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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

STATE v. FRANCO

Cite as 27 Neb. App. 360

State of Nebraska, appellee, v. 

Marlon Franco, appellant.

___ N.W.2d ___

Filed June 25, 2019. No. A-18-208.

1. Statutes. Statutory interpretation presents a question of law.

2. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

3. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for 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. The relevant question for an appellate court 

is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

4. Convictions: Corroboration: Witnesses: Testimony: Controlled 

Substances. Under the Uniform Controlled Substances Act, corroboration is sufficient to satisfy the requirement that a conviction not be based 

solely upon uncorroborated testimony of an individual cooperating with 

the prosecution if the witness’ testimony is corroborated as to material 

facts and circumstances which tend to support the testimony as to the 

principal fact in issue.

5. Criminal Law: Corroboration: Testimony. Testimony of a cooperating 

individual need not be corroborated on every element of a crime.

6. Controlled Substances. A person possesses a controlled substance 

when he or she knows of the nature or character of the substance and of 

its presence and has dominion or control over it.

7. Controlled Substances: Evidence: Circumstantial Evidence: Proof.

Possession can be either actual or constructive, and constructive possession of an illegal substance may be proved by direct or circumstantial evidence.

Nebraska Supreme Court Online Library

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

07/02/2019 09:07 AM CDT
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STATE v. FRANCO

Cite as 27 Neb. App. 360

8. Controlled Substances: Circumstantial Evidence: Intent.

Circumstantial evidence may support a finding that a defendant intended 

to distribute, deliver, or dispense a controlled substance in the defendant’s possession.

9. ____: ____: ____. Circumstantial evidence sufficient to establish possession of a controlled substance with intent to deliver may consist of 

evidence of the quantity of the substance, equipment and supplies found 

with the substance, the place where the substance was found, the manner 

of packaging, and the testimony of witnesses experienced and knowledgeable in the field.

Appeal from the District Court for Lancaster County: Robert

R. Otte, Judge. Affirmed.

Justin B. Kalemkiarian, of Berry Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and Erin E. Tangeman 

for appellee.

Riedmann, Arterburn, and Welch, Judges.

Arterburn, Judge.

INTRODUCTION

Marlon Franco appeals from a conviction, pursuant to jury 

verdict, for possession of methamphetamine with the intent to 

deliver in violation of Neb. Rev. Stat. § 28-416(1) (Reissue 

2016). On appeal, Franco alleges that a cooperating individual’s testimony was not sufficiently corroborated and that 

the jury verdict rested on insufficient evidence. We reject 

these arguments for the following reasons and, thus, affirm 

Franco’s conviction.

BACKGROUND

On March 27, 2017, Undreia Martinez’ probation officer, 

Avidan Perez, directed Martinez to report for drug testing. 

Martinez was on probation at the time due to a conviction for 

the unauthorized use of a financial transaction device. She 

tested positive for methamphetamine on March 27 and admitted her drug use to Perez. Pursuant to Martinez’ probation 
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27 Nebraska Appellate Reports

STATE v. FRANCO

Cite as 27 Neb. App. 360

order, her residence was subject to search, and Perez informed 

her that he would search her home following the positive 

drug test.

Because probation officers do not carry firearms, police 

officers often assist in searching homes, particularly when a 

probation officer anticipates the presence of drugs or weapons. Martinez admitted to Perez that there were drugs present 

in her home. Martinez also told Perez that three individuals 

were present in the home: Dylan Siefker, Jeremy Cushing, and 

Yolanda Reyes. Perez asked a second probation officer, Jaime 

Evans, and two police officers to assist in the search. They 

gathered in a nearby parking lot to formulate a plan before 

entering Martinez’ home. Perez directed Martinez, who was 

also present, to remain in the parking lot during the search.

Perez led Evans and the police officers to Martinez’ residence, where two men, later identified as Siefker and Cushing, 

were standing outside smoking. Perez ran into the home in 

order to preserve its condition. As he entered, he saw Reyes 

near the door moving toward him and a man, later identified 

as Franco, sitting on the couch. Perez asked Reyes and Franco 

to step outside. Perez noted Franco’s confused facial expression until Reyes conveyed the message to him in Spanish. 

Perez said that he did not see anything in Franco’s hands 

and that Reyes was carrying only a cell phone. Perez also 

said he did not observe any suspected drugs on the couch at 

that point.

A few seconds after Perez entered the home, Reyes and 

Franco exited, and then Evans joined Perez inside. Evans 

began searching the main level of Martinez’ home while Perez 

searched the second floor. In one room upstairs, Perez found 

marijuana; a folded dollar bill with white residue, which he 

believed to be methamphetamine; and three scales. In the 

other room upstairs, Perez found “a glass pipe with residue 

in it [and] a syringe with a needle and a spoon.” Meanwhile, 

Evans found a black zippered bag, smaller than a purse, that 

was lying on the couch. Inside the black zippered bag was a 
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STATE v. FRANCO

Cite as 27 Neb. App. 360

plastic Ziploc bag, with green coloring at the top, that contained methamphetamine. Martinez later testified that although 

she had plastic baggies in her home, they had neither the 

Ziploc seal nor the green coloring at the top. Evans said that 

the black zippered bag, with the Ziploc bag inside that contained methamphetamine, was on a couch cushion rather than 

“in the crack in between the . . . cushions.” The Ziploc bag of 

methamphetamine contained large “shards,” not salt-like crystalline. One of the police officers described the Ziploc bag of 

methamphetamine as “a lot larger than what [he] was used to 

seeing” as a street officer.

Franco was thereafter arrested and charged by criminal 

complaint on March 29, 2017, with the crime of possessing 10 

to 27 grams of methamphetamine with the intent to deliver. A 

probable cause affidavit filed in the case noted that the Ziploc 

bag of methamphetamine seized from the couch at Martinez’ 

home where Franco was sitting contained 25 grams of methamphetamine. It also noted that Franco had $230 cash on his 

person when he was arrested.

A jury trial was held from December 11 to 15, 2017. The 

State introduced numerous exhibits and offered testimony from 

11 witnesses: probation officers Perez and Evans; Martinez; 

Siefker and Cushing, who were present outside Martinez’ 

home; Rhiannon Rojas; and five police officers. Franco offered 

no evidence. In addition to the foregoing evidence, the following evidence was adduced by the State.

Martinez testified that she had used methamphetamine during the past 10 years, stopped using methamphetamine before 

she gave birth to her son, and then relapsed. In March 2017, 

Martinez allowed her friend Reyes to move into her home 

and place property in a spare second-floor bedroom. Reyes 

began providing methamphetamine to Martinez. In the days 

leading up to Martinez’ testing positive for methamphetamine 

and the probation and police officers’ searching her home on 

March 27, Martinez and Reyes obtained methamphetamine 

from Franco.
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

STATE v. FRANCO

Cite as 27 Neb. App. 360

On Friday, March 24, 2017, Martinez met Franco for the 

first time when she and Reyes went to his trailer home to get 

methamphetamine. Martinez testified that although she was 

under the influence of both alcohol and methamphetamine that 

night, she observed Franco give Reyes methamphetamine in 

exchange for cash. Martinez testified that Franco and Reyes 

spoke in Spanish, which she does not speak. Early in the morning on Sunday, March 26, Martinez and Reyes again went 

to Franco’s trailer home and smoked methamphetamine with 

Franco, supplied by him.

Rojas, who lived in the same trailer home as Franco, also 

received methamphetamine from him during February and 

March 2017. Rojas testified that she observed Franco store 

methamphetamine in Ziploc bags that were colored green at 

the top. She also testified that she knew Franco owned a black 

zippered bag, like a fanny pack, in which he sometimes stored 

his cell phone and cash but said that she never saw him keep 

methamphetamine in it. Rojas said that in the past, she had 

seen Franco with large quantities of methamphetamine, including amounts up to a half pound.

Siefker testified that he did not see Franco or anyone with 

methamphetamine at Martinez’ home on March 27, 2017. He 

also said he did not see a black bag on the couch. Cushing 

similarly testified that he did not see any methamphetamine at 

Martinez’ home on March 27.

A police officer who interviewed Franco testified that Franco 

denied any knowledge of the methamphetamine that was found 

on Martinez’ couch. Franco told the officer that he was at 

Martinez’ home to give a woman money for a hotel. Another 

police officer testified that he tested the Ziploc bag of methamphetamine for fingerprints, which yielded no result. He said 

that he only finds fingerprints on plastic bags approximately 

10 percent of the time. Another police officer with expertise 

of methamphetamine testified that the 23-gram package found 

at Martinez’ home would yield 115 individual doses, because 

there are five doses per gram.
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Nebraska Court of Appeals Advance Sheets

27 Nebraska Appellate Reports

STATE v. FRANCO

Cite as 27 Neb. App. 360

The jury found Franco guilty of possession of methamphetamine with the intent to deliver, and the court entered judgment 

accordingly. The court thereafter sentenced Franco to 4 to 10 

years’ imprisonment with credit for 302 days’ time served.

Franco now appeals.

ASSIGNMENTS OF ERROR

On appeal, Franco argues generally that the evidence was 

insufficient to support the jury’s verdict. He also specifically 

argues that Martinez was a cooperating individual whose testimony was not corroborated as required by Neb. Rev. Stat. 

§ 28-1439.01 (Reissue 2016).

STANDARD OF REVIEW

[1,2] Statutory interpretation presents a question of law. In 

re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263 (2018). We 

independently review questions of law decided by a lower 

court. Id.

[3] In reviewing a criminal conviction for 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. State v. Garcia, 302 

Neb. 406, 923 N.W.2d 725 (2019). The relevant question for 

an appellate court is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt. Id.

ANALYSIS

Corroboration of Cooperating Individual.

Franco argues that Martinez was a cooperating individual 

under § 28-1439.01 and that her testimony was not sufficiently corroborated as the statute requires. The State argues in 

response that Martinez was not a cooperating individual. We 

find that Martinez was not a cooperating individual under the 
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STATE v. FRANCO

Cite as 27 Neb. App. 360

relevant statute, and therefore, her testimony was not subject 

to the statute’s corroboration requirement.

[4,5] Nebraska law provides, “No conviction for an offense 

punishable under any provision of the Uniform Controlled 

Substances Act shall be based solely upon the uncorroborated testimony of a cooperating individual.” § 28-1439.01. 

Under the Uniform Controlled Substances Act, corroboration 

is sufficient to satisfy the requirement that a conviction not be 

based solely upon uncorroborated testimony of an individual 

cooperating with the prosecution if the witness’ testimony is 

corroborated as to material facts and circumstances which tend 

to support the testimony as to the principal fact in issue. State 

v. Savage, 301 Neb. 873, 920 N.W.2d 692 (2018), modified 

on denial of rehearing 302 Neb. 492, 924 N.W.2d 64 (2019). 

Testimony of a cooperating individual need not be corroborated on every element of a crime. Id.

For § 28-1439.01 to apply, however, the person testifying must be a “cooperating individual.” Neb. Rev. Stat. 

§ 28-401(26) (Reissue 2016) provides, “Cooperating individual 

means any person, other than a commissioned law enforcement 

officer, who acts on behalf of, at the request of, or as agent 

for a law enforcement agency for the purpose of gathering or 

obtaining evidence of offenses punishable under the Uniform 

Controlled Substances Act.” Our review of pertinent case law 

reveals cases which discuss whether, under the facts of each 

case, a cooperating individual’s testimony was adequately corroborated, but none which make a specific determination as to 

whether a particular witness meets the definition of a cooperating individual. The question in this case is whether Martinez 

acted on behalf of, at the request of, or as an agent for law 

enforcement for the purpose of gathering or obtaining evidence 

against Franco.

We find that Martinez was not a cooperating individual. 

First, we note that it seems axiomatic that a cooperating individual must perform a function greater than simply providing 

information to law enforcement regarding events that she has 
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STATE v. FRANCO

Cite as 27 Neb. App. 360

observed in the past. Cooperating individuals also often participate in some sort of quid pro quo agreement whereby investigators receive assistance from the individual in exchange for 

providing to the individual some benefit.

This quid pro quo arrangement between investigators and 

cooperating individuals is well established in our case law. For 

example, in State v. Palser, 238 Neb. 193, 469 N.W.2d 753 

(1991), the arrangement was made explicit. To induce an individual to cooperate in a controlled drug buy, officers explained 

to the cooperating individual that he “had the option of cooperating with the prosecuting authorities or a criminal complaint 

might be filed against him” for his participation in past drug 

purchases. Id. at 197, 469 N.W.2d at 757.

Similarly, in State v. Jimenez, 248 Neb. 255, 533 N.W.2d 

913 (1995), an individual cooperated with investigators in 

exchange for a reduced charge. In Jimenez, the court noted 

that corroboration may be supplied by observation of the 

cooperating individual’s meeting with the target of the investigation and searching the cooperating individual before and 

after the purchase of controlled substances. These are common 

occurrences in cases involving cooperating individuals, which 

connote active evidence gathering on the part of the cooperator. See, also, State v. Kuta, 12 Neb. App. 847, 686 N.W.2d 

374 (2004).

In State v. Johnson, 261 Neb. 1001, 627 N.W.2d 753 (2001), 

a drug task force monetarily compensated a cooperating 

individual who participated in controlled drug transactions. 

Investigators gave that cooperating individual “‘buy money’” 

prior to the drug transaction and also searched him both before 

and after the transaction. Id. at 1004, 627 N.W.2d at 757. 

Additionally, investigators outfitted the cooperating individual 

with a transmitter disguised as a pager. Id.

While dismissal or reduction of charges and/or compensation are commonly found in cases involving cooperating 

individuals, these factors are not required. What is required 

is that the cooperating individual “acts on behalf of, at the 
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STATE v. FRANCO

Cite as 27 Neb. App. 360

request of, or as an agent for a law enforcement agency.” See 

§ 28-401(26). This definition requires that the individual take 

some action in response to law enforcement’s request. Finally, 

the definition requires that the act requested be “for the purpose of gathering or obtaining evidence.” See id. In our view, 

this definition indicates that this “gathering” takes place in 

response to law enforcement’s request for the cooperator to 

“act[].” It does not mean that a person who merely provides 

information regarding a crime he or she has observed is transformed thereby into a cooperating individual.

In the present case, Martinez is not a “cooperating individual” under § 28-1439.01. First, we note that it is highly 

questionable whether her probation officer would qualify as a 

“law enforcement agency” under § 28-401(26). However, even 

assuming that the probation officer coupled with the police 

department’s later involvement qualifies, Martinez’ active 

cooperation, to the extent that it existed at all, was providing 

Perez a key to her home and informing him of its contents 

and occupants. But Perez was entitled to search Martinez’ 

home at any time. Martinez’ provision of a key to her home 

was required under her probation order, and informing Perez 

of what he may encounter when he entered the home does 

not connote the type of active evidence gathering found in the 

statutory definition. Here, ascertaining Martinez’ compliance 

with her probation order was the purpose of searching her 

home, not collecting evidence of crimes under the Uniform 

Controlled Substances Act. Moreover, there is no evidence 

that Martinez was offered any leniency or other incentive to 

provide information to Perez or to the police department or to 

testify at trial. In fact, Martinez was sanctioned for her probation violation and later was sentenced to jail. Martinez’ actions 

in this case exhibited none of the paradigmatic qualities of a 

“[c]ooperating individual” as defined by § 28-401(26) or pertinent case law.

Because Martinez did not act as a cooperating individual 

under § 28-1439.01, her trial testimony was not subject to 
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STATE v. FRANCO

Cite as 27 Neb. App. 360

the statute’s corroboration requirement. We therefore need not 

consider whether, and to what extent, Martinez’ testimony was 

corroborated by other sources.

Sufficiency of Evidence.

Franco was convicted of possession of methamphetamine 

with the intent to deliver in violation of § 28-416(1). However, 

Franco contends that his conviction was based on insufficient 

evidence of possession of methamphetamine with the intent to 

deliver. We find that the jury’s finding of Franco’s guilt was 

supported by sufficient evidence.

[6-8] A person possesses a controlled substance when he 

or she knows of the nature or character of the substance and 

of its presence and has dominion or control over it. State v. 

Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). Possession can 

be either actual or constructive, and constructive possession of 

an illegal substance may be proved by direct or circumstantial 

evidence. Id. Circumstantial evidence may also support a finding that a defendant intended to distribute, deliver, or dispense 

a controlled substance in the defendant’s possession. State v. 

Howard, 282 Neb. 352, 803 N.W.2d 450 (2011). Circumstantial 

evidence sufficient to establish possession of a controlled substance with intent to deliver may consist of evidence of the 

quantity of the substance, equipment and supplies found with 

the substance, the place where the substance was found, the 

manner of packaging, and the testimony of witnesses experienced and knowledgeable in the field. Id.

Taken in the light most favorable to the State, the evidence 

produced at trial showed that Franco had a history of distributing methamphetamine to others. Both Rojas and Martinez 

testified that they personally had received methamphetamine 

from Franco in March 2017. Moreover, Martinez testified that 

she observed Reyes provide cash to Franco in exchange for 

methamphetamine on the evening of March 24.

The evidence also showed that Franco owned a black zippered bag like the one containing methamphetamine that 
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STATE v. FRANCO

Cite as 27 Neb. App. 360

Evans found on Martinez’ couch. Rojas testified that she knew 

Franco owned a black zippered bag that was smaller than the 

size of a purse, although she said that she did not know Franco 

to store methamphetamine inside it. Rojas also testified that 

she had observed Franco with methamphetamine in a Ziploc 

bag that had green coloring at the top, which comports with 

the Ziploc bag of methamphetamine found inside the black 

zippered bag on Martinez’ couch. Moreover, Franco had been 

sitting on Martinez’ couch immediately before Evans found the 

black zippered bag, which she said was sitting on top of the 

couch and not “in the crack in between the . . . cushions.” A 

police officer testified that the quantity of methamphetamine 

found in the Ziploc bag was consistent with an intent to deliver 

given the quantity contained therein.

Franco contends that the evidence does not support the 

verdict because the methamphetamine was found in the home 

of a known methamphetamine user who had other drug paraphernalia in her home and was on probation at the time. 

Nevertheless, the evidence in this case, when taken in a light 

most favorable to the State, was sufficient to support the jury’s 

finding Franco guilty of possession of methamphetamine with 

the intent to deliver. Thus, we affirm the judgment entered by 

the district court.

CONCLUSION

We find that the corroboration requirement of § 28-1439.01 

was inapplicable to the testimony of Martinez, because she 

was not a cooperating individual as defined by § 28-401(26). 

We further find that there was sufficient evidence to support 

the verdict finding Franco guilty of possession of methamphetamine with the intent to deliver.

Affirmed.