Green was not entrapped into committing the crime of 

Possession of a Deadly Weapon by a Prohibited Person. 

Entrapment means that:

1. The idea for committing the crime of Possession 

of a Deadly Weapon came from a law enforcement officer; and

2. a law enforcement officer then talked or persuaded 

. . . Green into committing the crime of Possession of 

a Deadly Weapon by a Prohibited Person. Simply giving . . . Green the opportunity to commit the crime of 

Possession of a Deadly Weapon by a Prohibited Person is 

not the same as persuading him to commit it; and

32 Id.

33 Id.

34 State v. Edwards, 286 Neb. 404, 837 N.W.2d 81 (2013).

35 Id.
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3. . . . Green was not already willing to commit the 

crime of Possession of a Deadly Weapon by a Prohibited 

Person before a law enforcement officer talked to him.

In his brief on appeal, Green argues generally that there 

was a scintilla of evidence to support an entrapment defense 

because of the testimony of Green’s sister, who testified that 

she asked Foster during the home check if Green could have 

the sword and knife collection and that Foster told her that the 

collection was permitted.

But Green now also notes the entrapment by estoppel 

defense. From his brief on appeal, it is not clear which instruction he now argues he should have had: the traditional entrapment instruction that he requested, or the entrapment by estoppel instruction mentioned in his brief. In his reply brief, Green 

seems to more clearly suggest that the entrapment by estoppel 

instruction was appropriate.

As an initial matter, we note that Green cannot predicate 

error on the district court’s failure to give the entrapment by 

estoppel instruction when it was not asked to give that specific 

instruction. But in any case, Green is not entitled to an entrapment by estoppel instruction based upon the record.

Here, Green bears the initial burden of showing, among 

other elements, that he was affirmatively told that he could 

possess the sword and knife collection. But there is no evidence of that in the record. There is disputed evidence that 

Green’s sister was told that Green could have the collection; 

but Green’s sister is not Green. And there is no evidence that 

Green’s sister ever communicated to Green that the collection 

was permissible.

There is also evidence that Green reported the collection on 

paperwork filed with the probation office and assumed that the 

collection was permitted, because he was not told otherwise. 

But this was not an affirmative statement from an authorized 

government official, nor can Green produce the paperwork 

where he allegedly disclosed this collection.

[24] And the traditional entrapment defense actually sought 

at trial is also inapplicable in this situation. As noted above, 

entrapment consists of two elements: (1) the government 

induced the defendant to commit the offense charged and 
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(2) the defendant’s predisposition to commit the criminal act 

was such that the defendant was not otherwise ready and willing to commit the offense. Nebraska has adopted the “origin of 

intent” test for entrapment: “If the intent to commit the crime 

charged originated with the government rather than the defendant, the defendant was entrapped.”36 Put another way,

entrapment is established where police officers or their 

agents incited, induced, instigated, or lured the accused 

into committing an offense that the person otherwise 

would not have committed and had no intention of committing. It entails the conception and planning of an 

offense by an officer and the procurement of its commission by one who would have not perpetrated it, except for 

the officer’s trickery, persuasion, or fraud.37

Even assuming that Foster told Green’s sister that the collection was permissible, there is no evidence that Foster was 

attempting to trap Green into being a felon in possession of 

a weapon. Green already owned the weapons. In fact, the 

evidence suggests that Foster and the others at the probation 

office were not even clear that the collection was in violation 

of the law.

And as with the defense of entrapment by estoppel, because 

no law enforcement officer told Green that he could have the 

collection, and at most told only his sister, Green cannot prove 

that a law enforcement officer “talked or persuaded” him into 

possessing the collection.

Green’s third assignment of error is without merit.

4. Motion for Mistrial

In his fourth assignment of error, Green assigns that the 

district court erred in denying his motion for mistrial. Green 

asserts that comments made by the prosecutor during closing 

argument were prejudicial and entitle him to a mistrial. Green 

also argues that the prosecutor continued to make such comments even after the court admonished the jury to disregard the 

personal opinions of the prosecutor.

36 State v. Cain, 223 Neb. 796, 800, 393 N.W.2d 727, 731 (1986).

37 22 C.J.S. Criminal Law § 72 at 113-14 (2006).
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[25-27] Generally, in assessing allegations of prosecutorial misconduct in closing arguments, a court first determines 

whether the prosecutor’s remarks were improper.38 It is then 

necessary to determine the extent to which the improper 

remarks had a prejudicial effect on the defendant’s right to a 

fair trial.39 Before it is necessary to grant a mistrial for prosecutorial misconduct, the defendant must show that a substantial miscarriage of justice has actually occurred.40 A mistrial 

is properly granted in a criminal case where an event occurs 

during the course of a trial which is of such a nature that its 

damaging effect cannot be removed by proper admonition or 

instruction to the jury and thus prevents a fair trial.41

[28] As an initial matter, it is not clear that the prosecutor’s statements were improper. We have held that it is highly 

improper and generally prejudicial for a prosecuting attorney in 

a criminal case to declare to the jury his or her personal belief 

in the guilt of the defendant, unless such belief is given as a 

deduction from evidence.42 Here, the prosecutor indicated that 

he did not know why there was a trial because, in his view, 

there were no issues left for the jury to decide. The prosecutor 

then pointed out, correctly, that Green had admitted to every 

element that the State had to prove. So, while the prosecutor 

might have referenced his personal beliefs, it appears that such 

were a deduction from the evidence. Green further argues that 

the prosecutor persisted in making such statements even after 

the admonishment. But Green does not specifically direct us 

to the statements which he now complains about, nor did he 

object to them at the time.

38 State v. Gresham, 276 Neb. 187, 752 N.W.2d 571 (2008).

39 Id.

40 State v. Floyd, 272 Neb. 898, 725 N.W.2d 817 (2007), disapproved on 

other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727.

41 Id.

42 State v. Myers, 244 Neb. 905, 510 N.W.2d 58 (1994), overruled on other 

grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998); State v. 

Leonard, 196 Neb. 731, 246 N.W.2d 68 (1976); State v. Brooks, 189 Neb. 

592, 204 N.W.2d 86 (1973).
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But even assuming that the statements were improper, the 

remarks were not so prejudicial as to require the granting of 

a mistrial. The jury was admonished that the attorneys were 

not permitted to give their personal opinions about the case 

and that if the jury believed that the prosecutor had done so, 

it should disregard those statements. A review of the closing arguments as a whole does not suggest that Green was 

deprived of his right to a fair trial.

Green’s fourth assignment of error is without merit.

5. Plea in Abatement and

Sufficiency of Evidence

[29] In his fifth and final assignment of error, Green argues 

that there was insufficient evidence to support his conviction. 

In reviewing a sufficiency of the evidence claim, whether the 

evidence is direct, circumstantial, or a combination thereof, 

the standard is the same: An appellate court does not resolve 

conflicts in the evidence, pass on the credibility of witnesses, 

or reweigh the evidence; such matters are for the finder 

of fact.43

Green’s argument is primarily premised on the lack of evidence presented that he intended to “threaten or cause harm to 

anyone.”44 But there is no intent element for the crime of felon 

in possession of a weapon.45 The jury concluded that the evidence supported a finding of guilt because Green was a felon 

and he possessed a knife with a blade in excess of 31⁄2 inches. 

The State did not have to show, and the jury did not have to 

find, that Green intended to harm anyone with a knife.

In this case, the parties stipulated that Green was a convicted 

felon and Green admitted that the sword and knife collection, 

found in his bedroom, was his. There was sufficient evidence 

to support Green’s conviction.

[30] Green also contends that the district court erred in 

denying his plea in abatement. He argues that there was insufficient evidence to bind his case over for trial. But any error 

43 State v. Watson, 285 Neb. 497, 827 N.W.2d 507 (2013).

44 Brief for appellant at 10.

45 See § 28-1206(1).
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in ruling on a plea in abatement is cured by a subsequent 

finding at trial of guilt beyond a reasonable doubt which is 

supported by sufficient evidence.46

Green’s fifth assignment of error is without merit.

VI. CONCLUSION

The decision of the district court is affirmed.

Affirmed.

46 State v. McGee, 282 Neb. 387, 803 N.W.2d 497 (2011).