- 873 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

State of Nebraska, appellee, v. 

Courtney J. Savage, appellant.

___ N.W.2d ___

Filed December 14, 2018. No. S-17-1166.

1. Criminal Law: Convictions: Evidence: Appeal and Error. When 

reviewing a criminal conviction for sufficiency of the evidence, it does 

not matter 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 finders of fact. The 

relevant question 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.

2. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside a guilty 

verdict as unsupported by evidence beyond a reasonable doubt.

3. Rules of Evidence. In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the Nebraska 

Evidence Rules; judicial discretion is involved only when the rules make 

discretion a factor in determining admissibility.

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

Rules commit the evidentiary question at issue to the discretion of the 

trial court, an appellate court reviews the admissibility of evidence for 

an abuse of discretion.

5. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

6. Pleadings: Evidence: Appeal and Error. A motion in limine is a procedural step to prevent prejudicial evidence from reaching the jury, but 

is not an appealable order. The purpose of a motion in limine is to produce, when appropriate, an advance ruling on anticipated objectionable 

material, and the denial of the motion cannot, in and of itself, constitute 

reversible error.

Nebraska Supreme Court Online Library

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

02/15/2019 01:06 AM CST
- 874 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

7. Rules of Evidence: Proof. A proponent of evidence is not required to 

conclusively prove the genuineness of the evidence or to rule out all 

possibilities inconsistent with authenticity.

8. Rules of Evidence. Generally, the foundation for the admissibility of 

text messages has two components: (1) whether the text messages were 

accurately transcribed and (2) who actually sent the text messages.

9. Rules of Evidence: Proof. The proponent of text messages is not 

required to conclusively prove who authored the messages. The possibility of an alteration or misuse by another generally goes to weight, not 

admissibility.

10. Rules of Evidence: Hearsay: Proof. The State must prove by a greater 

weight of the evidence that a defendant authored or made a statement 

in order to establish preliminary admissibility as nonhearsay under Neb. 

Rev. Stat. § 27-801(4)(b)(i) (Reissue 2016).

11. Rules of Evidence: Proof. Under what is commonly and incorrectly 

referred to as the “best evidence rule,” in order to prove the content of 

a writing, recording, or photograph, the original writing, recording, or 

photograph is required.

12. ____: ____. The “original writings rule” applies only if the party offering the evidence is seeking to prove the contents of a writing, recording, 

or photograph.

13. Rules of Evidence. The rule of completeness allows a party to admit the 

entirety of an act, declaration, conversation, or writing when the other 

party admits a part and when the entirety is necessary to make it fully 

understood.

14. ____. The rule of completeness is concerned with the danger of admitting a statement out of context, but when this danger is not present, it 

is not an abuse of discretion to refuse to require the production of the 

remainder or, if it cannot be produced, to exclude all the evidence.

15. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A 

defendant who moves for dismissal or a directed verdict at the close of 

the evidence in the State’s case in chief in a criminal prosecution and 

who, when the court overrules the dismissal or directed verdict motion, 

proceeds with trial and introduces evidence, waives the appellate right 

to challenge correctness in the trial court’s overruling the motion for 

dismissal or a directed verdict.

16. Directed Verdict: Appeal and Error. When a defendant makes a 

motion at the close of the State’s case in chief and again at the conclusion of all the evidence, it is proper to assign as error that the defendant’s motion to dismiss made at the conclusion of all the evidence 

should have been sustained.

17. Convictions: Evidence: Appeal and Error. A conviction will be 

affirmed in the absence of prejudicial error if the properly admitted 
- 875 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

evidence, viewed and construed most favorably to the State, is sufficient 

to support the conviction.

18. Convictions: Corroboration: Witnesses: Testimony. When the law 

requires corroboration of a witness to support a conviction, a witness’ testimony must be accompanied by evidence other than that from 

the witness.

19. 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.

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

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

21. Convictions: Controlled Substances: Evidence: Proof. Evidence that 

a defendant had constructive possession of a drug with knowledge of 

its presence and its character as a controlled substance is sufficient to 

support a finding of possession and to sustain a conviction for unlawful possession.

22. Controlled Substances: Evidence: Proof. Constructive possession may 

be proved by direct or circumstantial evidence and may be shown by 

the accused’s proximity to the substance at the time of the arrest or by a 

showing of dominion over the substance.

23. Sentences. 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 violence involved in the 

commission of the crime.

Appeal from the District Court for Lancaster County: Susan

I. Strong, Judge. Affirmed.

Darik J. Von Loh, of Hernandez Frantz, Von Loh, for 

appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.
- 876 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

Freudenberg, J.

I. NATURE OF CASE

Courtney J. Savage was arrested and charged with possession of a controlled substance with intent to deliver, in 

violation of Neb. Rev. Stat. § 28-416(2)(a) (Reissue 2016), a 

Class II felony. He was further alleged to be a habitual criminal pursuant to Neb. Rev. Stat. § 29-2221 (Reissue 2016). 

During trial, the State produced evidence of text messages 

from what was purported to be Savage’s cell phone, which 

indicated that Savage was selling the illegal drug methamphetamine. Savage objected to the offer of the text messages 

on foundation and hearsay grounds, primarily arguing that the 

identity of the message author was unclear. The district court 

overruled his objections, and after trial, a jury found Savage 

guilty. The district court determined that Savage was a habitual criminal and ordered him to serve 10 to 18 years in prison. 

Savage appeals from his conviction.

II. BACKGROUND

Savage was arrested and charged with possession of a 

controlled substance with intent to deliver, in violation of 

§ 28-416. Further, he was alleged to be a habitual criminal 

pursuant to § 29-2221. Following trial, he was convicted and 

found to be a habitual criminal. Savage was subsequently sentenced to a term of 10 to 18 years’ incarceration. The facts of 

his arrest and trial leading to his conviction follow.

1. February 16 and 17, 2017, Arrest

During the night of February 16, 2017, and the early morning hours of February 17, Lincoln Police Department officers 

Anthony Gratz and Andrew Barksdale arrested Michael Dryden 

for possession of methamphetamine with intent to deliver. 

After being brought to the police station to be interviewed, 

Dryden received several text messages from an individual 

referred to as “Pint” seeking to sell Dryden methamphetamine. 

Later, through a review of the Lincoln Police Department’s 

records management system, it was learned that “Pint” was a 

nickname for Savage.
- 877 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

With Dryden’s permission, the officers borrowed Dryden’s 

cell phone and continued to communicate with Savage, hoping to find him and arrest him for his potential illegal methamphetamine sale to Dryden. After multiple text messages 

were exchanged, a meeting to purchase methamphetamine 

was arranged to occur at an agreed-upon location in Lincoln, 

Nebraska. When the officers arrived at that location, they 

parked in a nearby alleyway, began surveillance, and continued 

the text conversation.

The officers received a message from Savage’s cell phone 

indicating that he was at the agreed-upon location. Seeing no 

one arrive, the officers drove around the block. The officers 

then saw a blue two-door Toyota. The police cruiser and the 

Toyota were the only vehicles in the area. Almost immediately 

after the police saw the Toyota drive by, Dryden’s cell phone 

received a text message stating: “Police [are] outside.”

The officers concluded that Savage was in the passing 

Toyota. The officers followed the Toyota and observed it fail 

to properly signal a turn. The officers initiated a traffic stop of 

the Toyota.

During the stop, one of the officers approached the driver’s 

side of the Toyota while the other officer approached the passenger’s side. Gratz made contact with the driver, Johnathon 

Addleman, and asked for his license and registration. When 

Addleman failed to produce the requested documentation, 

Gratz asked him to exit the Toyota. Savage was sitting in the 

passenger seat of the Toyota and appeared to be using his 

cell phone. Another passenger, Christine Tannehill, was in the 

back seat.

While Gratz was questioning Addleman, Barksdale attempted 

to make contact with Savage in the passenger seat. However, 

Savage would not acknowledge Barksdale and maintained eye 

contact with his cell phone. After some time, Savage opened 

the door to speak with Barksdale. At that point, Barksdale 

observed that Savage’s zipper was undone and a part of his 

pants was pulled through the zipper opening.
- 878 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

Addleman later explained to Gratz that as the officers were 

pulling the Toyota over, Savage was “wrestling around in the 

groin area of . . . his pants” and threw a bag at Tannehill, 

instructing her to “put it in [her] pussy.” Tannehill was questioned by the officers, at which time she admitted to having 

methamphetamine on her person and turned it over to the officers. At trial, several of the State’s witnesses, including Gratz 

and Barksdale, testified that it was common for individuals 

possessing drugs to hide them in or near their genitalia.

Within the surrendered bag, there were three smaller individual bags, each of which pretested positive for amphetamine. 

Later, a laboratory test confirmed that the substance was methamphetamine. The three bags, collectively, contained in excess 

of 7.6 grams of the substance. In addition to the bags of methamphetamine, an officer collected each person’s cell phone. 

Later, the cell phones were analyzed and data was extracted for 

investigative purposes.

2. Motion in Limine

Prior to trial, Savage filed a motion in limine to exclude 

evidence of various text messages contained on Savage’s and 

Dryden’s cell phones. Savage argued that the State would be 

unable to authenticate the text messages because, although the 

messages were being sent from Savage’s cell phone, there was 

no way to prove that Savage was the one texting Dryden at 

the relevant time. Savage further argued that the text messages 

would be hearsay and overly prejudicial. The State responded 

that it could produce the foundation for admission of the text 

messages into evidence by (1) proving that the cell phone in 

question was Savage’s, (2) proving that the cell phone was in 

Savage’s possession at the time of his arrest, and (3) presenting witness testimony that Savage was sending the messages at 

issue. The district court overruled Savage’s motion in limine.

3. Trial

At trial, the State had several witnesses testify as to the 

events of February 16 and 17, 2017, including Gratz, Barksdale, 
- 879 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

Dryden, Addleman, and Tannehill. Gratz and Barksdale specifically testified that a typical “personal use amount” of methamphetamine was about 0.2 grams, thereby indicating that the 

amount in this case was a “dealer quantity.”

(a) Exhibit 6

During Gratz’ testimony, the State offered exhibit 6, photographs of the text conversation between the officers and 

Savage’s cell phone, into evidence. Savage objected to this on 

foundation and hearsay grounds, asserting that the State did 

not prove that Savage authored those text messages. The State 

claimed that it had met its burden regarding foundation and 

authentication, insofar as Gratz testified that he saw Savage 

using Savage’s cell phone at the time of the arrest. The district 

court overruled Savage’s objection.

(b) Exhibits 8 and 23

The State also offered into evidence exhibits 8 and 23, portions of extractions from Savage’s and Dryden’s cell phones 

containing text messages and cell phone logs from the relevant 

time period. A police officer testified that he extracted and analyzed the data from Savage’s cell phone using a program called 

Cellbrite. The officer stated that he found that Savage’s cell 

phone’s wireless network tethering service, or access point, had 

“Savage 11” as the password associated with it. Another police 

officer testified that he extracted and analyzed the data from 

Dryden’s cell phone also using the Cellbrite program.

Savage objected to both exhibits 8 and 23 on hearsay, 

foundation, best evidence, and completeness grounds. Savage 

elaborated that exhibit 23 was inadmissible because (1) the 

State did not prove that Savage authored the relevant messages 

and (2) it was only a portion of the Cellbrite report. The district 

court overruled the objections.

(c) Dryden

Both Dryden and Addleman testified in the State’s case in 

chief pursuant to cooperation agreements. Dryden testified 
- 880 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

that as a dealer of methamphetamine, he purchased that drug 

from Savage, whom he knew only by the name “Pint,” on a 

few occasions. However, Dryden stated that he communicated 

with Savage only through a family member of Savage’s and 

never spoke to Savage on the cell phone directly. In fact, 

Savage was not listed as a contact in Dryden’s cell phone. 

Dryden also testified that Tannehill was always present during these sales and that she appeared to be “overseeing” 

the operation.

(d) Addleman

Addleman testified that he met Savage and Tannehill at a 

house in Lincoln and agreed to give them a ride to another 

location where they were allegedly going to drop off a large 

amount of methamphetamine. Addleman stated that Tannehill 

was giving directions to the address while appearing to use 

Savage’s cell phone.

Addleman asserted that after the arrest, Savage devised a 

plan to implicate Tannehill. Addleman agreed with Savage’s 

request that he sign a notarized statement implicating Tannehill. 

In his testimony, he claimed that Savage had him rewrite the 

statement approximately four times. Addleman asserted that 

he agreed to write the statement only because he wanted to 

avoid being labeled a “snitch” while at the jail. After he was 

released from jail, Addleman immediately contacted the public 

defender’s office and the police department to advise them of 

Savage’s plan and the falsity of his notarized statement.

(e) Christina Krueger

Savage called Christina Krueger to testify on his behalf. 

Krueger was employed with the Lancaster County jail as a correctional officer. She testified that in the course of her employment, she regularly watched the inmates and often interacted 

with them. She stated that during Savage and Addleman’s time 

in jail, she became familiar with Savage and Addleman and 

had interacted with them. Krueger testified that she was aware 

of Savage and Addleman’s interaction regarding Addleman’s 
- 881 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

notarized letter. She testified that, though she did not actually 

see the contents of the letter, Addleman did not seem under 

duress; nor did she notice any strange behaviors. Krueger 

testified that Addleman stated that he was signing freely and 

voluntarily before the notary. She noted the existence of certain 

procedures for inmates to request “protective custody” if they 

are being harassed by another inmate. On cross-examination, 

Krueger testified that Savage was the one who initiated the 

notarization process.

(f) Tannehill

Tannehill stated that her primary reason for testifying 

was because she was subpoenaed and wanted to ensure that 

Savage was held accountable for his actions on the night of 

February 16, 2017. She did not testify pursuant to a cooperation agreement, as she had already pled guilty to her charges. 

Tannehill stated that she was a user of methamphetamine and 

that she had previously purchased that drug from Savage, 

whom she knew only by the name “Pint” until the night of 

their arrest.

Tannehill further testified that Savage came over to her 

house on the evening of February 16, 2017, and asked her 

to drive him to Lincoln. She agreed, and the pair eventually 

arrived at a Lincoln house where there were several people, 

including Addleman. Tannehill admitted to smoking methamphetamine given to her by Savage and observing Savage 

weighing the drug while at the house.

Tannehill testified that Addleman later agreed to give Savage 

and Tannehill a ride to a subsequent location, where the pair 

were allegedly going to drop off “quite a big amount” of methamphetamine. Tannehill testified that while in the car, Savage 

gave her his cell phone to check the address of the location. 

She testified that she did not send or receive any text messages 

while on his cell phone, but simply utilized a map application 

thereon. Shortly after the police began following Addleman’s 

Toyota, Savage took the drugs out of his pants and instructed 

Tannehill to put them in her vagina.
- 882 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

4. Verdict

At the close of the State’s evidence, Savage moved for 

the court to dismiss the case, alleging that the State had not 

met its burden of proof beyond a reasonable doubt. The district court overruled his motion. Savage renewed the motion 

for a directed verdict at the close of all the evidence, which 

motion the district court again denied. After deliberations, the 

jury found Savage guilty and the district court accepted the 

jury’s verdict.

5. Posttrial and Sentencing

The court held an enhancement hearing where Savage 

was determined to be a habitual criminal under § 29-2221. 

Subsequently, at the sentencing hearing, the district court sentenced Savage to a term of not less than a mandatory minimum 

of 10 years’ and not more than 18 years’ imprisonment.

III. ASSIGNMENTS OF ERROR

Savage assigns, rephrased and renumbered, that the district court erred in (1) overruling Savage’s motion in limine; 

(2) overruling Savage’s motion to dismiss at the close of the 

State’s case; (3) allowing the case to go to a jury without sufficient evidence to support a verdict; (4) allowing evidence of 

text messages from Savage’s and Dryden’s cell phones over 

hearsay, foundation, completeness, and best evidence objections; and (5) abusing its discretion by imposing an excessive sentence.

IV. STANDARD OF REVIEW

[1,2] When reviewing a criminal conviction for sufficiency 

of the evidence, it does not matter whether the evidence is 

direct, circumstantial, or a combination thereof, the standard 

is the same: We do not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finders of fact. The relevant question is whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could 
- 883 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

have found the essential elements of the crime beyond a reasonable doubt.1

 Only where evidence lacks sufficient probative force as a matter of law may an appellate court set aside 

a guilty verdict as unsupported by evidence beyond a reasonable doubt.2

[3,4] In proceedings where the Nebraska Evidence Rules 

apply, the admissibility of evidence is controlled by the 

Nebraska Evidence Rules and judicial discretion is involved 

only when the rules make discretion a factor in determining 

admissibility.3 Where the Nebraska Evidence Rules commit 

the evidentiary question at issue to the discretion of the trial 

court, an appellate court reviews the admissibility of evidence 

for an abuse of discretion.4

[5] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court.5

V. ANALYSIS

1. Admissibility of Text Messages

and Cellbrite Reports

[6] In his first assignment of error, Savage assigns that the 

district court erred in overruling his motion in limine to prevent the State from entering into evidence the text messages 

and Cellbrite extraction reports. We have held that a motion 

in limine is a procedural step to prevent prejudicial evidence 

from reaching the jury, but is not an appealable order.6 The purpose of a motion in limine is to produce, when appropriate, an 

advance ruling on anticipated objectionable material, and the 

1 State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011). See, also, State v. 

Hill, 298 Neb. 675, 905 N.W.2d 668 (2018).

2 State v. Dixon, supra note 1.

3 State v. Hill, supra note 1.

4 Id.

5 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).

6 See State v. Tomrdle, 214 Neb. 580, 335 N.W.2d 279 (1983).
- 884 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

denial of the motion cannot, in and of itself, constitute reversible error.7

 However, because Savage preserved his objections 

during trial and assigns the respective rulings thereon as errors 

in this appeal, we address the admissibility of the text messages and Cellbrite extraction reports.

The evidence at issue is found in exhibits 6, 8, and 23. 

Exhibit 6 contains photographs of Dryden’s cell phone with 

the text messages between Savage’s cell phone and Dryden’s 

cell phone on the screen. Exhibits 8 and 23 are portions of the 

forensic data extractions of Savage’s and Dryden’s cell phones 

containing the same text messages, as well as other messages 

and call logs occurring around the same time.

(a) Authentication

Savage first contends that the district court erred in allowing 

exhibits 6, 8, and 23 into evidence, because the text messages 

contained therein were not properly authenticated. A court’s 

ruling on authentication is reviewed for an abuse of discretion.8

[7] Under the Nebraska Rules of Evidence, the requirement 

of authentication or identification as a condition precedent 

to admissibility is satisfied by evidence sufficient to support 

a finding that the matter in question is what its proponent 

claims.9 We have noted that this rule does not impose a high 

hurdle for authentication or identification.10 A proponent of 

evidence is not required to conclusively prove the genuineness 

of the evidence or to rule out all possibilities inconsistent with 

authenticity.11

[8] Generally, the foundation for the admissibility of text 

messages has two components: (1) whether the text messages 

7 See id.

8 State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016); State v. Draganescu, 

276 Neb. 448, 755 N.W.2d 57 (2008).

9 Neb. Rev. Stat. § 27-901(1) (Reissue 2016).

10 State v. Elseman, 287 Neb. 134, 841 N.W.2d 225 (2014).

11 Id.
- 885 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

were accurately transcribed and (2) who actually sent the 

text messages.12 Savage does not challenge the first prong of 

this test, but, rather, argues that the State failed to prove that 

Savage was the author of the text messages.

[9] The State met its burden for authentication regarding the 

text messages in exhibits 6, 8, and 23. The State need show 

only by a greater weight of the evidence that the text messages were authored by Savage—in other words, that the text 

messages were more likely than not authored by Savage. The 

proponent of the text messages is not required to conclusively 

prove who authored the messages.13 The possibility of an alteration or misuse by another generally goes to weight, not admissibility.14 Thus, the district court did not abuse its discretion in 

overruling Savage’s foundation and authentication objections 

to the text messages found within exhibits 6, 8, and 23.

Also respecting the authentication of text messages, Savage 

argues that the current test, as analyzed above, should be 

replaced with a test used in a Nevada case, Rodriguez v. State.

15

In Rodriguez, the Nevada Supreme Court found the following rule to establish the authentication of text messages from 

cell phones:

[W]hen there has been an objection to admissibility of 

a text message, . . . the proponent of the evidence must 

explain the purpose for which the text message is being 

offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate 

the text message as a condition precedent to its admission . . . .16

Although he claims that the State in the current case would 

have failed both tests, he asserts that the Rodriguez standard 

12 State v. Henry, supra note 8.

13 Id.

14 Id.

15 Rodriguez v. State, 128 Nev. 155, 273 P.3d 845 (2012).

16 Id. at 162, 273 P.3d at 849.
- 886 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

for the authentication of text messages “firmly attains the tenet 

established in the rules of evidence.”17 We fail to see how the 

adoption of the Rodriguez test would ease the analysis for the 

authentication of text messages or provide additional clarity for 

such purposes in practice. Neither do we see how an application of the Rodriguez test would result in a finding that the 

text messages were not properly authenticated in this case. We 

find no reason to adopt a new standard for the authentication 

of text messages.

(b) Hearsay

Next, Savage contends that the text message evidence in 

exhibits 6, 8, and 23 is hearsay and that the State failed to 

prove that the evidence fit within the statement-by-a-partyopponent hearsay exception. Generally, hearsay evidence, as 

defined by Neb. Rev. Stat. § 27-801 (Reissue 2016), is not 

admissible unless it fits within an exception to the rule against 

hearsay.18 But, pursuant to § 27-801(4)(b)(i), a statement is not 

hearsay if it is offered against a party and is his own statement.19 Therefore, whether the text messages were authored by 

Savage is a threshold matter of admissibility and a preliminary 

question for the district court.20 While we earlier determined 

that the State met its burden of proving that the text messages were authored by Savage by a greater weight of the 

evidence for the purpose of authentication, at issue is whether 

the same standard applies for proving whether a statement 

falls under a hearsay exception. In other words, the question 

is whether the finding of authenticity under § 27-901 is sufficient to render the text messages admissible as statements by 

a party opponent.

17 Brief for appellant at 23.

18 See State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013).

19 State v. Reinhart, 283 Neb. 710, 811 N.W.2d 258 (2012); State v. 

Draganescu, supra note 8.

20 See Neb. Rev. Stat. § 27-104(1) (Reissue 2016). See, also, State v. Ryan, 

226 Neb. 59, 409 N.W.2d 579 (1987).
- 887 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

Although we never specifically addressed the standard of 

proof for the admissibility of authenticated written statements as statements by a party opponent, hearsay determinations are often treated as preliminary questions under Fed. R. 

Evid. 104(b), which requires “evidence sufficient to support 

a finding.”21 Based on our authentication analysis regarding 

the standard of proof involving Fed. R. Evid. 104, this would 

implicate a greater weight of the evidence standard. In addition, federal courts, when determining whether statements 

were properly admitted as statements by a party opponent, 

have held that the government, as the proponent of the text 

messages, must show by a greater weight of the evidence that 

the defendant made the statement.22 Even further, we, alongside the Court of Appeals, have held that properly authenticated text messages allegedly written by a defendant are 

nonhearsay as statements by a party opponent, without doing 

an additional standard of proof analysis for the nonhearsay 

determination.23

[10] We hold that the State must prove by a greater weight 

of the evidence that a defendant authored or made a statement 

in order to establish preliminary admissibility as nonhearsay under § 27-801(4)(b)(i). In the instant case, the district 

court implicitly found that Savage authored the text messages 

in question. And, based on the above-mentioned evidence 

regarding authentication, we find that the State’s evidence 

authenticating the text messages satisfied the greater weight 

of the evidence standard for a preliminary determination 

on hearsay.

Applying the appropriate standard of review for clear error 

regarding the factual findings underpinning a trial court’s 

21 See 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence 

§ 1:28 (4th ed. 2013). See, also, U.S. v. Harvey, 117 F.3d 1044 (1997).

22 U.S. v. Benford, No. CR-14-321-D, 2015 WL 631089 (W.D. Okla. Feb. 12, 

2015). See, also, U.S. v. Brinson, 772 F.3d 1314 (10th Cir. 2014).

23 See, e.g., State v. Henry, supra note 8; State v. Wynne, 24 Neb. App. 377, 

887 N.W.2d 515 (2016).
- 888 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

hearsay ruling and de novo regarding the court’s ultimate 

determination to admit evidence over a hearsay objection,24

we conclude that the district court did not err in overruling 

Savage’s hearsay objections.

(c) Best Evidence and 

Completeness

Last, concerning the admissibility of evidence, Savage 

assigns that the district court erred in overruling his best 

evidence and completeness objections to exhibits 8 and 23. 

Savage argues that because exhibits 8 and 23 were only 

redacted portions of the Cellbrite cell phone data extraction 

reports, the exhibits did not meet the “best evidence rule as to 

completeness.”25 The State responds that (1) the exhibits were 

by definition “original[s]” under Neb. Rev. Stat. § 27-1001 

(Reissue 2016) and (2) the reports did not present a danger of 

admitting a statement out of context, as the redactions sought 

to include only the relevant information necessary to avoid jury 

confusion. We agree with the State.

[11,12] Under what is commonly and incorrectly referred 

to as the “best evidence rule,” in order to prove the content 

of a writing, recording, or photograph, the original writing, 

recording, or photograph is required.26 This “‘original writings’ 

rule” applies only if the party offering the evidence is seeking 

to prove the contents of a writing, recording, or photograph.27

Under § 27-1001(3), defining an original under the rule, “[i]f 

data are stored in a computer or similar device, any printout 

or other output readable by sight, shown to reflect the data 

accurately, is an original.” Here, exhibits 8 and 23 are, by definition, originals. They are printouts of exact data contained on 

Savage’s and Dryden’s cell phones. In sum, because exhibits 8 

24 State v. Draganescu, supra note 8.

25 Brief for appellant at 33.

26 Neb. Rev. Stat. § 27-1002 (Reissue 2016); State v. Decker, 261 Neb. 382, 

622 N.W.2d 903 (2001).

27 State v. Decker, supra note 26, 261 Neb. at 389, 622 N.W.2d at 911.
- 889 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

and 23 are “original[s]” under the definition in § 27-1001(3), 

the district court did not err in overruling Savage’s best evidence objections.

[13,14] With regard to the completeness objections, Savage 

argues that if exhibits 8 and 23 were to be admitted, they 

should have been admissible only in their complete form, not 

in a redacted version. This argument lacks merit. The rule of 

completeness allows a party to admit the entirety of an act, 

declaration, conversation, or writing when the other party 

admits a part and when the entirety is necessary to make it 

fully understood.28 Under § 27-106(2), a judge in his or her 

discretion may either require the party thus introducing part 

of a total communication to introduce at that time such other 

parts as ought in fairness to be considered contemporaneously 

with it or permit another party to do so at that time. The rule 

of completeness is concerned with the danger of admitting a 

statement out of context, but when this danger is not present, 

it is not an abuse of discretion to refuse to require the production of the remainder or, if it cannot be produced, to exclude 

all the evidence.29

Savage did not offer into evidence the entirety of the 

Cellbrite reports. Nor does Savage allege how the remainder of the reports was necessary to make those documents 

fully understood. He merely alleges that the admission of the 

redacted portions was prejudicial, without explaining how the 

redactions created a danger of admitting a statement out of 

context or elaborating how the entirety of the Cellbrite reports 

would have alleviated this danger. Based on the record before 

us, there is nothing to suggest that exhibits 8 and 23, in their 

redacted form, were misleading or prejudicial. Consequently, 

the district court did not abuse its discretion when it overruled Savage’s rule of completeness objections and declined to 

require the State to offer the entirety of the Cellbrite reports.

28 State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). See Neb. Rev. Stat. 

§ 27-106 (Reissue 2016).

29 State v. Manchester, 213 Neb. 670, 331 N.W.2d 776 (1983).
- 890 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

2. Sufficiency of Evidence

[15] Savage next assigns as error that because the State 

failed to meet its burden of proof, the district court erred in 

overruling his motion to dismiss at the close of the State’s 

case. A defendant who moves for dismissal or a directed verdict at the close of the evidence in the State’s case in chief in 

a criminal prosecution and who, when the court overrules the 

dismissal or directed verdict motion, proceeds with trial and 

introduces evidence, waives the appellate right to challenge 

correctness in the trial court’s overruling the motion for dismissal or a directed verdict.30 Because Savage proceeded with 

trial after his motion to dismiss at the close of the State’s case 

in chief, he waived his claim that the district court erred in 

overruling his initial motion to dismiss.31

[16] But when a defendant makes a motion at the close of 

the State’s case in chief and again at the conclusion of all the 

evidence, it is proper to assign as error that the defendant’s 

motion to dismiss made at the conclusion of all the evidence 

should have been sustained.32 Savage made such a motion at 

the close of all the evidence. As such, we proceed on Savage’s 

third assignment of error, as it is essentially a sufficiency of the 

evidence argument.33

Savage argues that the evidence was insufficient to support 

a guilty verdict because there was no corroborating testimony 

of Savage’s guilt as required by Neb. Rev. Stat. § 28-1439.01 

(Reissue 2016) and possession thus could not be proved beyond 

a reasonable doubt. We find no merit in these arguments.

[17] Regardless of whether the evidence is direct, circumstantial, or a combination thereof, an appellate court, in 

30 State v. Gray, 239 Neb. 1024, 479 N.W.2d 796 (1992).

31 See id.

32 State v. Severin, 250 Neb. 841, 553 N.W.2d 452 (1996).

33 See, State v. Combs, 297 Neb. 422, 900 N.W.2d 473 (2017); State v. 

Severin, supra note 32; State v. Malone, 26 Neb. App. 121, 917 N.W.2d 

164 (2018).
- 891 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

reviewing a criminal conviction, 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.34 A conviction will be affirmed in the absence of prejudicial error if the 

properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.35

[18-20] 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.”36 When 

the law requires corroboration of a witness to support a conviction, a witness’ testimony must be accompanied by evidence other than that from the witness.37 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.38 Testimony of a 

cooperating individual need not be corroborated on every element of a crime.39

Savage claims that there was insufficient evidence to allow 

the case to go to a jury because there were no corroborating 

details regarding Savage’s alleged drug dealing as required 

under § 28-1439.01 and because there was not sufficient evidence to prove that Savage possessed methamphetamine. The 

State provided evidence of his drug dealing in the form of both 

34 State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).

35 Id.

36 § 28-1439.01.

37 State v. Goodro, 251 Neb. 311, 556 N.W.2d 630 (1996).

38 Id.

39 State v. Kramer, 238 Neb. 252, 469 N.W.2d 785 (1991); State v. Taylor, 

221 Neb. 114, 375 N.W.2d 610 (1985); State v. Kuta, 12 Neb. App. 847, 

686 N.W.2d 374 (2004).
- 892 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

testimony and physical evidence. Though some of the testimony was elicited from two cooperating individuals, Dryden 

and Addleman, it cannot be said that Savage’s conviction was 

based solely upon uncorroborated testimony of a cooperating 

individual. The State provided evidence of text messages that 

indicated that Savage was selling methamphetamine, as well as 

witness testimony from five other noncooperating individuals 

who generally corroborated the cooperating individuals’ testimony. Savage’s § 28-1439.01 argument has no merit.

[21,22] We likewise find no merit to Savage’s argument that 

the evidence was insufficient to find that Savage possessed 

methamphetamine. During trial, the State relied on a theory 

of constructive possession to convict Savage. Evidence that a 

defendant had constructive possession of a drug with knowledge of its presence and its character as a controlled substance 

is sufficient to support a finding of possession and to sustain 

a conviction for unlawful possession.40 Constructive possession may be proved by direct or circumstantial evidence and 

may be shown by the accused’s proximity to the substance 

at the time of the arrest or by a showing of dominion over 

the substance.41

Both Addleman and Tannehill testified that Savage removed 

a bag of methamphetamine from his groin area and threw it 

to Tannehill to put into her vagina upon being pulled over by 

the police officers. The arresting police officers testified that 

Savage’s zipper was unusually unzipped at the time of the 

traffic stop, which corroborates Addleman’s and Tannehill’s 

testimony. In further support of Addleman’s and Tannehill’s 

testimony, the evidence of the text messages between Savage’s 

and Dryden’s cell phones demonstrates that Savage knew that 

he had drugs on or at least near his person because he was 

attempting to sell them. This evidence was sufficient to prove 

the element of possession of methamphetamine.

40 State v. Garcia, 216 Neb. 769, 345 N.W.2d 826 (1984).

41 Id.
- 893 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

Viewing the evidence in the light most favorable to the 

State, we conclude that there was sufficient evidence to support 

Savage’s conviction.

3. Excessive Sentence

Finally, Savage assigns that the district court abused its discretion by imposing an excessive sentence. We disagree.

When a trial court’s sentence is within the statutory guidelines, the sentence will only be disturbed by an appellate court 

when an abuse of discretion is shown.42 Here, Savage’s sentence was enhanced per Nebraska’s habitual criminal statute, 

§ 29-2221. Under Nebraska law, the mandatory minimum 

Savage could have been sentenced to was a term of 10 years’ 

imprisonment and the maximum term was not more than 60 

years’ imprisonment.43 Savage was sentenced to imprisonment 

for the mandatory minimum of 10 years, but no more than 

18 years.

[23] 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.44 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 violence involved in the commission of the 

crime.45 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.46

42 State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).

43 § 29-2221.

44 State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016).

45 State v. Huff, supra note 42.

46 State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015).
- 894 -

Nebraska Supreme Court Advance Sheets

301 Nebraska Reports

STATE v. SAVAGE

Cite as 301 Neb. 873

In this case, the district court considered the nature and 

circumstances of the crime and the history, character, and 

condition of Savage. In its sentencing order, the court noted 

that Savage has “a demonstrated history of criminal activity, 

disregard for the law, and an unwillingness to comport his 

conduct to comply with the law.” Savage’s sentence is on the 

lower end of the spectrum that could have been imposed under 

§ 29-2221. Based on the record before us, the sentencing court 

did not consider any inappropriate or unreasonable factors in 

determining the sentence. We find that the court did not abuse 

its discretion in its imposition of Savage’s sentence.

VI. CONCLUSION

For the foregoing reasons, we affirm the district court’s decision on this matter.

Affirmed.