- 716 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

State of Nebraska, appellee, v. 

Eric O. Rocha, Sr., appellant.

___ N.W.2d ___

Filed February 3, 2017. No. S-16-009.

1. 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, 

determine the plausibility of explanations, or reweigh the evidence; such 

matters are for the finder of fact.

2. ____: ____. In reviewing a sufficiency of the evidence claim, 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.

3. ____: ____. A trial court has the discretion to determine the relevancy 

and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.

4. Trial: Evidence: Words and Phrases. To be admitted at trial, evidence 

must be relevant, meaning evidence having any tendency to make the 

existence of any fact that is of consequence to the determination of 

the action more probable or less probable than it would be without 

the evidence.

5. Rules of Evidence. Under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 

(Reissue 2016), even evidence that is relevant is not admissible if its 

probative value is substantially outweighed by the danger of unfair 

prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of 

cumulative evidence.

6. Rules of Evidence: Testimony. Under Neb. Evid. R. 701 and 702, Neb. 

Rev. Stat. §§ 27-701 and 27-702 (Reissue 2016), opinion testimony, 

whether by a lay or expert witness, is permissible only if it is helpful to 

the trier of fact in making a determination of a fact in issue.

Nebraska Supreme Court Online Library

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

02/03/2017 09:08 AM CST
- 717 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

7. Witnesses: Judgments. The credibility of witnesses is a determination 

within the province of the trier of fact.

8. Rules of Evidence: Witnesses: Testimony. While certain prescribed 

methods of impeaching a witness’ credibility are allowed under the rules 

of evidence, it is improper for a witness to testify whether another person may or may not have been telling the truth in a specific instance.

9. Prosecuting Attorneys: Testimony. A prosecutor may not express personal opinions as to the credibility or veracity of the defendant’s testimony, but may make comments resting on reasonably drawn inferences 

from the evidence.

10. Criminal Law: Prosecuting Attorneys. 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.

11. Extrajudicial Statements. Where the proponent of evidence offers an 

interrogator’s out-of-court statements that comment on a person’s credibility for the purpose of providing context to a defendant’s statements, 

the interrogator’s statements are only admissible to the extent that the 

proponent of the evidence establishes that the interrogator’s statements 

are relevant to their proffered purpose.

12. Trial: Rules of Evidence: Police Officers and Sheriffs: Evidence: 

Extrajudicial Statements. Statements by law enforcement officials on 

the veracity of the defendant or other witnesses, made within a recorded 

interview played for the jury at trial, are to be analyzed under the ordinary rules of evidence. Such commentary is not admissible to prove the 

truth of the matter asserted in the commentary.

13. Evidence: Words and Phrases. To be relevant, evidence must be probative and material. Evidence is probative if it has any tendency to make 

the existence of a fact more or less probable than it would be without the 

evidence. A fact is material if it is of consequence to the determination 

of the case.

14. Prosecuting Attorneys: Juries. When a prosecutor asserts his or her 

personal opinions, the jury might be persuaded by a perception that 

those opinions are correct because of counsel’s position as prosecutor, 

rather than being persuaded by the evidence. The prosecutor’s opinion 

carries with it the imprimatur of the government and may induce the 

jury to trust the government’s judgment rather than its own view of 

the evidence.

15. Evidence: Police Officers and Sheriffs. Admitting statements by a 

law enforcement officer calling into question a defendant’s honesty and 

stating conclusions about a defendant’s guilt carries with it a risk of 

unfair prejudice.
- 718 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

16. 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.

17. Motions to Suppress: Pretrial Procedure: Trial: Appeal and Error. 

When a motion to suppress is denied pretrial and again during trial on 

renewed objection, an appellate court considers all the evidence, both 

from trial and from the hearings on the motion to suppress.

18. Constitutional Law: Search and Seizure. The ultimate touchstone of 

the Fourth Amendment, and article I, § 7, of the Nebraska Constitution, 

is reasonableness.

19. Search and Seizure: Warrantless Searches. Searches and seizures 

must not be unreasonable. Searches without a valid warrant are per se 

unreasonable, subject only to a few specifically established and welldelineated exceptions.

20. Warrantless Searches: Arrests: Motor Vehicles. Among the exceptions to the warrant requirement are searches incident to a lawful arrest 

and the automobile exception.

21. Warrantless Searches: Motor Vehicles. It is the characteristic mobility 

of all automobiles, not the relative mobility of a car in a given case, that 

justifies the automobile exception to the warrant requirement.

22. Warrantless Searches: Motor Vehicles: Words and Phrases. The 

test for ready mobility under the automobile exception to the warrant 

requirement is whether a vehicle is readily capable of being used on 

the highways and is stationary in a place not regularly used for residential purposes.

23. ____: ____: ____. The requirement of ready mobility for the automobile 

exception to the warrant requirement is met whenever a vehicle that is 

not located on private property is capable or apparently capable of being 

driven on the roads or highways.

24. Probable Cause: Words and Phrases. Probable cause is a flexible, 

commonsense standard that depends on the totality of the circumstances.

25. Probable Cause: Search and Seizure. Probable cause to search requires 

that the known facts and circumstances are sufficient to warrant a person 

of reasonable prudence in the belief that contraband or evidence of a 

crime will be found.

26. 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.
- 719 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

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. Constitutional Law: Criminal Law: Due Process: Proof. Under the 

Due Process Clause of the 14th Amendment to the U.S. Constitution 

and under the Nebraska Constitution, in a criminal prosecution, the State 

must prove every ingredient of an offense beyond a reasonable doubt 

and may not shift the burden of proof to the defendant by presuming an 

ingredient upon proof of the other elements of the offense.

29. Verdicts: Juries: Jury Instructions: Presumptions. Absent evidence 

to the contrary, it is presumed that a jury followed the instructions given 

in arriving at its verdict.

30. Jury Instructions: Judgments: Appeal and Error. Whether the jury 

instructions given by a trial court are correct is a question of law. When 

reviewing questions of law, an appellate court resolves the questions 

independently of the conclusion reached by the lower court.

31. Lesser-Included Offenses: Jury Instructions: Evidence. A court must 

instruct on a lesser-included offense if (1) the elements of the lesser 

offense for which an instruction is requested are such that one cannot 

commit the greater offense without simultaneously committing the lesser 

offense and (2) the evidence produces a rational basis for acquitting the 

defendant of the greater offense and convicting the defendant of the 

lesser offense.

32. Lesser-Included Offenses. To determine whether one statutory offense 

is a lesser-included offense of the greater, Nebraska courts look to the 

elements of the crime and not to the facts of the case.

33. ____. The test for determining whether a crime is a lesser-included 

offense is whether the offense in question cannot be committed without 

committing the lesser offense.

34. Criminal Attempt. Whether a defendant’s conduct constitutes a substantial step toward the commission of a particular crime and is an 

attempt is generally a question of fact.

35. 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.

36. 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.

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

error from a court’s refusal to give a requested instruction, an appellant 
- 720 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

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

statement of the law, (2) the tendered instruction is warranted by the 

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

give the tendered instruction.

Appeal from the District Court for Scotts Bluff County: 

Randall L. Lippstreu, Judge. Affirmed in part, and in part 

vacated.

Todd W. Lancaster, of Nebraska Commission on Public 

Advocacy, for appellant.

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

for appellee.

Wright, Miller-Lerman, Cassel, Stacy, Kelch, and

Funke, JJ.

Wright, J.

I. NATURE OF CASE

Eric O. Rocha, Sr., appeals his convictions of possession of 

a controlled substance, methamphetamine, and of driving under 

suspension. We conclude that there was insufficient evidence 

for his conviction of driving under suspension and vacate that 

conviction. Because we find all of his other assignments of 

error to be either without merit or harmless error, we affirm the 

judgment of the district court in all other respects.

II. BACKGROUND

1. Police Report, Arrest of Rocha, 

and Search of Vehicle

On January 17, 2015, a Scottsbluff Police Department 

officer, William Howton, was dispatched on a call of suspicious activity. The caller reported that a male individual kept 

coming up to the door and asking for the caller’s son, who 

was not at home. The individual’s vehicle was parked in 

the alleyway.

Howton drove toward the scene. About a block from the 

house, he observed a vehicle matching the description given 
- 721 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

to Howton, traveling in the opposite direction. He turned 

around, and before he reached the vehicle, it had pulled over 

and parked. The driver, Rocha, and his passenger, Constance 

Trejo, exited the vehicle. Howton pulled up behind the parked 

vehicle. He approached Rocha and instructed Trejo to step 

back by his police car.

Howton noticed that Rocha appeared to be “really nervous” 

and was putting his hands in his pockets, trying to text on his 

cell phone. Howton asked for and obtained Rocha’s consent 

to search his person and conducted a search. In Rocha’s front 

sweatshirt pocket, he found residue of some green leafy substance that appeared to be marijuana. Howton checked to see 

if there were any warrants for Rocha’s arrest or a suspended 

license. He was told that Rocha’s license was suspended and 

arrested Rocha for driving under suspension. Rocha was handcuffed and placed in the back of a police car.

Another police officer who had arrived on the scene questioned Trejo. The officer obtained consent to search Trejo’s 

person and purse and conducted the search. A capsule containing what appeared to be marijuana, a glass smoking device 

with what appeared to be burnt marijuana, and a black digital scale with white crystal-like residue were found in the 

purse. According to the officer, the white residue on the scale 

appeared to be methamphetamine. Trejo was arrested and 

placed in the back of a police car.

After Rocha’s arrest, Howton searched the vehicle. He did 

not request consent from Rocha for the search of the vehicle. 

Howton’s basis for the search was the “narcotics that were 

located on [Rocha] and the search of . . . Trejo.” Howton 

planned on impounding the vehicle after Rocha’s arrest, but 

conceded that the search was not an inventory search.

Between the vehicle’s center console and driver’s seat, 

Howton found a small canister with a cover design like a 

Wyoming license plate and the word “GANGSTA” on it. In 

the canister were found two glass vials and two small plastic bags containing a crystal-like substance later confirmed 

to be methamphetamine. Between the center console and the 
- 722 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

driver’s seat was a plastic bag containing what appeared to 

be marijuana and a glass pipe with what appeared to be burnt 

marijuana on it.

A shaving-kit-style bag was found in the center console of 

the vehicle. Inside the bag was a clear glass pipe, the type often 

used for smoking methamphetamine or other narcotics. Also 

inside the bag were two digital scales, a blue pouch with two 

plastic bags containing what appeared to be marijuana, rolling papers, and a red plastic container with what appeared to 

be marijuana.

Howton also found a vehicle registration from Wyoming in 

the name of an individual who was neither Rocha nor Trejo. It 

was reported that Rocha may have had the vehicle because the 

registration’s owner had been arrested in Wyoming.

2. Police Interview of Rocha

After his arrest, Rocha was taken to the Scottsbluff Police 

Department for an interview, which was videotaped. Before 

the interview, Howton advised Rocha of his Miranda1 rights, 

which he waived in writing.

Rocha initially denied knowing about the canister found in 

the vehicle. He later told Howton in the following exchange 

that he had loaned his cousin $700 and that she gave him 

“some stuff” as collateral:

[Rocha]: It feels like I am being pressured into . . .

[Howton]: And, I’ve told you several times . . .

[Rocha]: But see, not, not by you, by the same person, Howton, the same person who said that she was my 

family, the same person that this morning told me I love 

you, I love you mijo, stay out of trouble. But can you 

help me out, because she needed a come up, because her 

and [another individual] don’t have no money. So, yeah, 

I gave her 700 as a loan. I was given some stuff to hold 

until she got the money back.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966).
- 723 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

[Howton]: So you were holding that, that meth as, 

like, collateral?

[Rocha]: Yeah, as a guarantee to get my money back. 

And I, I don’t know. She got more than what she was 

looking for or whatever and was either that or she didn’t 

have the money to pay me back.

At trial, Rocha’s attorney argued that while he may have 

received the Wyoming canister as collateral, he did not know 

that it contained methamphetamine.

3. Howton’s Interview of Rocha

and Rocha’s Motion in Limine

During the interview, Howton made several statements 

to Rocha that the methamphetamine found in the vehicle 

belonged to Rocha, that Howton could prove it belonged to 

Rocha, and that Rocha was not being honest with Howton. In 

Rocha’s amended motion in limine, he objected to the admission of several portions of the interview recording on the 

basis that it constituted impermissible opinion testimony as to 

whether the methamphetamine belonged to Rocha and whether 

Rocha was being honest. He also objected on the basis of rule 

403.2 While the court sustained other portions of the motion 

in limine based on other grounds, the motion was denied with 

regard to the portions of the interview in which Howton made 

these statements about Rocha’s ownership of the drugs and his 

honesty. Howton’s statements and Rocha’s responses include 

the following:

[Howton]: I know the little blue container of meth 

is yours.

[Rocha]: No, how?

[Howton]: I know it is yours [Rocha]. I, looking right 

now, all I am just asking is for your honesty. To be honest 

with me.

[Rocha]: I am being honest[.]

[Howton]: I already know it is yours man.

2 See Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2016).
- 724 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

And:

[Howton]: . . . What I’m saying is, is, I know that canister is yours, alright? I know it’s yours. And this point, 

man, you just, I’m asking for your honesty, and

[Rocha]: I am telling you, that canister, not mine.

[Howton]: Ok, well, I’m not gonna, I’m not buying 

that.

[Rocha]: But, see . . .

[Howton]: . . . I know it’s yours.

[Rocha]: How?

[Howton]: . . . I know it’s yours, man.

[Rocha]: Everything.

[Howton]: You, you can tell me, you can tell me a hundred times over that this belongs to [another individual]. 

And I know it’s not. I know it’s yours.

And:

[Howton]: Right, but you’re, you’re not being honest 

though, you’re not . . .

[Rocha]: No. I’m saying I’ll, I’ll, I’m being honest 

with you.

In its order denying these portions of the motion in limine, 

the court explained that “[t]his is an interview technique best 

explained by Howton at trial.” Before the above portions 

of the interview were admitted at trial and before the video 

was played to the jurors, the court gave the following limiting instruction:

You are about to see and hear a recording of an interview 

with . . . Rocha . . . and . . . Howton. I have ordered 

parts of the recording to be deleted for efficiency purposes and because the deleted portions are not relevant 

for purposes of this trial. You are not to concern yourself 

concerning the contents of the deleted portions, consider 

them at all in your deliberations, or speculate as to their 

content. During the interview you will hear assertions by 

. . . Howton that he knows the alleged controlled substance[] belongs to . . . Rocha . . . and that he does not 
- 725 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

believe . . . Rocha . . . is being honest with him. These 

statements are part of interview techniques and should 

not be considered as substantive evidence in any way 

in determining if . . . Rocha [was in] possession of the 

alleged controlled substance, nor should they be given 

any weight when considering the truthfulness of any 

statements made by . . . Rocha . . . .

At trial, Rocha objected to the playing of the video, which 

objection was overruled. And an instruction substantially similar to the one given before the playing of the video was 

included in the jury instructions at the end of the trial.

4. Motion to Suppress: 

Search of Vehicle

Before trial, Rocha moved to suppress any evidence referring to the search of the vehicle and any evidence found or 

statements made as a result thereof. The court denied Rocha’s 

motion. The court found that the initial encounter between 

Howton and Rocha was not a Fourth Amendment seizure 

because Rocha had already parked the vehicle and begun exiting with Trejo before Howton pulled up behind them. The 

court said it was a “First-Tier Police-Citizen Encounter.”

The court concluded that the police had probable cause 

to believe that contraband could be located in the vehicle 

based on the suspected drugs and drug paraphernalia found 

on Rocha and Trejo. The court agreed with Rocha’s argument 

that under Arizona v. Gant,

3

 the search was not permissible as 

a search incident to lawful arrest because Rocha was arrested 

for driving under suspension. But the court concluded that 

the search was permissible as a search under the “‘automobile exception’” to the warrant requirement because there 

was probable cause to search the vehicle and the vehicle was 

readily mobile. The court denied Rocha’s motion in limine in 

its entirety.

3 Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009).
- 726 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

5. Rocha’s Trial and Conviction

Rocha was charged with (1) possession of a controlled 

substance (methamphetamine), a Class IV felony; (2) driving 

under suspension, a Class III misdemeanor; (3) possession of 

a controlled substance (marijuana), a Class IV misdemeanor; 

and (4) possession of drug paraphernalia, an infraction. The 

information alleged that Rocha was a habitual criminal for the 

purpose of enhancement. The charges of possession of marijuana and drug paraphernalia were not tried.

(a) Questioning and Testimony 

About Testing of Evidence

At trial, Howton conceded on cross-examination that he 

did not request any fingerprint or DNA testing of the items 

found in the vehicle. On redirect, the prosecution questioned 

Rocha: 

Q. And you didn’t have any intention of sending this 

stuff down for DNA or print testing?

A. If he wouldn’t have admitted to it, well, I would 

have consulted with my sergeant or someone to see if 

they wanted us to send for DNA.

Q. And as far as the testing, you didn’t send it down 

but it’s available at your office, right, in the evidence 

locker?

A. Yes.

Q. So if somebody wants to have their own independent test done on that stuff you’ll send it out for them, 

right?

[Rocha’s attorney]: Judge, I’m going to object at this 

time, it’s shifting the burden.

THE COURT: Sustained.

Q. Well, let me ask you this, did you send it out to 

anyone else for testing?

A. No.

Q. At the request of anyone else?

[Rocha’s attorney]: Judge, again, the same objection, 

shifting the burden, trying to allude.
- 727 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

The Court: Overruled. 

Q. Did you send it out on behalf of or at the request 

of anyone other than the Scottsbluff Police Department?

A. No.

Rocha moved for mistrial on the basis of the State’s “shifting 

the burden,” which motion was denied. The court included the 

following jury instruction with regard to the burden of proof: 

“There was testimony at trial that Rocha never requested any 

scientific testing of evidence. You must disregard that testimony in its entirety. Rocha has pleaded not guilty and is 

presumed to be innocent. The State’s burden to prove each element of a crime charged never shifts to a defendant.”

(b) Rocha’s Driving Record

At trial, the State offered a “Complete Abstract of Record” 

and complete file of Rocha’s driving record from the Nebraska 

Department of Motor Vehicles, along with a cover letter from 

that department’s director. The district court sustained some of 

Rocha’s objections to the admission of his driving record and 

admitted a redacted version that included the cover letter and 

part of the abstract. The court received both the unredacted 

and redacted versions into the record. Only the redacted version was given to the jury.

(c) Redacted Record

The abstract was printed on June 11, 2015, and it lists 

Rocha’s driving status as revoked. It indicates that his license 

was issued on January 23, 2009, and had an expiration date of 

March 23, 2014. The cover letter, which is also dated June 11, 

2015, states that the record is a complete driving record for 

Rocha and that his driving privilege had not been reinstated. 

It also states that Rocha did not have a “Work or Ignition 

Interlock Permit” on January 17, 2015. Unlike the complete 

and unredacted version, the redacted version does not indicate 

when Rocha’s license was suspended. Most importantly, while 

the redacted version indicates that his license was suspended 

on the date the abstract was printed, June 11, 2015, it does not 
- 728 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

indicate whether the suspension occurred before or after the 

date of Rocha’s arrest, January 17.

(d) Jury Instructions

Before the case was submitted to the jury, Rocha objected to 

the court’s proposed jury instructions. Rocha requested that the 

court include in an instruction on the possession of a controlled 

substance charge the lesser-included offense of attempted possession of a controlled substance. The court denied the request 

because it concluded that the evidence did not warrant an 

attempt instruction.

(e) Verdicts and Sentences

Rocha was found guilty of possession of methamphetamine 

and driving under suspension. With the habitual criminal 

enhancement, Rocha was sentenced to a mandatory minimum 

of 10 years’ imprisonment to a maximum of 15 years’ imprisonment on the possession of a controlled substance conviction 

and 90 days’ imprisonment for driving under suspension.

III. ASSIGNMENTS OF ERROR

Rocha assigns the following errors on appeal: (1) There 

was insufficient evidence to prove venue; (2) the district court 

erred in denying Rocha’s amended motion in limine, allowing 

the jury to hear portions of the recorded police interview in 

which Howton asserted that Rocha was not being honest, that 

the methamphetamine belonged to Rocha, and that he could 

prove the methamphetamine belonged to Rocha; (3) the district 

court erred in denying Rocha’s motion to suppress the evidence 

found by police in the warrantless search of the vehicle after 

Rocha’s arrest; (4) the district court erred in overruling Rocha’s 

objection to questions by the prosecution that switched the 

burden of proof and in denying Rocha’s motion for mistrial on 

the same grounds; (5) there was insufficient evidence to sustain 

Rocha’s conviction for driving under suspension; and (6) the 

court erred in denying Rocha’s request for a jury instruction 

on the lesser-included offense of attempted possession of a 

controlled substance.
- 729 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

IV. ANALYSIS

1. Insufficiency of Evidence: Venue

and Driving Under Suspension

Rocha raises two assignments of error challenging the sufficiency of the evidence: There was insufficient evidence for 

both convictions because the prosecution failed to prove venue, 

and there was insufficient evidence to support the driving under 

suspension conviction. At oral argument, Rocha’s attorney conceded that there was sufficient evidence to prove venue.

(a) Standard of Review

[1,2] 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, determine the plausibility of explanations, or reweigh 

the evidence; such matters are for the finder of fact.4 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.5

(b) Driving Under Suspension

Rocha argues that there was insufficient evidence to prove 

him guilty beyond a reasonable doubt on the charge of driving 

under suspension. The relevant statute provides, “It shall be 

unlawful for any person to operate a motor vehicle (a) during 

any period that his or her operator’s license has been suspended, [or] (b) after a period of revocation but before issuance 

of a new license . . . .”6

The evidence presented at trial was Howton’s testimony that 

Rocha was driving on January 17, 2015, the redacted version 

4 State v. Rothenberger, 294 Neb. 810, 885 N.W.2d 23 (2016); State v. 

Jenkins, 294 Neb. 684, 884 N.W.2d 429 (2016).

5 Id.

6 Neb. Rev. Stat. § 60-4,108(2) (Cum. Supp. 2016).
- 730 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

of the abstract of Rocha’s driving record, and the cover letter 

from the director of the Department of Motor Vehicles.

The abstract indicates that at the time it was printed, June 

11, 2015, Rocha’s license was suspended. The cover letter also 

indicates that Rocha’s driving privilege had not been reinstated. 

But what the redacted version of the abstract presented to the 

jury does not show is that Rocha’s license was suspended prior 

to January 17, 2015, the date Rocha was alleged to have driven 

under suspension. But without evidence when the suspension 

of Rocha’s license occurred, the evidence was insufficient to 

establish that his license was suspended on January 17. At 

most, the redacted abstract shows that Rocha had no interlock 

devices on his vehicle as of January 17 and that his license 

was expired on January 17. It does not show when his license 

was suspended or that it had been suspended prior to that date. 

Moreover, while there was evidence presented at the hearing 

on the motion to suppress that Howton was told by dispatch 

that Rocha’s license was suspended, this evidence was not presented at trial.

Because there was no evidence that Rocha’s license was 

suspended on January 17, 2015, we conclude that even viewing the evidence in the light most favorable to the prosecution, 

no rational jury could have found beyond a reasonable doubt 

that Rocha was operating a motor vehicle “during any period 

that his . . . operator’s license has been suspended” or “after 

a period of revocation but before issuance of a new license.”7

The mere fact of Rocha’s arrest for driving under suspension 

is insufficient, standing alone, to sustain his conviction. We 

vacate Rocha’s conviction for driving under suspension.

2. Denial of Motion in Limine: Police Statements

on Credibility of Defendant in

Recorded Interrogation

Rocha argues that the district court erred in not granting his motion in limine to exclude portions of the recorded 

7 See id.
- 731 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

interview of Rocha by Howton from being played for the 

jury. In these portions of the interview, Howton stated that 

the methamphetamine belonged to Rocha, that he could prove 

it belonged to Rocha, and that Rocha was not being honest 

with him. Rocha argues that this is equivalent to one witness’ 

testifying about the credibility of another witness.

(a) Standard of Review

[3] A trial court has the discretion to determine the relevancy 

and admissibility of evidence, and such determinations will 

not be disturbed on appeal unless they constitute an abuse of 

that discretion.8

(b) Comments on Credibility 

of Witnesses

[4] Before addressing Rocha’s arguments, we review some 

of our foundational rules of evidence. To be admitted at trial, 

evidence must be relevant,9 meaning “evidence having any 

tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.”10 We have 

explained the relevancy rule, stating:

Relevance is a relational concept and carries meaning 

only in context. A right to introduce evidence depends 

upon there being an issue of fact that is of consequence 

to the determination of an action. . . . First, evidence may 

be irrelevant if it is directed at a fact not properly an issue 

under the substantive law of the case. . . . Second, if the 

evidence fails to alter the probabilities of the existence or 

nonexistence of a fact in issue, the evidence is irrelevant.11

[5] Under rule 403, even evidence that is relevant is not 

admissible if its probative value is substantially outweighed 

8 State v. Oldson, 293 Neb. 718, 884 N.W.2d 10 (2016).

9 See Neb. Evid. R. 402, Neb. Rev. Stat. § 27-402 (Reissue 2016).

10 Neb. Evid. R. 401, Neb. Rev. Stat. § 27-401 (Reissue 2016).

11 State v. Harrold, 256 Neb. 829, 852, 593 N.W.2d 299, 317 (1999).
- 732 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

by the danger of unfair prejudice, confusion of the issues, or 

misleading the jury, or by considerations of undue delay, waste 

of time, or needless presentation of cumulative evidence.12

[6] Lay witnesses may testify only as to factual matters 

based upon their personal knowledge.13 Under rules 701 and 

702,14 opinion testimony, whether by a lay or expert witness, is permissible only if it is helpful to the trier of fact in 

making a determination of a fact in issue.15 The “‘ultimate 

issue’” rule was an evidentiary rule in many jurisdictions 

that prohibited witnesses from giving opinions or conclusions on an ultimate fact in issue because such testimony, it 

was believed, “‘usurps the function’ or ‘invades the province’ of the jury.”16 The ultimate issue rule was abolished in 

Nebraska by rule 704, which provides that “[t]estimony in 

the form of an opinion or inference otherwise admissible is 

not objectionable because it embraces an ultimate issue to 

be decided by the trier of fact.”17 Under rule 704, the basic 

approach to opinions, lay and expert, is to admit them when 

helpful to the trier of fact.18 But the abolition of the ultimate 

issue rule does not lower the bar so as to admit all opinions, 

because under rules 701 and 702, opinions must be helpful 

to the trier of fact, and rule 403 provides an additional basis 

12 § 27-403.

13 Neb. Evid. R. 602, Neb. Rev. Stat. § 27-602 (Reissue 2016).

14 Neb. Evid. R. 701 and 702, Neb. Rev. Stat. §§ 27-701 and 27-702 (Reissue 

2016).

15 See State v. Reynolds, 235 Neb. 662, 457 N.W.2d 405 (1990).

16 See 1 McCormick on Evidence § 12 at 80-81 (Kenneth S. Broun et al. 

eds., 7th ed. 2013 & Supp. 2016). See, also, Chicago, R. I. & P. R. Co. 

v. Holmes, 68 Neb. 826, 94 N.W. 1007 (1903); R. Collin Mangrum, 

Mangrum on Nebraska Evidence 760 (2016); Fed. R. Evid. 704.

17 Neb. Evid. R. 704, Neb. Rev. Stat. § 27-704 (Reissue 2016). See, also, 

Fed. R. Evid. 704.

18 State v. Reynolds, supra note 15 (quoting Fed. R. Evid. 704 advisory 

committee notes); R. Collin Mangrum, Opinion and Expert Testimony in 

Nebraska, 27 Creighton L. Rev. 85 (1993).
- 733 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

of exclusion.19 Under these rules, a witness may not give an 

opinion as to a defendant’s guilt or how the case should be 

decided, but, rather, must leave the conclusions to be drawn by 

the trier of fact, because such opinions are not helpful.20

[7,8] The credibility of witnesses is a determination within 

the province of the trier of fact.21 Because making credibility 

determinations is the role of the trier of fact, testimony that 

usurps that role is not helpful and thus is improper opinion 

testimony under rules 701 and 702.22 While certain prescribed 

methods of impeaching a witness’ credibility are allowed under 

the rules of evidence,23 it is improper for a witness to testify 

whether another person may or may not have been telling the 

truth in a specific instance.24 Thus, we have said, “it is totally 

improper for one witness to testify as to the credibility of 

another witness [because the] question of any witness’ credibility is for the jury.”25

[9,10] We have also said that a prosecutor may not express 

personal opinions as to the credibility or veracity of the 

defendant’s testimony, but may make comments resting on 

reasonably drawn inferences from the evidence.26 One of the 

19 State v. Reynolds, supra note 15.

20 See, id.; State v. Kozisek, 22 Neb. App. 805, 861 N.W.2d 465 (2015); State 

v. Myers, 15 Neb. App. 308, 726 N.W.2d 198 (2006).

21 See State v. Beermann, 231 Neb. 380, 436 N.W.2d 499 (1989). See, also, 

United States v. Bailey, 444 U.S. 394, 100 S. Ct. 624, 62 L. Ed. 2d 575 

(1980).

22 See State v. Beermann, supra note 21 (quoting State v. Romero, 147 Wis. 

2d 264, 432 N.W.2d 899 (1988)).

23 E.g., Neb. Evid. R. 608, Neb. Rev. Stat. § 27-608 (Reissue 2016).

24 State v. Castillo-Zamora, 289 Neb. 382, 855 N.W.2d 14 (2014); State v. 

Archie, 273 Neb. 612, 733 N.W.2d 513 (2007); State v. Beermann, supra

note 21. See, also, 31A Am. Jur. 2d Expert and Opinion Evidence § 16 

(2012).

25 State v. Beermann, supra note 21, 231 Neb. at 396, 436 N.W.2d at 509.

26 See State v. Gonzales, 294 Neb. 627, 884 N.W.2d 102 (2016). See, also, 

Neb. Ct. R. of Prof. Cond. § 3-503.4.
- 734 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

rationales for this prohibition is that “[t]he prosecutor’s opinion carries with it the imprimatur of the government and may 

induce the jury to trust the government’s judgment rather than 

its own view of the evidence.”27 We have similarly said 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.28

Rocha argues that allowing the portions of the recorded 

interview in which Howton asserts that the methamphetamine 

belonged to Rocha, that Rocha knew the container contained 

methamphetamine, that he could prove the methamphetamine 

belonged to Rocha, and that Rocha was not being honest, is 

akin to allowing testimony as to Rocha’s truthfulness or his 

guilt. Rocha reasons that because Howton could not testify 

in court that the methamphetamine belonged to Rocha, that 

Rocha knew the container contained methamphetamine, or 

that Rocha was not being honest about whether the methamphetamine was his, it is likewise improper for these statements 

to be presented to the jury in the video of the interview. One 

court has also analogized similar statements to a prosecutor’s 

personal opinion about the defendant’s guilt, which is inadmissible at trial.29

We have not addressed the issue of whether a statement 

made by law enforcement about the defendant’s credibility 

or guilt, in the context of a recorded interview played for the 

jury at trial, is permissible. Courts in other jurisdictions have 

addressed and “have struggled with the issue of whether credibility statements made by interrogating officers in the course 

of a videotaped interrogation should be played for the jury.”30

27 State v. Gonzales, supra note 26, 294 Neb. at 646, 884 N.W.2d at 117-18.

28 See State v. Green, 287 Neb. 212, 842 N.W.2d 74 (2014).

29 State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005).

30 State v. Cordova, 137 Idaho 635, 640, 51 P.3d 449, 454 (Idaho App. 2002). 

See, also, Lanham v. Com., 171 S.W.3d 14 (Ky. 2005); State v. Gaudreau, 

139 A.3d 433 (R.I. 2016).
- 735 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

Some courts have found such statements to be inadmissible.31 In State v. Elnicki,

32 the Supreme Court of Kansas considered whether the trial court erred in admitting statements by 

police in a recorded interview in which the police made such 

statements as “‘you just told me a flat out lie,’” “‘[y]ou’re sitting here bullshitting me,’” and “‘[y]ou’re weaving a web of 

fucking lies, man,’” among others. The court began its analysis 

with the rule that a witness may not express an opinion on the 

credibility of another witness.33 It concluded that it was error 

to allow the jury to hear these comments, explaining that “[a] 

jury is clearly prohibited from hearing such statements from 

the witness stand in Kansas and likewise should be prohibited from hearing them in a videotape, even if the statements 

are recommended and effective police interrogation tactics.”34

In light of this and other trial errors, the court reversed, and 

remanded for a new trial.35

Similarly, in State v. Demery,

36 the Supreme Court of 

Washington concluded in a divided opinion that it was error 

to admit a recorded interview in which police detectives suggested the defendant was lying.37 The controlling opinion on 

the issue of whether admitting the statements was error wrote:

The [plurality opinion] concludes a recorded expression of an officer’s opinion that a suspect is lying is 

admissible at trial even though the same officer would not 

be permitted to offer such an opinion in live testimony. 

31 Com. v. Kitchen, 730 A.2d 513 (Pa. Super. 1999); Sweet v. State, 234 P.3d 

1193 (Wyo. 2010).

32 State v. Elnicki, supra note 29, 279 Kan. at 51-52, 105 P.3d at 1226 

(emphasis omitted).

33 State v. Elnicki, supra note 29.

34 Id. at 57, 105 P.3d at 1229.

35 State v. Elnicki, supra note 29.

36 State v. Demery, 144 Wash. 2d 753, 30 P.3d 1278 (2001).

37 See, also, State v. Cordova, supra note 30 (explaining holding in State 

v. Demery, supra note 36); Lanham v. Com., supra note 30 (explaining 

holding in State v. Demery, supra note 36).
- 736 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

I see no distinction between the two. It matters not 

whether the opinion was rendered in the context of an 

interrogation interview or in context of direct testimony 

in open court. The end result is the same: The jury hears 

the officer’s opinion.38

Other courts have concluded that credibility statements by 

law enforcement in a recorded interview are generally admissible or are admissible in certain circumstances to provide 

context to the defendant’s answers.39 In State v. O’Brien,

40 the 

Supreme Court of Missouri concluded that a police officer’s 

in-court testimony that he told the defendant in the interrogation that the officer thought the defendant was lying was not 

error. The court reasoned that “[t]he witness was not telling 

the jury that, in his opinion, the defendant is a liar. Rather, the 

witness was describing the give-and-take of his interrogation 

of” the defendant.41

Similarly, in State v. Cordova,

42 the Court of Appeals of 

Idaho considered whether the trial court erred in admitting 

a videotaped interview in which police stated that the victim was telling the truth and that the defendant was lying. 

In the video, one of the officers told the defendant that the 

officer was trained in detecting deception and could tell that 

the defendant was lying.43 After reviewing case law from 

various jurisdictions on this issue, the court determined that 

38 State v. Demery, supra note 36, 144 Wash. 2d at 767, 30 P.3d at 1286 

(Sanders, J., dissenting).

39 U.S. v. Finley, 477 F.3d 250 (5th Cir. 2007), abrogated on other grounds, 

Riley v. California, ___ U.S. ___, 134 S. Ct. 2473, 189 L. Ed. 2d 430 

(2014); State v. Boggs, 218 Ariz. 325, 185 P.3d 111 (2008); Lanham v. 

Com., supra note 30; State v. Castaneda, 215 N.C. App. 144, 715 S.E.2d 

290 (2011); State v. Gaudreau, supra note 30; State v. Miller, 341 Wis. 2d 

737, 816 N.W.2d 331 (Wis. App. 2012).

40 State v. O’Brien, 857 S.W.2d 212 (Mo. 1993).

41 Id. at 221.

42 State v. Cordova, supra note 30.

43 Id.
- 737 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

the officer’s comments that he was an expert in deception 

detection were not necessary to give context to the defendant’s answers.44 The court concluded that the officer’s comments could have been easily redacted without harming the 

context of the defendant’s later admissions. However, the 

court concluded that the officer’s comments that the defendant was lying were admissible for the purpose of providing 

context to the defendant’s inculpatory answers, but not as 

substantive evidence.45 The court also concluded that the trial 

court’s denial of the defendant’s request for a limiting instruction was error, but concluded that the error in the trial was 

not prejudicial.46

Finally, the approach taken by the Supreme Court of 

Michigan in People v. Musser47 was to decline to adopt a 

bright-line rule, but instead to analyze such statements under 

Michigan’s existing rules of evidence. A detective’s lengthy 

statements about the credibility of the victim were included 

in a recorded interview played for the jury.48 The court first 

considered whether the statements violated the hearsay rule.49

It concluded that the statements were not hearsay because 

they were not offered, and could not be offered, for the 

truth of the matter asserted (i.e., to prove that, in fact, the 

victim was telling the truth or the defendant was lying in 

the interview).50

Because the statements were not hearsay offered for their 

truth, but were offered for the separate purpose of “plac[ing] 

the defendant’s statements in context for the jury,” the court 

focused on the precise issue in the case:

44 Id.

45 Id.

46 Id.

47 People v. Musser, 494 Mich. 337, 835 N.W.2d 319 (2013).

48 Id.

49 Id.

50 Id.
- 738 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

whether the rule precluding a witness from commenting 

on another person’s credibility at trial is triggered by 

an interrogator’s statements that are offered to provide 

context to a defendant’s statements, rather than offered 

to prove the truth of the matter asserted, or whether the 

interrogator’s statements that actually provide context to a 

defendant’s statements have some probative value, unlike 

statements commenting on the credibility of another person that are offered for their truth.51

The court reviewed case law from other courts on this issue, 

noting that “other jurisdictions have come to divergent 

conclusions.”52

[11] The conclusion reached by the court was that under the 

facts of the case, it was not necessary to adopt a bright-line 

rule prohibiting such statements, but, instead, the court would 

analyze the statements under the existing rules of evidence.53

The court held that

where the proponent of the evidence offers an interrogator’s out-of-court statements that comment on a person’s 

credibility for the purpose of providing context to a 

defendant’s statements, the interrogator’s statements are 

only admissible to the extent that the proponent of the 

evidence establishes that the interrogator’s statements are 

relevant to their proffered purpose.54

To show the statements to be relevant and admissible, the 

court explained, the prosecution must do more than offer 

“a mechanical recitation . . . that an interrogator’s statements are necessary to provide ‘context’ for a defendant’s 

responses without explaining how the statements relate to 

the recited purpose.”55 Rather, the trial court must analyze 

51 Id. at 351, 835 N.W.2d at 328-29.

52 Id. at 351, 835 N.W.2d at 329.

53 People v. Musser, supra note 47.

54 Id. at 353-54, 835 N.W.2d at 330.

55 Id. at 354-55, 835 N.W.2d at 330.
- 739 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

whether the statements are both material and probative. The 

court explained:

Under these inquiries, if an interrogator’s out-of-court 

statement is offered to provide context to a defendant’s 

statement that is not “in issue,” it follows that both the 

interrogator’s and the defendant’s statements are immaterial and, thus, not relevant. . . . Likewise, the interrogator’s out-of-court statements or questions have no 

probative value if those statements or questions, when 

considered in relationship to a defendant’s statements, 

do not actually provide context to the defendant’s statements. . . . Accordingly, an interrogator’s out-of-court 

statements must be redacted if that can be done without 

harming the probative value of a defendant’s statements.56

Even if a statement is relevant, the court said, it may be 

excluded under Michigan’s rule 403 if its “‘probative value is 

substantially outweighed by the danger of unfair prejudice’” 

or other considerations.57 Thus, trial courts must weigh the 

probative value of the statements in recorded interviews by 

law enforcement in providing context to a defendant’s statements and the resulting prejudice to a defendant.58 The court 

said that trial courts must give special consideration to the risk 

that juries may have a difficult time limiting consideration of 

the statements to their proper purpose and may give undue 

weight to the statements of a law enforcement officer.59 Finally, 

the court said that when admitting such evidence, trial courts 

should give limiting instructions to the jury about the proper 

use of the evidence.60

The court concluded that the majority of the statements 

of the detective were not probative to provide context to 

56 Id. at 355-56, 835 N.W.2d at 331.

57 Id. at 356 n.15, 835 N.W.2d at 331 n.15 (quoting Mich. R. Evid. 403).

58 People v. Musser, supra note 47.

59 Id.

60 Id.
- 740 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

the defendant’s statements.61 It determined that the limiting 

instruction given after the recording was played was insufficient, reversed the trial court’s judgment, and remanded the 

cause for a new trial.62

We find the approach of the Michigan Supreme Court in 

Musser63 to be the most persuasive. A rule that would render 

categorically inadmissible all statements by law enforcement 

in a recorded interview that happened to implicate the defendant’s credibility would run the risk of excluding important and 

necessary context to the defendant’s admissible responses. 

On the other hand, a rule that categorically allowed all such 

statements to be admitted would run the risk of allowing 

the admission of irrelevant and potentially unfair prejudicial 

statements. The approach articulated in Musser avoids both 

of these pitfalls. It also has the added virtue of not creating 

any new evidentiary rules, but, rather, analyzing these types 

of statements within the framework of the existing rules 

of evidence.

[12] We hold that statements by law enforcement officials 

on the veracity of the defendant or other witnesses, made 

within a recorded interview played for the jury at trial, are 

to be analyzed under the ordinary rules of evidence. Such 

commentary is not admissible to prove the truth of the matter asserted in the commentary. But it may be independently 

admissible for the purpose of providing necessary context to a 

defendant’s statements in the interview which are themselves 

admissible. The police commentary must be probative and 

material in light of that permissible purpose of providing context to the defendant’s responses.64 And even statements that 

are otherwise admissible may be excluded under rule 403.65

61 Id.

62 Id.

63 Id.

64 See §§ 27-401 and 27-402.

65 § 27-403.
- 741 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

Upon request, a defendant is entitled to a limiting instruction 

that such statements are to be considered only for the permissible purpose of providing context to the defendant’s statements in the interview.66

[13] To be relevant, evidence must be probative and material.67 Evidence is probative if it has any tendency to make 

the existence of a fact more or less probable than it would be 

without the evidence.68 A fact is material if it is of consequence 

to the determination of the case.69

To determine whether a statement by a law enforcement 

official in a recorded interview is relevant for the purpose 

of providing context to a defendant’s statement, we first 

consider whether the defendant’s statement itself is relevant, 

whether it makes a material fact more or less probable. If the 

defendant’s statement is itself relevant, then we must consider 

whether the law enforcement statement is relevant to provide 

context to the defendant’s statement. To do this, we consider 

whether the defendant’s statement would be any less probative in the absence of the law enforcement statement. If the 

law enforcement statement does not make the defendant’s 

statement any more probative, it is not relevant. To be clear, 

by allowing admission, under certain circumstances, of law 

enforcement statements in recorded interviews that comment 

on the veracity of the defendant, we are not opening a “back 

door” to allow the admission of improper opinion testimony 

by simply labeling it as “context.” Trial courts have a serious responsibility to ensure that statements are relevant for 

the permissible purpose of providing necessary context to 

a defendant’s statements or that such statements do not run 

afoul of rule 403.

66 Neb. Evid. R. 105, Neb. Rev. Stat. § 27-105 (Reissue 2016).

67 § 27-401.

68 See id.

69 See id.
- 742 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

Finally, we note that nothing about our holding today should 

be read to effect the operation of the rule of completeness, 

under which a party is entitled 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.”70

(c) Application

Under our deferential abuse of discretion standard of review, 

and in light of the limiting instructions given, we conclude 

that the district court’s admission of Howton’s statements did 

not rise to the level of an abuse of discretion.

(i) Relevance

Howton’s statements about Rocha’s honesty or possession 

of the methamphetamine have minimal probative value for the 

only permissible purpose for which they could be admitted: 

to provide context for Rocha’s statements. They would not 

be admitted to prove that Rocha was, in fact, being dishonest 

or guilty of knowingly possessing methamphetamine, which 

would invade the province of the jury.

First, we must consider whether Rocha’s statements were 

relevant. Many of Rocha’s statements were denials of ownership of the drugs or denials that he was being dishonest. 

Rocha’s statements are relevant to the issue of whether he 

knowingly possessed the methamphetamine. But the relevance 

of Rocha’s statements does not automatically render Howton’s 

statements relevant or admissible.

Next, we must consider whether Howton’s statements 

were relevant for the limited purpose of providing context 

to Rocha’s statements. We consider whether Rocha’s statements would be any less probative of a material fact in issue 

in the absence of Howton’s statements. If Rocha’s admissible 

70 Neb. Evid. R. 106(1), Neb. Rev. Stat. § 27-106(1) (Reissue 2016). See, 

also, State v. Thompson, 244 Neb. 375, 507 N.W.2d 253 (1993); State v. 

Schrein, 244 Neb. 136, 504 N.W.2d 827 (1993).
- 743 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

statements are no less probative in the absence of Howton’s 

statements’ context (as compared to Rocha’s statements with 

Howton’s statements’ context), then Howton’s statements are 

not relevant. If Howton’s statements have any probative value 

for the purpose of providing context to Rocha’s statements, it 

is minimal.

(ii) Rule 403

Even relevant evidence is not automatically admissible. It 

must pass muster under rule 403. The probative value of the 

evidence must not be substantially outweighed by the danger 

of unfair prejudice, confusion of the issues, or misleading 

the jury.

[14,15] The risk of unfair prejudice is heightened when the 

statements are made by a law enforcement officer.71 In State v. 

Gonzales, we stated:

[W]hen a prosecutor asserts his or her personal opinions, the jury might be persuaded by a perception that 

counsel’s opinions are correct because of his position as 

prosecutor, rather than being persuaded by the evidence. 

The prosecutor’s opinion carries with it the imprimatur of the government and may induce the jury to trust 

the government’s judgment rather than its own view of 

the evidence.72

Similarly, the opinion of a law enforcement officer carries 

with it the “imprimatur of the government” and can induce 

improper reliance by a jury. Admitting statements by a law 

enforcement officer calling into question a defendant’s honesty 

and stating conclusions about a defendant’s guilt carries with 

it a risk of unfair prejudice. The risk of unfair prejudice in the 

instant case is that the jury could have been influenced, based 

on Howton’s statements, into believing that Rocha did knowingly possess the methamphetamine and that he was lying 

71 Cf. State v. Gonzales, supra note 26.

72 Id. at 646, 884 N.W.2d at 117-18. See, also, People v. Musser, supra note 

47; State v. Demery, supra note 36 (Sanders, J., dissenting).
- 744 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

when he denied it, even though the statements were not admissible for that purpose.

But in considering the risk of unfair prejudice in a rule 

403 analysis, we also consider the effect of limiting instructions given by the trial court. In this case, the district court 

instructed the jury that Howton’s statements were “part of 

interview techniques and should not be considered as substantive evidence in any way in determining if . . . Rocha [was 

in] possession of the alleged controlled substance, nor should 

they be given any weight when considering the truthfulness 

of any statements made by . . . Rocha.” Not only was this 

unambiguous instruction given, but it was given twice: once 

immediately before the video was shown to the jury and a 

second time with the other jury instructions. This instruction made clear to the jurors that they were not to consider 

Howton’s statements for determining Rocha’s guilt. It also 

explained that Howton’s statements were merely an interview technique, making it less likely that the jurors would 

improperly rely on the statements based on Howton’s aura 

of reliability as a law enforcement officer. While a limiting 

instruction or an instruction to disregard does not automatically eliminate any risk of unfair prejudice, it did mitigate the 

risk in this case.

(iii) Abuse of Discretion

While this is a close call, we cannot say, under our deferential standard of review, that it was an abuse of discretion 

for the district court to admit Howton’s statements under a 

relevance and rule 403 analysis. These statements had minimal 

probative value, at best. And statements made by law enforcement carry a special risk of unfair prejudice because they carry 

the imprimatur of the government. But the limiting instruction 

twice given by the court reduced the risk of unfair prejudice 

from this evidence. While this case approaches the line and is 

fact specific, we do not conclude that the district court abused 

its discretion.
- 745 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

The State correctly points out that “there is nothing improper 

with the interrogation techniques in question.”73 We do not 

question the propriety of the interview technique used by 

Howton. Nor do we believe that Howton was doing anything 

but proper police work. But the propriety of an interview 

technique does not render the interrogator’s statements automatically admissible in a court of law.74 Our discussion here 

relates only to the admissibility of evidence, not the propriety 

of Howton’s actions.

3. Denial of Motion to Suppress: 

Search of Vehicle

Rocha argues that the warrantless search of the vehicle 

violated his right to be free from unreasonable searches and 

seizures under the U.S. and Nebraska Constitutions. He argues 

that the district court erred in denying his motion to suppress 

the evidence found in the search of the vehicle.

(a) Standard of Review

[16,17] 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.75 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.76 When a motion to suppress is 

denied pretrial and again during trial on renewed objection, an 

appellate court considers all the evidence, both from trial and 

from the hearings on the motion to suppress.77

73 Brief for appellee at 14.

74 See State v. Elnicki, supra note 29.

75 State v. Rothenberger, supra note 4.

76 Id.

77 Id.
- 746 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

The ultimate determination of probable cause to perform a 

warrantless search is reviewed de novo, and findings of fact 

are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge.78

(b) Right Against Unreasonable 

Searches and Seizures

This court typically construes the enumerated rights in the 

Nebraska Constitution consistently with their counterparts 

in the U.S. Constitution as construed by the U.S. Supreme 

Court,79 and we do so today.

[18,19] The ultimate touchstone of the Fourth Amendment, 

and article I, § 7, of the Nebraska Constitution, is reasonableness.80 Searches and seizures must not be unreasonable. 

Searches without a valid warrant are per se unreasonable, subject only to a few specifically established and well-delineated 

exceptions.81

[20] Among the exceptions to the warrant requirement are 

searches incident to a lawful arrest82 and the “automobile 

exception.”83 Rocha argues that the warrantless search of his 

vehicle does not fall within either the search incident to lawful arrest exception or the automobile exception. The State 

focuses on the automobile exception, arguing that it does 

apply, but does not address the search incident to lawful arrest 

exception. As did the district court, we conclude that the 

78 State v. Dalland, 287 Neb. 231, 842 N.W.2d 92 (2014).

79 See, e.g., State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015); State 

v. Simnick, 279 Neb. 499, 779 N.W.2d 335 (2010); State v. Havlat, 222 

Neb. 554, 385 N.W.2d 436 (1986). But see State v. Havlat, supra note 79 

(Shanahan, J., dissenting).

80 See Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 

2d 560 (2016). See, also, State v. Rothenberger, supra note 4.

81 Arizona v. Gant, supra note 3.

82 Id.

83 California v. Carney, 471 U.S. 386, 390, 105 S. Ct. 2066, 85 L. Ed. 2d 406 

(1985).
- 747 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

search was justified under the automobile exception. We do 

not consider whether the search could have been justified as a 

search incident to lawful arrest.

(c) Automobile Exception

The automobile exception to the warrant requirement was 

first articulated by the U.S. Supreme Court in 1925 in the 

case Carroll v. United States.

84 Therein, the Court considered 

whether a warrantless search of an automobile, found to be 

smuggling illegal whisky and gin during the Prohibition Era, 

violated the Fourth Amendment.85 While this was the first case 

to articulate the automobile exception, the Court noted that the 

First Congress—the same Congress that proposed the adoption 

of the Fourth Amendment—drew a distinction in law between 

searches of homes and searches of ships or movable vessels, 

with the latter not requiring a warrant.86

The Court held:

[I]f the search and seizure without a warrant are made 

upon probable cause, that is, upon a belief, reasonably 

arising out of circumstances known to the seizing officer, 

that an automobile or other vehicle contains that which by 

law is subject to seizure and destruction, the search and 

seizure are valid.87

A key rationale for the Court’s holding was that in “a search 

of a ship, motor boat, wagon or automobile, for contraband 

goods, . . . it is not practicable to secure a warrant because 

the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”88 The mobility 

84 Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 

(1925).

85 Id.

86 Id.

87 Id., 267 U.S. at 149.

88 Id., 267 U.S. at 153.
- 748 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

of automobiles continued to be the primary rationale behind 

the automobile exception.89

Rocha relies on Coolidge v. New Hampshire90 in claiming 

that the search of his vehicle was not within the automobile 

exception. Therein, the Court stated the rule that “a search or 

seizure carried out on a suspect’s premises without a warrant 

is per se unreasonable, unless the police can show that it falls 

within one of a carefully defined set of exceptions based on 

the presence of ‘exigent circumstances.’”91 The Court examined the rationale for the automobile exception provided in 

Carroll, the mobility of automobiles and the risk that “‘the 

car’s contents may never be found again if a warrant must be 

obtained.’”92 The Court concluded that the application of the 

automobile exception could not be justified under the facts of 

the case because “[t]here was no way in which [the defendant] 

could conceivably have gained access to the automobile after 

the police arrived on his property.”93

Soon after Coolidge was decided, the Court distinguished 

the decision in Cardwell v. Lewis.

94 The Court said that because 

in Coolidge, the car “was parked on the defendant’s driveway, 

the seizure of that automobile required an entry upon private 

property.”95 It distinguished these facts from the facts of its 

case, in which “the automobile was seized from a public place 

where access was not meaningfully restricted.”96

89 See, e.g., United States v. Ross, 456 U.S. 798, 102 S. Ct. 2157, 72 L. Ed. 

2d 572 (1982); Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. 

Ed. 2d 419 (1970).

90 Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 

564 (1971).

91 Id., 403 U.S. at 474-75 (emphasis omitted).

92 Id., 403 U.S. at 460.

93 Id.

94 Cardwell v. Lewis, 417 U.S. 583, 94 S. Ct. 2464, 41 L. Ed. 2d 325 (1974).

95 Id., 417 U.S. at 593.

96 Id.
- 749 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

These early U.S. Supreme Court cases discussing the 

automobile exception relied primarily on the rationale of 

the mobility of automobiles and the risk that they might 

be driven away before a search could be conducted. But 

later cases articulated an additional rationale: the reasonable 

expectation of privacy in an automobile is less than in one’s 

home.97 Thus,

[e]ven in cases where an automobile was not immediately mobile, the lesser expectation of privacy resulting from its use as a readily mobile vehicle justified 

application of the vehicular exception. . . .

These reduced expectations of privacy derive . . . from 

the pervasive regulation of vehicles capable of traveling 

on the public highways.98

As the additional rationale for the automobile exception 

developed, the exception became more categorical and less 

dependent on the likelihood in each case that the automobile might be driven away. In Michigan v. Thomas,

99 the 

Court said:

It is thus clear that the justification to conduct such a 

warrantless search does not vanish once the car has been 

immobilized; nor does it depend upon a reviewing court’s 

assessment of the likelihood in each particular case that 

the car would have been driven away, or that its contents would have been tampered with, during the period 

required for the police to obtain a warrant.

97 Pennsylvania v. Labron, 518 U.S. 938, 116 S. Ct. 2485, 135 L. Ed. 

2d 1031 (1996); California v. Carney, supra note 83; South Dakota v. 

Opperman, 428 U.S. 364, 96 S. Ct. 3092, 49 L. Ed. 2d 1000 (1976); 

Cardwell v. Lewis, supra note 94.

98 California v. Carney, supra note 83, 471 U.S. at 391-92.

99 Michigan v. Thomas, 458 U.S. 259, 261, 102 S. Ct. 3079, 73 L. Ed. 2d 750 

(1982). See, also, California v. Carney, supra note 83.
- 750 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

The Court has made clear that if probable cause and ready 

mobility are present, no additional showing of exigent circumstances is required.100

Rocha argues that exigent circumstances are still a viable 

requirement of the automobile exception. He relies on our 

decision in State v. Neely,101 wherein we stated, relying on 

Coolidge102 and other U.S. Supreme Court cases, that the automobile exception requires probable cause and exigent circumstances consisting of “the mobility of the automobile and the 

possibility that the suspect may take himself and the evidence 

in the vehicle out of the jurisdiction before a warrant can be 

obtained.” We found that the warrantless search in that case 

was not within the automobile exception because there was no 

possibility the defendant could have moved the vehicle when 

it was stored at the police station and there were no circumstances preventing police from obtaining a warrant prior to 

searching the vehicle.103

Rocha attempts to distinguish Maryland v. Dyson,

104 in 

which the Court stated that there is no separate exigency 

requirement for the automobile exception so long as the 

vehicle is readily mobile and there is probable cause. In State 

v. Alarcon-Chavez,

105 we stated that the requirements of the 

automobile exception are probable cause and ready mobility 

of the vehicle. Rocha claims the ready mobility requirement is 

an exigent circumstance.

100 Maryland v. Dyson, 527 U.S. 465, 119 S. Ct. 2013, 144 L. Ed. 2d 442 

(1999).

101 State v. Neely, 236 Neb. 527, 536, 462 N.W.2d 105, 110 (1990).

102 See Coolidge v. New Hampshire, supra note 90.

103 State v. Neely, supra note 101.

104 Maryland v. Dyson, supra note 100.

105 State v. Alarcon-Chavez, 284 Neb. 322, 821 N.W.2d 359 (2012).
- 751 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

Rocha also cites cases106 from other states which have continued to use the “two part requirement”107 for the automobile 

exception even after Dyson. Some of these cases have adopted 

stricter requirements for the automobile exception under state 

law, continuing to require a showing of exigent circumstances. 

In some of these cases, exigent circumstances have been held 

to mean the vehicle was readily mobile and that “‘it was not 

practicable under the circumstances to obtain a warrant.’”108

But other jurisdictions have been entirely consistent with the 

test in Dyson and have required only ready mobility and probable cause. There is no additional requirement of the impracticability of obtaining a warrant.109

To the extent that Rocha argues that the “exigent 

circumstance”110 of a readily mobile vehicle and probable cause 

are the requirements of the automobile exception, we agree. 

To the extent that Rocha argues that any additional showing 

of exigent circumstances is required, such as a showing that it 

was impracticable for the police to obtain a warrant under the 

circumstances, we disagree.

Rocha’s argument seems to be premised on a very narrow 

application of the ready mobility requirement. He argues that 

106 State v. Wallace, 80 Haw. 382, 910 P.2d 695 (1996); State v. Conn, 278 

Kan. 387, 99 P.3d 1108 (2004); State v. Elison, 302 Mont. 228, 14 P.3d 

456 (2000); State v. Cooke, 163 N.J. 657, 751 A.2d 92 (2000), abrogated,

State v. Witt, 223 N.J. 409, 126 A.3d 850 (2015); State v. Gomez, 122 N.M. 

777, 932 P.2d 1 (1997); State v. Zwicke, 767 N.W.2d 869 (N.D. 2009); 

State v. Anderson, 910 P.2d 1229 (Utah 1996); State v. Bauder, 181 Vt. 

392, 924 A.2d 38 (2007); State v. Tibbles, 169 Wash. 2d 364, 236 P.3d 885 

(2010).

107Brief for appellant at 39.

108 State v. Elison, supra note 106, 302 Mont. at 244, 14 P.3d at 468. See, 

also, State v. Bauder, supra note 106; State v. Tibbles, supra note 106.

109 See, State v. Conn, supra note 106; State v. Howard, 51 Kan. App. 2d 28, 

339 P.3d 809 (2014) (citing Maryland v. Dyson, supra note 100); State v. 

Zwicke, supra note 106.

110Brief for appellant at 38.
- 752 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

“because [Rocha] was incapable of moving the [vehicle] or 

destroying evidence, officers should have obtained a warrant 

before searching the vehicle.”111 This argument focuses on 

Rocha’s practical ability to move the vehicle in light of his 

arrest rather than on the inherent mobility of the vehicle as a 

functioning automobile.

Recently in Alarcon-Chavez, we analyzed the ready mobility requirement, concluding that “[t]he vehicle was operational 

and therefore readily movable” even though the defendant had 

already been arrested and presumably did not have access to 

the vehicle.112

Other state and federal courts have considered the ready 

mobility requirement and have generally focused the inquiry 

on the inherent mobility of the vehicle rather than whether 

the defendant or others actually had the ability to move the 

vehicle at the time of the search.113 The 11th Circuit has said, 

“All that is necessary to satisfy th[e] element [of ready mobility] is that the automobile is operational.”114 In another case, 

the Second Circuit rejected an argument that the defendant’s 

vehicle was not readily mobile, because the defendant had 

been taken away from the vehicle to the police station. The 

court said:

Whether a vehicle is “readily mobile” within the meaning of the automobile exception has more to do with 

the inherent mobility of the vehicle than with the potential for the vehicle to be moved from the jurisdiction, 

thereby precluding a search. . . . The district court’s reading of “ready mobility” is in error because the district 

court appeared to regard the actual ability of a driver or 

111 Id.

112 State v. Alarcon-Chavez, supra note 105, 284 Neb. at 334, 821 N.W.2d at 

368.

113 See, Warrantless Searches and Seizures, 45 Geo. L.J. Ann. Rev. Crim.

Proc. 49 (2016); 79 C.J.S. Searches § 113 (2006).

114 U.S. v. Watts, 329 F.3d 1282, 1286 (11th Cir. 2003).
- 753 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

passenger to flee immediately in the car, or the likelihood of hi[s] or her doing so, as a requirement for the 

application of the automobile exception.115

Relying on a case involving a warrantless search of a truck 

that was stuck in a ditch, the 10th Circuit said that the ready 

mobility inquiry does not focus on “‘factual controversies 

regarding the degree to which a vehicle is or is not readily 

mobile, or whether its mobility has been or could be obstructed 

by the police.’”116 The court noted that in the case cited, the 

truck was readily mobile because it “had not lost its inherent

mobility” and because “[t]here was ‘no evidence of permanent immobility.’”117

[21,22] Similarly, the Eighth Circuit has noted that “[i]t is 

the characteristic mobility of all automobiles, not the relative 

mobility of the car in a given case,” that justifies the automobile exception.118 The Eighth Circuit has also said that the test 

for ready mobility is whether the vehicle is “‘readily capable’ 

of ‘being used on the highways’” and is “‘stationary in a place 

not regularly used for residential purposes.’”119

Like federal courts, state courts have generally adopted a 

broad reading of the ready mobility requirement. The Supreme 

Court of Indiana has said:

In light of the Supreme Court’s recent emphatic statement in Dyson[120]

 that the automobile exception “does 

not have a separate exigency requirement,” . . . we conclude that this exception to the warrant requirement under 

the Fourth Amendment does not require any additional 

115 U.S. v. Howard, 489 F.3d 484, 493 (2d Cir. 2007).

116 U.S. v. Mercado, 307 F.3d 1226, 1229 (10th Cir. 2002).

117 Id. (emphasis in original).

118 U.S. v. Perry, 925 F.2d 1077, 1080 n.4 (8th Cir. 1991). See, also, United 

States v. Hepperle, 810 F.2d 836 (8th Cir. 1987).

119 U.S. v. Holleman, 743 F.3d 1152, 1158 (8th Cir. 2014) (quoting California 

v. Carney, supra note 83).

120 Maryland v. Dyson, supra note 100.
- 754 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

consideration of the likelihood, under the circumstances, 

of a vehicle being driven away. Rather, we understand the 

“ready mobility” requirement of the automobile exception 

to mean that all operational, or potentially operational, 

motor vehicles are inherently mobile, and thus a vehicle 

that is temporarily in police control or otherwise confined 

is generally considered to be readily mobile and subject 

to the automobile exception to the warrant requirement 

if probable cause is present. This broad understanding 

of “readily mobile” is also consistent with the recognition that, for Fourth Amendment purposes, an individual 

is deemed to have a reduced expectation of privacy in 

an automobile.121

The Supreme Court of Kentucky rejected the argument that 

“the ready mobility element is an exigency requirement that 

cannot be met when a defendant is already arrested.”122 The 

court instead concluded that “[r]eady mobility refers to the 

capability of using an automobile on the highways, not the 

probability that it will be used to do so,” and that “a search 

of an automobile ‘is proper even if the occupants or owners 

are taken into custody.’”123 The Iowa Supreme Court has held 

that “sufficient exigency exists to justify a warrantless search 

of a readily mobile vehicle even after the vehicle has been 

impounded and removed to another location.”124

The U.S. Supreme Court has appeared to adopt a broad 

reading of the ready mobility requirement. In Thomas, the 

Court said the justification for a warrantless search “does 

not vanish once the car has been immobilized; nor does it 

depend upon a reviewing court’s assessment of the likelihood 

in each particular case that the car would have been driven 

121 Myers v. State, 839 N.E.2d 1146, 1152 (Ind. 2005) (citing Pennsylvania v. 

Labron, supra note 97). Accord California v. Carney, supra note 83.

122Chavies v. Com., 354 S.W.3d 103, 111 (Ky. 2011).

123 Id.

124 State v. Allensworth, 748 N.W.2d 789, 797 (Iowa 2008).
- 755 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

away . . . during the period required for the police to obtain 

a warrant.”125 In Pennsylvania v. Labron,

126 the Court likewise held that the automobile exception applied even where 

the defendant had already been arrested when the search 

occurred and, thus, presumably did not pose any risk of moving his vehicle.

[23] In light of the overwhelming weight of authorities, we 

hold that the requirement of ready mobility for the automobile 

exception is met whenever a vehicle that is not located on private property is capable or apparently capable of being driven 

on the roads or highways. This inquiry does not focus on the 

likelihood of the vehicle’s being moved under the particular 

circumstances and is generally satisfied by the inherent mobility of all operational vehicles. It does not depend on whether 

the defendant has access to the vehicle at the time of the 

search or is in custody, nor on whether the vehicle has been 

impounded. The purpose of the ready mobility requirement is 

to distinguish vehicles on public property from fixed, permanent structures, in which there is a greater reasonable expectation of privacy.

(d) Application

[24,25] In this case, the automobile exception clearly justifies the search of the vehicle which Rocha was driving. As 

the district court correctly concluded, Howton had probable 

cause to search the vehicle. Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.127 Probable cause to search requires that the known 

facts and circumstances are sufficient to warrant a person 

of reasonable prudence in the belief that contraband or evidence of a crime will be found.128 The totality of the facts, 

125 Michigan v. Thomas, supra note 99, 458 U.S. at 261.

126Pennsylvania v. Labron, supra note 97.

127 State v. Dalland, supra note 78.

128 Id.
- 756 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

including Rocha’s “nervous” behavior, the residue found in 

Rocha’s sweatshirt that appeared to be marijuana, and the suspected marijuana, drug paraphernalia, and digital scale found 

in Trejo’s purse, provided the necessary probable cause for 

Howton to search the vehicle. 

Additionally, the vehicle unquestionably was readily mobile, 

because Rocha had just driven it and it was not located on 

private property. Because the vehicle was readily mobile and 

because there was probable cause to search the vehicle, the 

search was permissible under the automobile exception and did 

not violate the U.S. and Nebraska Constitutions’ prohibitions 

against unreasonable searches and seizures.

4. Overruling of Objection and Motion for Mistrial: 

Questioning by Prosecution Regarding

Lack of DNA and Fingerprint Testing

of Evidence by Defense

Rocha argues that the district court erred in overruling his 

objection to questioning of Howton by the prosecution during 

the trial as to whether anyone besides the Scottsbluff Police 

Department had done any DNA and fingerprint testing of 

the evidence. The question and answer occurred on redirect 

examination after the defense elicited on cross-examination 

that Howton had not requested DNA and fingerprint testing on the evidence found in the vehicle. The question and 

answer appear to allude to the fact that Rocha had not done 

his own independent testing of the evidence to show that 

his fingerprints and DNA were not on the items containing 

methamphetamine. After Rocha’s objection was overruled, 

he made a motion for mistrial, which the court denied. He 

argues that the questioning impermissibly switched the burden of proof.

(a) Standard of Review

[26,27] Whether to grant a motion for mistrial is within 

the trial court’s discretion, and this court will not disturb its 
- 757 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

ruling unless the court abused its discretion.129 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.130

(b) Burden of Proof 

in Criminal Cases

[28] Under the Due Process Clause of the 14th Amendment 

to the U.S. Constitution and under the Nebraska Constitution, 

in a criminal prosecution, the State must prove every ingredient 

of an offense beyond a reasonable doubt and may not shift the 

burden of proof to the defendant by presuming an ingredient 

upon proof of the other elements of the offense.131

Because the burden of proof always remains with the State, 

it cannot comment on a defendant’s failure to produce evidence 

to refute an element of the crime, because doing so could erroneously lead the jury to believe that the defendant carried the 

burden of introducing evidence.132 The exception to this rule is 

when the defendant voluntarily assumes some burden of proof 

by asserting the defenses of alibi, of self-defense, and of others, relying on facts that could be elicited only from a witness 

who is not equally available to the State.133

The Supreme Court of Florida faced a similar situation 

in Hayes v. State.

134 In that case, the defense brought out on 

direct examination that the State had never requested testing of 

certain bloodstains.135 On redirect examination, the trial judge 

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

130 Id.

131Patterson v. New York, 432 U.S. 197, 97 S. Ct. 2319, 53 L. Ed. 2d 281 

(1977). See State v. Hinrichsen, 292 Neb. 611, 877 N.W.2d 211 (2016).

132 See Jackson v. State, 575 So. 2d 181 (Fla. 1991).

133 Id.

134Hayes v. State, 660 So. 2d 257 (Fla. 1995).

135 Id.
- 758 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

allowed the State, over an objection, to inquire as to whether 

the defense had requested its own testing of the bloodstains, 

which it had not.136 The court found that the question and 

answer were improper and prejudicial because they may have 

led the jury to believe the defendant had an obligation to test 

the evidence in order to prove his innocence.137

We reject the State’s argument that Rocha “opened the door” 

to the questioning of Howton about Rocha’s failure to conduct 

his own DNA and fingerprint testing. While a defendant may 

invite the State to explain why it chose not to submit certain 

items for testing, “a defendant in a criminal case can never 

‘open the door’ to shift the burden of proof.”138 A defendant 

is entitled to inquire about weaknesses in the State’s case, but 

this does not open the door for the State to point out that the 

defendant has not proved his or her innocence.

This case is akin to Hayes.

139 The prosecution’s question 

and Howton’s answer had the risk of misleading the jury into 

thinking that Rocha had an obligation to prove that his fingerprints and DNA were not on the vials containing methamphetamine. Rocha did not open the door to this questioning by raising the State’s failure to conduct such testing. The prosecution 

properly elicited testimony from Howton why he did not have 

the evidence tested for DNA and fingerprints, but it went too 

far when it asked about whether “anyone else” (i.e., Rocha) 

had it tested.

[29] However, the district court did not abuse its discretion by denying Rocha’s motion for a mistrial as a result of 

the prosecution’s questioning. The court instructed the jury to 

disregard the testimony in its entirety and made clear to the 

jury that “Rocha has pleaded not guilty and is presumed to 

136 Id.

137 Id.

138People v. Beasley, 384 Ill. App. 3d 1039, 1048, 893 N.E.2d 1032, 1040, 

323 Ill. Dec. 558, 566 (2008).

139Hayes v. State, supra note 134.
- 759 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

be innocent” and that “[t]he State’s burden to prove each element of a crime charged never shifts to a defendant.” Absent 

evidence to the contrary, it is presumed that a jury followed the 

instructions given in arriving at its verdict.140 Under our abuse 

of discretion standard of review, we conclude that the questioning and testimony, in light of the jury instructions, did not 

deprive Rocha of a fair trial.

5. Denial of Request for Jury Instruction: 

Lesser-Included Offense

Rocha argues that the district court erred in denying his 

request to instruct the jury on the lesser-included offense of 

attempted possession of a controlled substance. The district 

court denied the request, because it “didn’t think the evidence 

warranted a lesser included attempt in this particular case.”

(a) Standard of Review

[30] Whether the jury instructions given by a trial court are 

correct is a question of law.141 When reviewing questions of 

law, an appellate court resolves the questions independently of 

the conclusion reached by the lower court.142

(b) Jury Instructions: 

Lesser-Included Offenses

[31] A court must instruct on a lesser-included offense if 

(1) the elements of the lesser offense for which an instruction is requested are such that one cannot commit the greater 

offense without simultaneously committing the lesser offense 

and (2) the evidence produces a rational basis for acquitting the 

defendant of the greater offense and convicting the defendant 

of the lesser offense.143

140 State v. McSwine, 292 Neb. 565, 873 N.W.2d 405 (2016).

141 State v. Rothenberger, supra note 4.

142 Id.

143 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
- 760 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

[32-34] To determine whether one statutory offense is a 

lesser-included offense of the greater, we look to the elements 

of the crime and not to the facts of the case.144 The test for 

determining whether a crime is a lesser-included offense is 

whether the offense in question cannot be committed without 

committing the lesser offense.145 Where a crime is capable of 

being attempted, an attempt to commit such a crime is a lesserincluded offense of the crime charged.146 Every completed 

crime necessarily includes an attempt to commit it.147

A person shall be guilty of an attempt to commit a crime 

if he or she:

. . . .

(b) Intentionally engages in conduct which, under the 

circumstances as he or she believes them to be, constitutes a substantial step in a course of conduct intended to 

culminate in his or her commission of the crime.148

Conduct is not to be considered a substantial step unless it 

is strongly corroborative of the defendant’s criminal intent.149

Whether a defendant’s conduct constitutes a substantial step 

toward the commission of a particular crime and is an attempt 

is generally a question of fact.150

[35,36] 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.151

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

144 Id.

145 State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).

146 See id.

147 Id.

148Neb. Rev. Stat. § 28-201(1) (Cum. Supp. 2014).

149 § 28-201(3); State v. Babbitt, 277 Neb. 327, 762 N.W.2d 58 (2009).

150 Id.

151 State v. Howard, 282 Neb. 352, 803 N.W.2d 450 (2011); NJI2d Crim. 4.2.
- 761 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

direct or circumstantial evidence.152 To be guilty, the defendant must possess the controlled substance “knowingly or 

intentionally.”153

[37] To establish reversible error from a court’s refusal to 

give a requested instruction, an appellant has the burden to 

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

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

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

refusal to give the tendered instruction.154

The district court did not err by denying Rocha’s request for 

a jury instruction on the lesser-included offense of attempted 

possession of a controlled substance, because the evidence did 

not produce a rational basis for acquitting him of the greater 

offense of possession but convicting him of the lesser offense 

of attempted possession.

Rocha argues that the facts could support a conviction of 

attempted possession but not actual possession. He correctly 

states that “[t]he issue at trial was whether [he] actually knew 

the [Wyoming canister] contained methamphetamine.”155 He 

argues that the jury could have found that because he took the 

Wyoming canister as collateral for a $700 loan, he may not 

have known, but merely suspected, that it contained methamphetamine and thus was engaging in a substantial step toward 

possessing a controlled substance.

As the criminal attempt statute makes clear, a person commits an attempted crime when he or she “[i]ntentionally 

engages in conduct” that “constitutes a substantial step” toward 

the completion of the crime.156 Rocha’s argument that the jury 

may have found that he suspected, but did not know, that the 

152 State v. Howard, supra note 151.

153Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2014).

154 State v. Armagost, 291 Neb. 117, 864 N.W.2d 417 (2015).

155Brief for appellant at 47.

156 § 28-201(1)(b) (emphasis supplied).
- 762 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

canister contained methamphetamine is an argument that his 

state of mind constituted a substantial step toward the necessary state of mind for the crime of possession (knowledge or 

intent). This argument confuses the “mens rea”157 and “actus 

reus”158 components of criminal law.

Rocha’s knowledge whether the Wyoming canister contained 

methamphetamine was the primary issue at trial, because his 

knowledge was determinative of whether he “knowingly [and] 

intentionally”159 possessed the controlled substance, the mens 

rea component of the crime. Whether he possessed the methamphetamine, the actus reus component, was not the primary 

issue, because it was undisputedly found in the vehicle over 

which he had control.

To be guilty of an attempt, a person must intentionally

engage in conduct constituting a substantial step toward the 

completion of the underlying crime. An attempted crime 

involves intent, the mens rea, and conduct that is a substantial 

step toward the completed crime, the actus reus. But if Rocha 

had the intent to possess or the intent to attempt to possess 

the methamphetamine, then he would be guilty of actual possession, not just attempted possession, because the methamphetamine was under his control. The facts in this case do not 

support the conclusion that Rocha could be guilty of attempted 

possession but not possession.

Because an instruction as to attempted possession of a 

controlled substance was not warranted under the facts in 

157Black’s Law Dictionary 1134 (10th ed. 2014) (defining term as “[t]he state 

of mind that the prosecution, to secure a conviction, must prove that a 

defendant had when committing a crime”).

158 Id. at 44 (defining term as “[t]he wrongful deed that comprises the physical 

components of a crime and that generally must be coupled with mens rea 

to establish criminal liability” and “[t]he voluntary act or omission, the 

attendant circumstances, and the social harm caused by a criminal act, all 

of which make up the physical components of a crime”).

159 See § 28-416(3).
- 763 -

Nebraska Supreme Court Advance Sheets

295 Nebraska Reports

STATE v. ROCHA

Cite as 295 Neb. 716

this case, the district court did not err in denying Rocha’s 

requested instruction.

V. CONCLUSION

Because there was insufficient evidence to show when 

Rocha’s driver’s license was suspended, we vacate his conviction for driving under suspension. We reject all of his 

other assignments of error, or find that they constitute harmless error. We affirm the judgment of the district court in all 

other respects.

Affirmed in part, and in part vacated.

Heavican, C.J., not participating.