State v. Draganescu

stAte of nebrAskA, Appellee , v .
ion drAGAnescu , AppellAnt .
755 N.W.2d 57
Filed August 22, 2008. 	No. S-07-797.
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Appeal and Error. In reviewing a trial court’s ruling on a motion to sup-
press based on the Fourth Amendment, an appellate court will uphold its findings
of fact unless they are clearly erroneous. But an appellate court reviews de novo
the trial court’s ultimate determinations of reasonable suspicion to conduct an
investigatory stop and probable cause to perform a warrantless search.
2. Constitutional Law: Investigative Stops: Motor Vehicles: Police Officers and
Sheriffs: Search and Seizure. Temporary detention of individuals during the
stop of an automobile by the police, even if only for a brief period and for
a limited purpose, constitutes a seizure of persons within the meaning of the
Fourth Amendment.
3. Constitutional Law: Motor Vehicles. An individual operating or traveling in an
automobile does not lose all reasonable expectation of privacy simply because the
automobile and its use are subject to government regulation.
4. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. An officer’s stop of a vehicle is objectively reasonable when the officer has
probable cause to believe that a traffic violation has occurred.
5. Constitutional Law: Probable Cause: Intent. Subjective intentions play no role
in ordinary, probable-cause Fourth Amendment analysis.
6. Investigative Stops: Police Officers and Sheriffs: Probable Cause. If an officer
has probable cause to stop a violator, the stop is objectively reasonable and any
ulterior motivation is irrelevant.
7. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. To detain a motorist for further investigation past the time reasonably nec-
essary to conduct a routine investigation incident to a traffic stop, an officer must
have a reasonable, articulable suspicion that the motorist is involved in criminal
activity unrelated to the traffic violation.
8. ____: ____: ____: ____. reasonable suspicion for further detention must exist after
the point that an officer issues a citation.
9. Investigative Stops: Police Officers and Sheriffs: Probable Cause. Whether
a police officer has a reasonable suspicion based on sufficient articulable facts
depends on the totality of the circumstances.
10. ____: ____: ____. Courts must determine whether reasonable suspicion exists on a
case-by-case basis.
11. Probable Cause: Words and Phrases. reasonable suspicion entails some minimal
level of objective justification for detention. It is something more than an incho-
ate and unparticularized hunch—but less than the level of suspicion required for
probable cause.
12. Probable Cause. Factors that would independently be consistent with inno-
cent activities may nonetheless amount to reasonable suspicion when consid-
ered collectively.
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13. Search and Seizure: Motor Vehicles: Police Officers and Sheriffs: Probable
Cause. generally, the factors supporting an officer’s reasonable suspicion of illegal
drug activity when coupled with a well-trained dog’s positive indication of drugs in
a vehicle will give the officer probable cause to search the vehicle.
14. Rules of Evidence. In proceedings where the Nebraska evidence rules apply, the
admissibility of evidence is controlled by the Nebraska evidence rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
15. Rules of Evidence: Appeal and Error. Where the Nebraska evidence rules com-
mit the evidentiary question at issue to the discretion of the trial court, an appellate
court reviews the admissibility of evidence for an abuse of discretion.
16. Judges: Appeal and Error. The exercise of judicial discretion is implicit in deter-
mining the relevance of evidence, and a trial court’s decision regarding relevance
will not be reversed absent an abuse of discretion.
17. Evidence: Words and Phrases. evidence is relevant if it tends in any degree to
alter the probability of a material fact.
18. ____: ____. relevancy requires only that the degree of probativeness be something
more than nothing.
19. Criminal Law: Evidence. evidence of a defendant’s consciousness of guilt is
relevant as a circumstance supporting an inference that the defendant is guilty of
the crime charged.
20. ____: ____. When the evidence is sufficient to justify an inference that the defen-
dant acted with consciousness of guilt, the fact finder can consider such evidence
even if the conduct could be explained in another way.
21. ____: ____. Unlike general denials of guilt, a defendant’s exculpatory statements of
fact that are proved to be false at trial are probative of the defendant’s conscious-
ness of guilt.
22. Rules of Evidence: Hearsay. hearsay is not admissible except as provided by the
Nebraska evidence rules.
23. ____: ____. A trial judge does not have discretion to admit inadmissible hear-
say statements.
24. Rules of Evidence: Hearsay: Appeal and Error. Because of the factors a trial
court must weigh in deciding whether to admit evidence under the residual hearsay
exception, an appellate court applies an abuse of discretion standard to review
hearsay rulings under this exception.
25. Rules of Evidence: Appeal and Error. When judicial discretion is not a factor,
whether the underlying facts satisfy the legal rules governing the admissibility of
such evidence is a question of law, subject to de novo review.
26. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court reviews for clear error the factual
findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s
ultimate determination to admit evidence over a hearsay objection.
27. Rules of Evidence: Hearsay: Words and Phrases. A written assertion offered to
prove the truth of the matter asserted is a hearsay statement under Neb. evid. r.
801(3), Neb. rev. Stat. § 27-801(3) (reissue 1995), unless it falls within an excep-
tion or exclusion under the hearsay rules.
STATe v. DrAgANeSCU 	449
Cite as 276 Neb. 448

28. Rules of Evidence: Hearsay. Computerized printouts that are merely the visual
counterparts to routine electronic business records are usually hearsay, but they can
be admissible under the business records exception.
29. Rules of Evidence: Hearsay: Pretrial Procedure: Notice. An adverse party’s
knowledge of a statement is not enough to satisfy the notice requirement of
Neb. evid. r. 804(2)(e), Neb. rev. Stat. § 27-804(2)(e) (reissue 1995). The
proponent of the evidence must provide notice before trial to the adverse party of
his or her intentions to use the statement to take advantage of the residual hear-
say exception.
30. Judgments: Appeal and Error. Where the record adequately demonstrates that
the decision of a trial court is correct—although such correctness is based on a
ground or reason different from that assigned by the trial court—an appellate court
will affirm.
31. Rules of Evidence: Appeal and Error. An appellate court can consider whether
the record clearly shows an exhibit was admissible for the truth of the matter
asserted under a different rule from the one applied by the trial court when both
parties had a fair opportunity to develop the record on the underlying facts.
32. Rules of Evidence. When a Nebraska evidence rule is substantially similar to a
corresponding federal rule of evidence, Nebraska courts may look to federal deci-
sions interpreting the corresponding federal rule for guidance in construing the
Nebraska rule.
33. Evidence. A party’s possession of a written statement can be an adoption of what
its contents reveal under circumstances that tie the party to the document in a
meaningful way.
34. Trial: Evidence. A court must determine whether there is sufficient foundation
evidence for the admission of physical evidence on a case-by-case basis.
35. ____: ____. Because authentication rulings are necessarily fact specific, a trial court
has discretion to determine whether evidence has been properly authenticated.
36. Trial: Evidence: Appeal and Error. An appellate court reviews a trial court’s rul-
ing on authentication for abuse of discretion.
37. Rules of Evidence. Neb. evid. r. 901, Neb. rev. Stat. § 27-901 (reissue 1995),
does not impose a high hurdle for authentication or identification.
38. Rules of Evidence: Proof. A proponent of evidence is not required to conclusively
prove the genuineness of the evidence or to rule out all possibilities inconsistent
with authenticity.
39. ____: ____. If a proponent’s showing is sufficient to support a finding that the
evidence is what it purports to be, the proponent has satisfied the requirement of
Neb. evid. r. 901(1), Neb. rev. Stat. § 27-901(1) (reissue 1995).
40. ____: ____. A proponent may authenticate a document under Neb. evid. r.
901(2)(a), Neb. rev. Stat. § 27-901(2)(a) (reissue 1995), by the testimony of
someone with personal knowledge that it is what it is claimed to be, such as a
person familiar with its contents.
41. ____: ____. Under Neb. evid. r. 901(2)(d), Neb. rev. Stat. § 27-901(2)(d)
(reissue 1995), a proponent may authenticate a document by circumstantial evi-
dence, or its appearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.
450 	276 NeBrASKA rePorTS

42. Lesser-Included Offenses. Whether a crime is a lesser-included offense is deter-
mined by a statutory elements approach and is a question of law.
43. Jury Instructions. Whether jury instructions given by a trial court are correct is a
question of law.
44. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusions.
45. 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 with-
out 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.
46. 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.
47. Controlled Substances: Intent: Evidence: Expert Witnesses: Juries. evidence
of the quantity of a controlled substance possessed combined with expert testimony
that such quantity indicates an intent to deliver can be sufficient for a jury to infer
an intent to deliver.
48. Lesser-Included Offenses: Jury Instructions: Evidence. When the prosecution
has offered uncontroverted evidence on an element necessary for a conviction of
the greater crime but not necessary for the lesser offense, the defendant must offer
some evidence to dispute this issue if he or she wishes to have the benefit of a
lesser-offense instruction.
49. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing for
sufficiency of the evidence to sustain a conviction, 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.
50. Convictions: Evidence: Appeal and Error. regardless of whether the evidence is
direct, circumstantial, or a combination thereof, an appellate court, in reviewing a
criminal conviction, does not resolve conflicts in the evidence, pass on the cred-
ibility of witnesses, or reweigh the evidence.
51. Controlled Substances: Evidence: Circumstantial Evidence: Proof. Construc-
tive possession of an illegal substance may be proved by direct or circumstan-
tial evidence.
52. Criminal Law: Motor Vehicles: Evidence. A passenger’s mere presence in a
vehicle with contraband is insufficient to support a finding of joint possession.
53. Controlled Substances: Motor Vehicles: Evidence. Possession of an illegal
substance can be inferred from a vehicle passenger’s proximity to the sub-
stance or other circumstantial evidence that affirmatively links the passenger to
the substance.
54. ____: ____: ____. A passenger’s joint possession of a controlled substance found
in a vehicle can be established by evidence that (1) supports an inference that the
driver was involved in drug trafficking, as distinguished from possessing illegal
drugs for personal use; (2) shows the passenger acted suspiciously during a traffic
STATe v. DrAgANeSCU 	451
Cite as 276 Neb. 448

stop; and (3) shows the passenger was not a casual occupant but someone who had
been traveling a considerable distance with the driver.
55. Controlled Substances: Motor Vehicles: Evidence: Juries. A juror may reason-
ably infer that a driver with a possessory interest in a vehicle who is transporting
a large quantity of illegal drugs would not invite someone into his or her vehicle
who had no knowledge of the driver’s drug activities.
56. Controlled Substances: Intent: Circumstantial Evidence. Circumstantial evi-
dence may support a finding that a defendant intended to distribute, deliver, or
dispense a controlled substance.
57. ____: ____: ____. Circumstantial evidence to establish possession of a controlled
substance with intent to distribute or deliver may consist of several factors: the
quantity of the substance, the equipment and supplies found with it, the place it
was found, the manner of packaging, and the testimony of witnesses experienced
and knowledgeable in the field.
58. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an abuse of judi-
cial discretion.
59. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of the offense, and (8) the
violence involved in the commission of the crime.
Appeal from the District Court for Lancaster County: steven
d. burns, Judge. Affirmed.
Dennis r. Keefe, Lancaster County Public Defender, and
Matthew g. graff for appellant.
Jon Bruning, Attorney general, and erin e. Leuenberger
for appellee.
heAvicAn , 	c.J., 	W riGht , 	connolly , 	G errArd , 	stephAn ,
mccormAck , and miller -lermAn , JJ.
connolly , J.
I. SUMMArY
A jury convicted Ion Draganescu of possession of a controlled
substance with intent to deliver, a Class III felony. Although this
appeal presents numerous issues, we believe there are three
primary issues. First, did the Nebraska State Patrol have prob-
able cause to initially stop the vehicle in which Draganescu was
a passenger? Second, did the State Patrol have probable cause
to search the vehicle? Third, was an airline ticket stub, which
452 	276 NeBrASKA rePorTS

the State Patrol took from Draganescu’s pocket after his arrest,
admissible under the residual hearsay exception?
We spell out our holding with some specificity in the follow-
ing pages, but briefly stated, it is this: We hold that the State
Patrol did have probable cause to stop the vehicle. We further
hold that the State Patrol had probable cause to search the van
following a canine sniff. Finally, although the district court erred
in admitting the airline ticket stub under the residual hearsay
exception, we hold that this evidence was admissible as an
adopted statement. We affirm.
II. BACKgroUND
on March 27, 2006, Nebraska State Trooper Chris Bigsby
stopped a van on Interstate 80, just east of Lincoln. he stopped
the van because the driver was following a semi-truck too
closely. The driver was herbert Truesdale; Draganescu was the
passenger. While conducting an investigation incident to the
stop, Bigsby became suspicious of drug activity and requested
a canine unit. Following the canine sniff, troopers searched the
van and found 275 pounds of marijuana. The State charged
Draganescu with possession of a controlled substance with
intent to deliver.
Draganescu moved to suppress any evidence obtained from
the stop and search of his person and the van. he alleged that
state troopers searched the van without probable cause or rea-
sonable suspicion. The district court held two suppression hear-
ings. The first focused on whether Bigsby had probable cause
to stop the van; whether Bigsby had reasonable suspicion to
order a canine sniff; and whether the length of the detentions
was unreasonable. The second suppression hearing concerned
the reliability of Duke, the drug dog. Draganescu argued that
because Duke was unreliable, the State lacked probable cause
to search the van.
1. first suppression heArinG
(a) Initial Stop of the van
At the hearing, the State submitted a videotape from Bigsby’s
patrol car camera that shows the timeline of events. Bigsby
testified that while in a marked patrol car monitoring traffic on
STATe v. DrAgANeSCU 	453
Cite as 276 Neb. 448

Interstate 80 in Lincoln, he noticed the eastbound van in which
Draganescu was a passenger. he thought he saw Nevada plates
on the van. he testified that the van caught his eye because it
“[a]ppeared to be possibly a rental and it was from Nevada.
And I’ve had some success as far as Nevada plated vehicles and
contraband and rental vehicles.” he pulled onto the interstate to
observe the van and another vehicle.
Bigsby initially passed the van when he saw that the plates
were from Washington instead of Nevada. But as he was pass-
ing the semi-truck in front of the van, he saw the van moving
closer to the truck. From his rearview mirror, he saw the van
was following the truck about one car length behind it and
decided to stop the van. At 9:33 a.m., Bigsby stopped the van
and asked for a vehicle registration and licenses from Truesdale
and Draganescu. he intended to issue a warning ticket and asked
Truesdale to sit in the patrol car while he issued the ticket.
(b) Detainment Before Issuing Warning Ticket
Bigsby testified that as he approached the van, he observed
fast-food wrappers, trash, and pillows in the van. he described
the van as having a “lived-in” look. he stated that while he was
in the patrol car, the dispatcher informed him that the computer
that runs background checks was down. he asked Truesdale about
his travels and his criminal and driving history. Truesdale stated
that he had one previous arrest for driving under the influence
and another arrest because someone had possessed a gun while
in his vehicle. he said that he had flown to Seattle, Washington,
around March 2, 2006, and that Draganescu had flown to
California. he said that after he rented the van in Washington,
he went to Los Angeles, California, for a few days and then
met up with Draganescu in Las vegas, Nevada. he stated that
Draganescu had flown to Las vegas and that they stayed in Las
vegas for a couple of days in a hotel and then left on the previ-
ous Thursday or Friday. Truesdale gave Bigsby the rental agree-
ment for the van, which showed that Truesdale was overdue to
return the van.
Bigsby went to the van to get its vehicle identification number
and return Draganescu’s identification. he asked Draganescu
about his travels. Draganescu said that he worked for a transport
454 	276 NeBrASKA rePorTS

company in Detroit, Michigan, and had driven a truck to Seattle
for them, where he met Truesdale. he said that he and Truesdale
had left Seattle a couple of days ago and were driving straight
back to Michigan on Interstate 80, without mentioning Las
vegas. he stated that they had been sleeping in the van at truck-
stops on their way back. While Bigsby was returning to the
patrol car, he called for a canine unit.
At 9:58 a.m., the dispatcher reported that there were no out-
standing warrants and that Truesdale’s license was valid. The
dispatcher also reported that Draganescu had a drug-related
criminal history. Bigsby finished writing the warning ticket at
10:01 a.m.
(c) Detainment After Issuing Warning Ticket
After Bigsby issued the warning ticket, Truesdale started to
exit the patrol car. But Bigsby asked him if he could answer a
few more questions, and Truesdale agreed. Bigsby testified that
he asked Truesdale whether he would allow Bigsby to search the
van and whether he would mind waiting for a dog to “come out
and run around” the van. Truesdale refused consent. Bigsby then
told him that he was being detained. After other troopers arrived,
state troopers placed Draganescu in a different patrol car to wait
while they conducted a canine sniff.
At 10:16 a.m., the canine unit arrived. At 10:25 a.m., Nebraska
State Trooper Jeremy Dugger did a prestimulation ritual with
Duke. Dugger then took Duke around the vehicle three times.
After this deployment, Dugger took Duke away from the van
briefly. At 10:30 a.m., Dugger deployed Duke again. After tak-
ing Duke around the van two more times, Duke gave a final indi-
cation of drugs. At 10:32 a.m., Bigsby opened the van’s hatch
and discovered the drugs.
(d) District Court’s ruling
The district court found that there was probable cause to stop
the van. It also found a sufficient factual basis to create a rea-
sonable suspicion that Truesdale and Draganescu were involved
in a crime that was occurring or about to occur. It further
concluded that the detention for the traffic stop and the canine
sniff was reasonable in length. The court overruled the motion
to suppress.
STATe v. DrAgANeSCU 	455
Cite as 276 Neb. 448

2. second suppression heArinG reGArdinG
duke ’ s reliAbility
The second suppression hearing concerned Dugger’s han-
dling of Duke during the canine sniff. Draganescu argued that
Dugger’s mishandling of Duke made Duke’s indication of drugs
unreliable. Thus, he argued probable cause was lacking to con-
duct a search. regarding his qualifications, Dugger testified that
he had completed 8 weeks of canine training. he also stated
that Duke was one of the Patrol’s “most reliable and accurate
dogs” and had received very high certification scores in 2005
and 2006.
(a) Duke’s First Deployment
Dugger explained that he did a prestimulation ritual because
Duke was distracted. The ritual involved Dugger’s showing
Duke a sterile ball, acting suspiciously with the ball alongside
the van, and then putting the ball in his pants pocket when Duke
was not watching. Without the ball, Dugger then took Duke
around the van by his leash as he moved his other hand up and
down the van in the places that he wanted Duke to sniff. They
went around the van three times in this manner. Dugger stated
that even though Duke seemed distracted, he had almost imme-
diately alerted to the rear of the van. he described an “alert”
as a change in the dog’s body behavior that means the dog has
noticed the odor of drugs. In contrast, an “indication” of drugs is
the dog’s prescribed behavior of barking, whining, or scratching,
or a combination of these behaviors, to indicate the strongest
source of the odor.
(b) Duke Tries Again
After these three rounds, Dugger told Bigsby that although
Duke had alerted, the dog was distracted because of the rain and
was not sniffing properly. Dugger took Duke away briefly and
had another officer perform a prestimulation ritual with a dif-
ferent sterile toy. At 10:30 a.m., Dugger took Duke around the
van two more times. he testified that Duke was sharper during
this deployment because he was sniffing nasally with his mouth
closed. At the end of the second round, Duke jumped up onto
the rear bumper. Dugger testified that Duke scratched at the van,
giving a final indication of drugs.
456 	276 NeBrASKA rePorTS

(c) Defense expert opines That Duke’s Indication
of Drugs Was “Possibly” Contaminated
The court also received, over the State’s objections, an expert
report from a retired Florida police officer, Bobby g. Mutter.
Mutter had expertise with drug dogs. In his report, he stated that
he had reviewed Dugger’s deposition, Duke’s training and ser-
vice records, logs of Duke’s history, and two videotape record-
ings of the stop and search. he concluded that Duke was a well-
trained narcotics dog and had alerted to the rear of the van. But
he believed that Dugger “could very possibly have contaminated
this search by showing the canine an object prior to the search
and going to the vehicle with the object[,] thus, making the dog
think there was already drugs in the vehicle.”
The district court found that “[t]he evidence is uncontested
that [Dugger] did not take an object to the vehicle.” It therefore
overruled Draganescu’s motion to suppress “due to the handling
of the drug sniffing dog.”
3. drAGAnescu ’ s triAl
During Draganescu’s search incident to his arrest, troop-
ers found an airline ticket stub in his pocket. The ticket stub,
exhibit 20, was from U.S. Airways. It showed that Draganescu
had a seat on a March 23, 2006, flight from Los Angeles to Las
vegas. The court overruled Draganescu’s foundation, relevance,
and hearsay objections to exhibit 20. Bigsby testified that 275
pounds of marijuana were found in the van. he further testified
that the marijuana was worth $275,000 (or $1,000 a pound).
he stated that this amount was consistent with distribution, not
personal use. According to Bigsby, the State Patrol found no
fingerprints or DNA evidence linking Draganescu to the drugs.
Bigsby also stated that he did not smell marijuana in the van
before or after the arrest.
After the State rested, Draganescu moved to dismiss. The
court overruled the motion. At the jury instruction conference,
the court also refused Draganescu’s proposed jury instruction
No. 3. This instruction set out a lesser-included offense of pos-
session of more than 1 pound of marijuana. The jury returned
a guilty verdict. The district court sentenced Draganescu to
imprisonment for 5 to 11 years, with credit for time served. The
STATe v. DrAgANeSCU 	457
Cite as 276 Neb. 448

court acknowledged that Draganescu’s sentence was longer than
Truesdale’s sentence. But the court stated that it had reached its
determination because of Draganescu’s criminal history.
III. ASSIgNMeNTS oF error
Draganescu assigns, restated, that the district court erred in
(1) overruling Draganescu’s motion to suppress evidence that
state troopers seized while searching the van and admitting this
evidence at trial over his objections; (2) admitting exhibit 20,
an airline ticket stub, over Draganescu’s objections regarding
relevancy, hearsay, and foundation; (3) failing to instruct the
jury on the lesser-included offense of possession of marijuana;
(4) finding there was sufficient evidence to support a conviction;
and (5) imposing an excessive sentence.
Iv. ANALYSIS
1. motions to suppress
Draganescu argues that neither probable cause nor reasonable
suspicion supported the following three searches or seizures: (1)
the initial stop of the van; (2) his continued detention after the
initial stop; and (3) the search of the van.
(a) Standard of review
[1] In reviewing a trial court’s ruling on a motion to suppress
based on the Fourth Amendment, we will uphold its findings of
fact unless they are clearly erroneous.1 But we review de novo
the trial court’s ultimate determinations of reasonable suspicion
to conduct an investigatory stop and probable cause to perform
a warrantless search.2
(b) Probable Cause to Stop the van
Draganescu concedes that we have held traffic violations, no
matter how minor, create probable cause to stop the driver of
a vehicle.3 But he contends that the standard for determining
that a driver is following a vehicle too closely is subjective. he
1 See State v. Royer, ante p. 173, 753 N.W.2d 333 (2008).
2 See id.
3 See, e.g., State v. Louthan, 275 Neb. 101, 744 N.W.2d 454 (2008).
458 	276 NeBrASKA rePorTS

also contends that the State failed to prove Truesdale violated
the governing statute. he argues that because the standard is
subjective, law enforcement officers could always rely on it
to stop drivers for inarticulate hunches. he further argues that
Bigsby admitted at trial that the real reason for the stop was his
hunch that the passengers were involved in transporting con-
traband. he asks us to hold that under these circumstances, an
officer’s stop of a vehicle for this offense violates an individual’s
Fourth Amendment right to be free from unreasonable searches
and seizures.
[2-4] The Fourth Amendment to the U.S. Constitution and
Neb. Const. art. I, § 7, guarantee “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures . . . .” “Temporary detention
of individuals during the stop of an automobile by the police,
even if only for a brief period and for a limited purpose, con-
stitutes a ‘seizure’ of ‘persons’ within the meaning of this pro-
vision.”4 Further, “‘[a]n individual operating or traveling in an
automobile does not lose all reasonable expectation of privacy
simply because the automobile and its use are subject to gov-
ernment regulation.’”5 But in determining whether the govern-
ment’s intrusion into a motorist’s Fourth Amendment interests
was reasonable,6 the question is not whether the officer issued
a citation for a traffic violation or whether the State ultimately
proved the violation. Instead, a stop of a vehicle is objectively
reasonable when the officer has probable cause to believe that a
traffic violation has occurred.7
4 Whren v. United States, 517 U.S. 806, 809-10, 116 S. Ct. 1769, 135 L. ed.
2d 89 (1996). Accord State v. Burdette, 259 Neb. 679, 611 N.W.2d 615
(2000).
5 State v. Childs, 242 Neb. 426, 432, 495 N.W.2d 475, 479 (1993), quot-
ing Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. ed. 2d 660
(1979).
6 See State v. Davidson, 260 Neb. 417, 618 N.W.2d 418 (2000).
7 Whren, supra note 4; State v. Dallmann, 260 Neb. 937, 621 N.W.2d 86
(2000).
STATe v. DrAgANeSCU 	459
Cite as 276 Neb. 448

Draganescu argues that the rule he advocates is consistent
with our holding in State v. Childs.8 But he ignores a criti-
cal distinction. There, a police officer stopped the motorist to
check his vehicle registration because of his in-transit tags. The
motorist was not driving suspiciously and had not violated a
statute. his vehicle’s in-transit tags were in compliance with the
governing statutes. We held that “a constitutional investigatory
stop cannot be made solely to check a motorist’s documenta-
tion when the vehicle is properly displaying in-transit tags.”9 In
Childs, the officer lacked outward observable signs that would
support probable cause to believe that the driver was violating
any traffic regulation.10
In contrast, Bigsby had probable cause to stop the vehicle
for a traffic violation—following too closely. Neb. rev. Stat.
§ 60-6,140(1) (reissue 2004) provides: “The driver of a motor
vehicle shall not follow another vehicle more closely than is
reasonable and prudent, and such driver shall have due regard
for the speed of such vehicles and the traffic upon and the con-
dition of the roadway.” But we need not analyze Draganescu’s
argument that the “reasonable and prudent” standard is too
indefinite or subjective because he has not challenged the statute
for vagueness. Moreover, Bigsby testified that he used an objec-
tive standard for determining whether the van was following the
truck too closely: one car length for every 10 m.p.h. of speed.
Bigsby further stated that he observed the van following one car
length behind the semi-truck while both vehicles were traveling
over 70 m.p.h. in the rain.
[5,6] Because this evidence showed Bigsby had probable
cause to believe a traffic violation had occurred, the stop was
objectively reasonable. Although Draganescu disputes Bigsby’s
motivation for stopping the van, the issue is irrelevant. Both the
U.S. Supreme Court and this court have rejected “pretextual”
arguments regarding routine traffic stops. “Subjective intentions
8 Childs, supra note 5.
9 State v. Bowers, 250 Neb. 151, 160, 548 N.W.2d 725, 731 (1996) (distin-
guishing Childs, supra note 5).
10 See, State v. Crom, 222 Neb. 273, 383 N.W.2d 461 (1986), citing Prouse,
supra note 5.
460 	276 NeBrASKA rePorTS

play no role in ordinary, probable-cause Fourth Amendment
analysis.”11 If an officer has probable cause to stop a violator,
the stop is objectively reasonable and any ulterior motivation
is irrelevant.12 Draganescu’s argument that the initial stop was
unsupported by probable cause is without merit.
(c) reasonable, Articulable Suspicion to Justify
Draganescu’s Continued Detention
Draganescu does not appeal the district court’s decision that
the length of his detention was reasonable. Instead, he contends
that Bigsby did not have reasonable suspicion to enlarge the
scope of the traffic stop and detain him for a canine sniff after
Truesdale attempted to exit the patrol car.
[7,8] To detain a motorist for further investigation past the
time reasonably necessary to conduct a routine investigation
incident to a traffic stop,13 an officer must have a reasonable,
articulable suspicion that the motorist is involved in criminal
activity unrelated to the traffic violation.14 reasonable suspicion
for further detention must exist after the point that an officer
issues a citation.15
[9-11] Whether a police officer has a reasonable suspicion
based on sufficient articulable facts depends on the totality of
the circumstances.16 Courts must determine whether reason-
able suspicion exists on a case-by-case basis.17 reasonable
suspicion entails some minimal level of objective justifica-
tion for detention. It is something more than an inchoate and
11 Whren, supra note 4, 517 U.S. at 813.
12 See, Dallmann, supra note 7; State v. Bartholomew, 258 Neb. 174, 602
N.W.2d 510 (1999).
13 See State v. Voichahoske, 271 Neb. 64, 709 N.W.2d 659 (2006).
14 See, Louthan, supra note 3; Voichahoske, supra note 13; State v. Anderson,
258 Neb. 627, 605 N.W.2d 124 (2000), disapproved in part on other
grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
15 See, State v. Lee, 265 Neb. 663, 658 N.W.2d 669 (2003); Anderson, supra
note 14.
16 Louthan, supra note 3.
17 See id.
STATe v. DrAgANeSCU 	461
Cite as 276 Neb. 448

unparticularized hunch—but less than the level of suspicion
required for probable cause.18
regarding an officer’s reasonable suspicion, we have previ-
ously considered factors similar to those present in this case.
Those factors included an officer’s testimony that (1) the motor-
ist had not taken the most direct route from the occupants’ stated
point of origin to their stated destination19 and (2) the driver or
passengers gave implausible or contradictory answers regarding
their travel plans.20 And, although of limited usefulness, a court
may consider, with other factors, evidence that the occupants
exhibited nervousness.21 Finally, a court can consider, as part of
the totality of the circumstances, the officer’s knowledge of a
person’s drug-related criminal history.22
[12] Moreover, factors that would independently be consistent
with innocent activities may nonetheless amount to reason-
able suspicion when considered collectively.23 For example,
evidence that a motorist is returning to his or her home state in
a vehicle rented from another state is not inherently indicative
of drug trafficking when the officer has no reason to believe the
motorist’s explanation is untrue.24 But a court may nonetheless
consider this factor when combined with other indicia that drug
activity may be occurring—particularly the occupants’ contra-
dictory answers regarding their travel purpose and plans25 or an
occupant’s previous drug-related convictions.26
here, the rental agreement showed that Truesdale should have
returned the van to Seattle 5 days before the traffic stop. his
18 Id.
19 Voichahoske, supra note 13.
20 See, id.; State v. Verling, 269 Neb. 610, 694 N.W.2d 632 (2005); Lee, supra
note 15.
21 Verling, supra note 20; Lee, supra note 15.
22 Lee, supra note 15. Accord, U.S. v. Finke, 85 F.3d 1275 (7th Cir. 1996). See,
also, U.S. v. McRae, 81 F.3d 1528 (10th Cir. 1996).
23 See Voichahoske, supra note 13.
24 See U.S. v. Beck, 140 F.3d 1129 (8th Cir. 1998).
25 See Verling, supra note 20.
26 See Finke, supra note 22.
462 	276 NeBrASKA rePorTS

explanation to Bigsby that he had obtained a 3-day extension
did not explain why the van was in Nebraska 2 days after it was
due for return in Washington.27 More important, Draganescu’s
statement that he and Truesdale were traveling straight back to
Michigan from Washington was inconsistent with their presence
on Interstate 80 in Nebraska. And, most telling, Truesdale and
Draganescu gave contradictory answers about their travel plans.
Finally, Draganescu’s background check revealed a drug-related
criminal history. Considering the totality of these circumstances,
we conclude that these facts, when viewed from the standpoint
of an objectively reasonable police officer,28 created a reason-
able, articulable suspicion. The court did not err in conclud-
ing that Bigsby had a reasonable, articulable suspicion that
Truesdale and Draganescu were involved in unlawful activity at
the time Bigsby issued the warning citation.
(d) Probable Cause to Search the van
Draganescu argues that probable cause to search the van
hinged on Duke’s reliability. he claims that the district court
clearly erred in finding that Dugger did not approach the van
with an object in his hand. he also claims that the videotape
clearly shows Dugger did not properly handle Duke during the
canine sniff.
[13] generally, the factors supporting an officer’s reasonable
suspicion of illegal drug activity when coupled with a well-
trained dog’s positive indication of drugs in a vehicle will give
the officer probable cause to search the vehicle.29 Draganescu’s
expert agreed that the evidence showed Duke was a well-trained
drug dog and had alerted to the rear of the van.
Draganescu, however, contends that the court did not need
an expert to conclude that the canine sniff was improperly con-
ducted for two reasons. First, Duke scratched the rear of the van
only after Dugger placed his hands there. Second, it took Duke
five trips around the van before he indicated drugs. But Dugger
explained that Duke was distracted during the first deployment
27 See McRae, supra note 22.
28 See State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006).
29 See Verling, supra note 20.
STATe v. DrAgANeSCU 	463
Cite as 276 Neb. 448

because of the rain. The videotape showed that Duke scratched
the van’s rear door, indicating drugs, on his second trip around
the van during the second deployment. Dugger further explained
that he moves his hands around a vehicle to direct the dog to
a place he wants it to sniff, and he did this throughout both
deployments. Without countervailing evidence, Dugger’s train-
ing and experience and Duke’s training and past reliability sat-
isfy us that the procedures used did not improperly cause Duke
to indicate drugs.
We agree with Draganescu’s argument that the district court
clearly erred in finding that Dugger did not take an object
to the van. The court apparently focused only on the second
deployment. 	But 	the 	videotape 	shows 	that 	before 	Duke’s
first deployment, Dugger displayed a ball to Duke, acted sus-
piciously with the ball around the van while the dog was
watching, and then showed Duke a clean hand. Again, how-
ever, Dugger testified that this prestimulation ritual was a part
of Duke’s training and that he received the same training that
many states use. The statements in Draganescu’s expert’s report
are inconclusive. Mutter stated that Dugger “could very pos-
sibly have contaminated the search” by using this ritual during
an actual deployment because dogs are initially trained to alert
by using the same method.
In an unpublished opinion, the Nebraska Court of Appeals
considered this same expert’s report in reviewing Truesdale’s
joint suppression hearing.30 It concluded that the expert’s critical
comments were mere conjecture. We agree that Mutter’s state-
ments in his report did not undermine the district court’s deter-
mination that Dugger’s handling of Duke had not contaminated
the canine sniff. We conclude in our de novo review that the
state troopers had probable cause to search the van.
2. A dmissibility of A irline ticket stub
The court admitted the airline ticket stub, exhibit 20. This
exhibit showed that Draganescu had a seat on a March 23,
2006, flight from Los Angeles to Las vegas. The court overruled
30 See State v. Truesdale, No. A-07-715, 2008 WL 582530 (Neb. App. March
4, 2008) (selected for posting to court Web site).
464 	276 NeBrASKA rePorTS

Draganescu’s objections and ruled that (1) the evidence was
relevant; (2) it was properly authenticated by testimony that
the ticket stub was found on Draganescu’s person after he was
arrested; and (3) it was admissible under the residual hear-
say exception. Draganescu argues that the court erred in all
three rulings.
(a) Standard of review
[14,15] In proceedings where the Nebraska evidence rules
apply, the admissibility of evidence is controlled by the Nebraska
evidence rules; judicial discretion is involved only when the
rules make discretion a factor in determining admissibility.31
Where the Nebraska evidence rules commit the evidentiary
question at issue to the discretion of the trial court, we review
the admissibility of evidence for an abuse of discretion.32
(b) relevance of exhibit 20
Draganescu contends that exhibit 20 was not relevant because
it was not probative of any material element of the crime. The
State counters that exhibit 20 showed Draganescu was lying
to Bigsby when he stated that he was only in the van to catch
a ride home from Washington. It contends that exhibit 20 was
therefore relevant to show Draganescu’s real purpose for being
in the van was his possession of the marijuana and his intent to
deliver it.
(i) Standard of Review
[16-18] The exercise of judicial discretion is implicit in
determining the relevance of evidence. And a trial court’s deci-
sion regarding relevance will not be reversed absent an abuse of
discretion.33 evidence is relevant if it tends in any degree to alter
the probability of a material fact.34 relevancy requires only that
the degree of probativeness be something more than nothing.35
31 State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007).
32 See State v. Stark, 272 Neb. 89, 718 N.W.2d 509 (2006).
33 See State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
34 State v. Jackson, 275 Neb. 434, 747 N.W.2d 418 (2008).
35 Id.
STATe v. DrAgANeSCU 	465
Cite as 276 Neb. 448

(ii) Analysis
[19-21] exhibit 20 is relevant because a juror could infer
from this circumstantial evidence that Draganescu lied about
traveling with Truesdale from Washington to dissociate himself
from their purpose in California and Nevada—illegal drug activ-
ity. evidence of a defendant’s consciousness of guilt is relevant
as a circumstance supporting an inference that the defendant is
guilty of the crime charged.36 When the evidence is sufficient to
justify an inference that the defendant acted with consciousness
of guilt, the fact finder can consider such evidence even if the
conduct could be explained in another way.37 Many courts have
held that, unlike general denials of guilt, a defendant’s exculpa-
tory statements of fact that are proved to be false at trial are
probative of the defendant’s consciousness of guilt.38 We agree.
We conclude that the district court did not abuse its discretion
in determining that evidence showing Draganescu made false
exculpatory statements is relevant to his guilt.
(c) Admissibility of exhibit 20 Under
Nebraska’s hearsay rules
Draganescu contends that exhibit 20 was hearsay and was
not admissible under the residual hearsay exception because the
State did not show that the declarant was unavailable. The State
does not contend that exhibit 20 was admissible under the resid-
ual hearsay exception. Instead, it contends that the ticket stub
was not a hearsay statement for two reasons: (1) A computer
produced it, and (2) Draganescu adopted the statement through
his possession of it.
Before analyzing the hearsay issue, we explain why we
are not first analyzing a preliminary question—authentication.
36 See, State v. Kramer, 238 Neb. 252, 469 N.W.2d 785 (1991); State v.
Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991).
37 See, State v. Jacob, 253 Neb. 950, 574 N.W.2d 117 (1998); State v. Curlile,
11 Neb. App. 52, 642 N.W.2d 517 (2002).
38 See, e.g., U.S. v. Glenn, 312 F.3d 58 (2d Cir. 2002); United States v.
McDougald, 650 F.2d 532 (4th Cir. 1981); United States v. Merrill, 484
F.2d 168 (8th Cir. 1973); U.S. v. Isaac-Sigala, 448 F.3d 1206 (10th Cir.
2006); People v. Hughes, 27 Cal. 4th 287, 39 P.3d 432, 116 Cal. rptr. 2d
401 (2002); Perry v. State, 344 Md. 204, 686 A.2d 274 (1996).
466 	276 NeBrASKA rePorTS

Neb. evid. r. 104(1),39 like its federal counterpart,40 requires
a trial court to determine preliminary questions of admissibil-
ity. Unlike its federal counterpart, however, Nebraska’s rule
104(1) does not include this final sentence: “In making its
determination [the court] is not bound by the rules of evidence
except those with respect to privileges.”41 Because of this pro-
vision, federal courts frequently decide authentication issues
before hearsay issues. Those courts reason that “[a]uthenticity
and admissibility, though often closely related, are separate
inquiries. The mere fact that a document is authentic does
not necessarily mean that it is admissible in evidence.”42 But
Nebraska’s rule 104 does not permit that order of analysis. We
must first determine whether the district court properly ruled
that exhibit 20 was not hearsay before considering whether the
document’s contents could support the court’s ruling that it was
properly authenticated.
(i) Standard of Review
[22-24] We pause here to clarify our standard of review for
hearsay rulings. hearsay is not admissible except as provided
by the Nebraska evidence rules.43 In State v. Jacob,44 we held
that a trial judge does not have discretion to admit inadmissible
hearsay statements. So we overruled cases applying an abuse
of discretion standard to review rulings under the excited utter-
ances exception to hearsay. Shortly after issuing this opinion,
however, we implicitly carved out an exception for the residual
hearsay exception. We did this because of the factors a trial
court must weigh in deciding whether to admit evidence under
this exception.45 Thus, we have applied an abuse of discretion
39 Neb. rev. Stat. § 27-104(1) (reissue 1995).
40 Fed. r. evid. 104(a).
41 Id.
42 U.S. v. Paulino, 13 F.3d 20, 24 (1st Cir. 1994). Accord U.S. v. Chu Kong Yin,
935 F.2d 990 (9th Cir. 1991).
43 State v. Gutierrez, 272 Neb. 995, 726 N.W.2d 542 (2007).
44 See State v. Jacob, 242 Neb. 176, 494 N.W.2d 109 (1993).
45 State v. Toney, 243 Neb. 237, 498 N.W.2d 544 (1993), citing Huff v. White
Motor Corp., 609 F.2d 286 (7th Cir. 1979).
STATe v. DrAgANeSCU 	467
Cite as 276 Neb. 448

standard to review hearsay rulings under the residual hear-
say exception.46
[25,26] In three other cases, we have stated that we will
uphold a court’s application of the Nebraska evidence rules
unless clearly erroneous when judicial discretion is not a factor
in assessing admissibility.47 In these cases, however, we have
not distinguished between findings of fact and conclusions of
law. “Clearly erroneous” is the standard we normally apply for
reviewing a district court’s underlying factual findings when the
issue on appeal presents a mixed question of fact and law.48 But
when judicial discretion is not a factor, whether the underlying
facts satisfy the legal rules governing the admissibility of such
evidence is a question of law, subject to de novo review.49 This
rule is consistent with other courts’ de novo review of a trial
court’s application of hearsay rules.50 Thus, we adopt the follow-
ing standard of review for hearsay rulings: Apart from rulings
under the residual hearsay exception, we review for clear error
the factual findings underpinning a trial court’s hearsay ruling
and review de novo the court’s ultimate determination to admit
evidence over a hearsay objection.
(ii) Analysis
[27] We have determined that exhibit 20 was relevant to
prove that Draganescu lied to Bigsby when he stated that he
and Truesdale were traveling straight back to Michigan from
Washington. Thus, the airline ticket stub was a written assertion
46 See, e.g., State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006); State v.
Garner, 260 Neb. 41, 614 N.W.2d 319 (2000).
47 See, State v. Neal, 265 Neb. 693, 658 N.W.2d 694 (2003); State v. Rieger,
260 Neb. 519, 618 N.W.2d 619 (2000); State v. Canbaz, 259 Neb. 583, 611
N.W.2d 395 (2000).
48 See, e.g., State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
49 See, e.g., Eberly, supra note 28. See, also, U.S. v. Salgado, 250 F.3d 438
(6th Cir. 2001).
50 See, e.g., U.S. v. Gaitan-Acevedo, 148 F.3d 577 (6th Cir. 1998); Zacarias v.
U.S., 884 A.2d 83 (D.C. 2005); Burkey v. State, 922 So. 2d 1033 (Fla. App.
2006); State v. Newell, 710 N.W.2d 6 (Iowa 2006); State v. White, 804 A.2d
1146 (Me. 2002); Bernadyn v. State, 390 Md. 1, 887 A.2d 602 (2005); State
v. Schiefelbein, 230 S.W.3d 88 (Tenn. Crim. App. 2007).
468 	276 NeBrASKA rePorTS

offered to prove the truth of the matter asserted, i.e., that
Draganescu had a reserved seat on a flight from Los Angeles
to Las vegas on March 23, 2006. exhibit 20 was intended to
support a finding that contrary to his statements to Bigsby,
Draganescu had been in California just before driving through
Nebraska. The State does not contend otherwise. A written
assertion is a statement under Neb. evid. r. 801(1).51 Because it
was a statement offered to prove the truth of the matter asserted,
it is hearsay under rule 801(3) unless it falls within an exception
or exclusion under the hearsay rules.
[28] We reject the State’s assertion that the document was not
hearsay because a computer produced it. Computerized print-
outs that are merely the visual counterparts to routine electronic
business records are usually hearsay, but they can be admissible
under the business records exception.52 here, the State did not
attempt to lay foundation for the business records exception.
The court, however, admitted exhibit 20 under the residual hear-
say exception.
[29] We agree with Draganescu that the district court erred in
admitting exhibit 20 under the residual hearsay exception. Neb.
evid. r. 804(2)(e)53 provides in part:
A statement may not be admitted under this exception
unless the proponent of it makes known to the adverse
party, sufficiently in advance of the trial or hearing to pro-
vide the adverse party with a fair opportunity to prepare to
meet it, his intention to offer the statement and the particu-
lars of it, including the name and address of the declarant.
An adverse party’s knowledge of a statement is not enough to sat-
isfy the notice requirement of rule 804(2)(e).54 The proponent of
the evidence must provide notice before trial to the adverse party
of his or her intentions to use the statement to take advantage of
the residual hearsay exception under rule 804(2)(e).55
51 Neb. rev. Stat. § 27-801(1) (reissue 1995).
52 See State v. Robinson, 272 Neb. 582, 724 N.W.2d 35 (2006).
53 Neb. rev. Stat. § 27-804(2)(e) (reissue 1995).
54 See Robinson, supra note 46.
55 Id. See, also, State v. Castor, 262 Neb. 423, 632 N.W.2d 298 (2001).
STATe v. DrAgANeSCU 	469
Cite as 276 Neb. 448

[30] The 	record 	fails 	to 	show 	that 	the 	State 	provided
Draganescu with advance notice of its intent to use exhibit 20.
The first mention in the record of the State’s intent to use exhibit
20 is during his trial. The court’s admission of the evidence
under this exception was error. But where the record adequately
demonstrates that the decision of a trial court is correct—
although such correctness is based on a ground or reason differ-
ent from that assigned by the trial court—an appellate court will
affirm.56 We conclude that under these circumstances, exhibit 20
was admissible as an adopted statement. We note that when the
prevailing party has laid sufficient foundation for the application
of another rule, federal appellate courts will similarly consider
whether the evidence was admissible under that rule for the
same purpose—the truth of the matter asserted.57
[31] Although a party on appeal may not assert a different
ground for an objection to the admission of evidence than was
offered to the trial court,58 the considerations are different when
it was unnecessary for the prevailing party to raise an alternative
ground for admission to the trial court.59 We agree with the fed-
eral courts of appeals that hold an appellate court can consider
whether the record clearly shows an exhibit was admissible for
the truth of the matter asserted under a different rule from the
one applied by the trial court when both parties had a fair oppor-
tunity to develop the record on the underlying facts.
[32,33] As noted, we conclude that exhibit 20 was admis-
sible as an adopted statement. rule 801(4)(b) excludes a state-
ment from the definition of hearsay if it is “offered against a
party and is . . . (ii) a statement of which he has manifested
his adoption or belief in its truth.” When a Nebraska evidence
rule is substantially similar to a corresponding federal rule
56 State v. Marshall, 269 Neb. 56, 690 N.W.2d 593 (2005).
57 See, e.g., Paulino, supra note 42; U.S. v. Knox, 124 F.3d 1360 (10th Cir.
1997); U.S. v. Williams, 837 F.2d 1009 (11th Cir. 1988). See, also, United
States v. Rosenstein, 474 F.2d 705 (2d Cir. 1973) (distinguishing U.S.
Supreme Court decisions).
58 See Robinson, supra note 52.
59 See United States v. Pugliese, 712 F.2d 1574 (2d Cir. 1983). See, also, Blum
v. Bacon, 457 U.S. 132, 102 S. Ct. 2355, 72 L. ed. 2d 728 (1982).
470 	276 NeBrASKA rePorTS

of evidence, Nebraska courts may look to federal decisions
interpreting the corresponding federal rule for guidance in con-
struing the Nebraska rule.60 Under the federal counterpart to
Nebraska’s rule 801(4)(b)(ii), a party’s possession of a written
statement can be an adoption of what its contents reveal under
circumstances that tie the party to the document in a meaning-
ful way.61
For example, in U.S. v. Paulino,62 the First Circuit affirmed
the trial court’s admission of a receipt for a postal service money
order. Police found the receipt during the search of an uninhab-
ited apartment used as a drug distribution outlet. The receipt
bore the defendant’s name and the apartment’s address. It also
included a notation that the money order was for the preced-
ing month’s rent. There was no testimony from the landlord or
building management. The defendant challenged the admission
of the evidence on authentication and hearsay grounds.
The First Circuit reasoned that in addition to possession, other
circumstances tied the defendant to the document. The court
noted that the document bore the defendant’s name and that he
had a key to the apartment, had been seen there, and was privy
to the criminal enterprise. These circumstances were sufficient
to permit a finding that he had “possessed and adopted” the
document.63 The Ninth Circuit similarly held that a motel receipt
found on a defendant’s person after his arrest was an adopted
admission.64 Finally, the Sixth Circuit held that airline tickets
found in the possession of the defendants were admissible as
adoptive statements.65
60 State v. Morrow, 273 Neb. 592, 731 N.W.2d 558 (2007), disapproved in part
on other grounds, McCulloch, supra note 14.
61 Paulino, supra note 42, citing United States v. Ospina, 739 F.2d 448 (9th
Cir. 1984). See, also, Annot., 156 A.L.r. Fed. 217 (1999).
62 Paulino, supra note 42.
63 Id. at 24.
64 See Ospina, supra note 61. See, also, U.S. v. Merritt, Nos. 96-4149,
96-4177, 96-4196, 1998 WL 196614 (4th Cir. Apr. 22, 1998) (unpublished
disposition listed in table of “Decisions Without Published opinions” at 145
F.3d 1327 (4th Cir. 1998)).
65 United States v. Marino, 658 F.2d 1120 (6th Cir. 1981).
STATe v. DrAgANeSCU 	471
Cite as 276 Neb. 448

Similarly here, exhibit 20 bore Draganescu’s name and was
not the type of document that a person would have had in his
possession if it were not his own. Further, the evidence was con-
sistent with Truesdale’s statement that Draganescu had flown to
Las vegas. We conclude that the circumstances are sufficient to
show that Draganescu adopted the written statement by his pos-
session of it. exhibit 20 was not hearsay.
(d) Authentication of exhibit 20
Authentication or identification of evidence is a condition
precedent to its admission and is satisfied by evidence suffi-
cient to prove that the evidence is what the proponent claims.66
Draganescu does not contend that the State failed to establish a
chain of custody showing that exhibit 20 is the document state
troopers took from his pocket when he was arrested. Instead,
he contends that Bigsby’s testimony was insufficient foundation
because Bigsby did not have personal knowledge that exhibit
20 is what the State claims, i.e., an airline ticket stub. The State
contends that exhibit 20 was authenticated by its appearance,
contents, substance, internal patterns, or other distinctive char-
acteristics under Neb. evid. r. 901(2)(d).67
(i) Standard of Review
[34-36] A court must determine whether there is sufficient
foundation evidence for the admission of physical evidence on
a case-by-case basis.68 Because authentication rulings are nec-
essarily fact specific, a trial court has discretion to determine
whether evidence has been properly authenticated.69 We review a
trial court’s ruling on authentication for abuse of discretion.70
66 Neb. evid. r. 901(1), Neb. rev. Stat. § 27-901(1) (reissue 1995).
67 Id.
68 See State v. Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005).
69 See id. See, also, U.S. v. Alicea-Cardoza, 132 F.3d 1 (1st Cir. 1997).
70 See State v. Huffman, 181 Neb. 356, 148 N.W.2d 321 (1967). See, also,
5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal evidence
§ 901.02[4] (Joseph M. McLaughlin ed., 2d ed. 2008).
472 	276 NeBrASKA rePorTS

(ii) Analysis
[37-39] rule 901 does not impose a high hurdle for authenti-
cation or identification.71 A proponent of evidence is not required
to conclusively prove the genuineness of the evidence or to
rule out all possibilities inconsistent with authenticity.72 If the
proponent’s showing is sufficient to support a finding that the
evidence is what it purports to be, the proponent has satisfied the
requirement of rule 901(1).73
[40,41] A proponent may authenticate a document under rule
901(2)(a) by the testimony of someone with personal knowledge
that it is what it is claimed to be, such as a person familiar with
its contents.74 But that is not the exclusive means. Under rule
901(2)(d), a proponent may authenticate a document by cir-
cumstantial evidence, or its “[a]ppearance, contents, substance,
internal patterns, or other distinctive characteristics, taken in
conjunction with circumstances.”75
Courts have recognized distinctive labels and brands as prima
facie evidence of ownership or origin.76 Neb. evid. r. 902(7)77
specifically includes as self-authenticating “[i]nscriptions, signs,
tags, or labels purporting to have been affixed in the course of
business and indicating ownership, control or origin.” In this
case, exhibit 20 bears the airline’s distinctive logotype on both
sides and its contact information. exhibit 20’s contents iden-
tify the passenger as Draganescu. They also provide the typi-
cal flight information found on all airline tickets or boarding
71 See Anglemyer, supra note 68.
72 See id.
73 See id. See, also, Alicea-Cardoza, supra note 69; U.S. v. Ruggiero, 928
F.2d 1289 (2d Cir. 1991), citing 5 Jack B. Weinstein & Margaret A. Berger,
Weinstein’s evidence ¶ 901(a)[01] (1990).
74 State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).
75 See, U.S. v. Reilly, 33 F.3d 1396 (3d Cir. 1994); Anglemyer, supra note 68,
quoting 28 U.S.C. app. rule 901 (2000).
76 See, Los Angeles News Service v. CBS Broadcasting, Inc., 305 F.3d 924 (9th
Cir. 2002), amended on other grounds 313 F.3d 1093; State v. Rines, 269
A.2d 9 (Me. 1970). See, also, 2 McCormick on evidence § 229.1 (Kenneth
S. Broun et al. eds., 6th ed. 2006).
77 Neb. rev. Stat. § 27-902(7) (reissue 1995).
STATe v. DrAgANeSCU 	473
Cite as 276 Neb. 448

passes. The information includes the date of flight, gate and
seat numbers, boarding and departure times, and departure and
arrival cities.
We conclude that the information contained in exhibit 20
supported a finding that it was what it purported to be: the
tear-off portion of an airline ticket or boarding pass. A defend-
ant challenging the “type” of document the State produces
may refute the obvious inference. Normally, external evidence
would be required to authenticate the contents of a ticket that
is produced to prove that its contents are true. here, how-
ever, the normal foundation requirements to ensure reliability
are lessened because state troopers found the ticket stub on
Draganescu’s person.78 We conclude that the contents of exhibit
20 and Draganescu’s possession of it were sufficient to support
a finding that Draganescu flew from Los Angeles to Las vegas
on March 23, 2006. Under the totality of the circumstances, we
are satisfied that the district court did not abuse its discretion in
admitting the evidence.
3. instruction on lesser -included offense
of simple possession
The court instructed the jury that it could return a verdict of
not guilty or “guilty of Manufacture, Distribution, Delivery, or
Dispensing a Controlled Substance.” The court also instructed
the jury, restated and condensed, that the State must prove
beyond a reasonable doubt that Draganescu had knowingly or
intentionally (1) possessed marijuana with the intent to distribute
or deliver it or (2) aided and abetted another to possess mari-
juana with the intent to distribute or deliver it.79
Draganescu contends that the district court erred in failing
to instruct the jury on simple possession. relying on a Court
of Appeals’ decision,80 Draganescu contends that possession of
78 See, Paulino, supra note 42; U.S. v. Kandiel, 865 F.2d 967 (8th Cir. 1989);
U.S. v. Clabaugh, 589 F.2d 1019 (9th Cir. 1979). See, also, Burgess v.
Premier Corp., 727 F.2d 826 (9th Cir. 1984); 2 McCormick on evidence,
supra note 76, § 226.
79 See State v. Contreras, 268 Neb. 797, 688 N.W.2d 580 (2004).
80 See State v. Malone, 4 Neb. App. 904, 552 N.W.2d 772 (1996).
474 	276 NeBrASKA rePorTS

marijuana over 1 pound is a lesser-included offense of posses-
sion of marijuana with intent to deliver, regardless of the weight
of the marijuana possessed. he further contends that the evi-
dence adduced at his trial provided a rational basis for a juror to
acquit him of possession with intent to deliver and convict him
of simple possession.
(a) Standard of review
[42-44] Whether a crime is a lesser-included offense is
determined by a statutory elements approach and is a ques-
tion of law.81 Whether jury instructions given by a trial court
are correct is a question of law.82 When reviewing questions
of law, we resolve the questions independently of the lower
court’s conclusions.83
(b) Analysis
[45,46] 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.84 To determine whether one statutory offense is a lesser-
included offense of the greater, Nebraska courts look to the ele-
ments of the crime and not to the facts of the case.85
In looking to the elements, Neb. rev. Stat. § 28-416(1)
(Cum. Supp. 2006) provides in part: “except as authorized by
the Uniform Controlled Substances Act, it shall be unlawful
for any person knowingly or intentionally: (a) To manufacture,
distribute, deliver, dispense, or possess with intent to manu-
facture, distribute, deliver, or dispense a controlled substance.”
81 State v. Blair, 272 Neb. 951, 726 N.W.2d 185 (2007); State v. Molina, 271
Neb. 488, 713 N.W.2d 412 (2006).
82 Molina, supra note 81.
83 See State v. Clapper, 273 Neb. 750, 732 N.W.2d 657 (2007).
84 Blair, supra note 81; Molina, supra note 81.
85 See, Molina, supra note 81; State v. Williams, 243 Neb. 959, 503 N.W.2d
561 (1993).
STATe v. DrAgANeSCU 	475
Cite as 276 Neb. 448

Marijuana is a Schedule I controlled substance.86 As relevant here,
§ 28-416(1)(a) criminalizes the act of knowingly or intentionally
possessing marijuana with the intent to distribute or deliver it.
For simple possession, § 28-416(12) provides: “Any person
knowingly or intentionally possessing marijuana weighing more
than one pound shall be guilty of a Class Iv felony.”
This court has previously held that possession of a controlled
substance is a lesser-included offense of distribution of the con-
trolled substance.87 The Nebraska Court of Appeals has specifi-
cally held that possession of marijuana weighing more than 1
pound is a lesser-included offense of possession with intent to
deliver the marijuana.88 The State does not dispute this point.
The issue here is whether the evidence provided a rational basis
for acquitting Draganescu of the greater offense and convicting
him of the lesser offense.
Draganescu argues that the jury could have believed that he
was simply catching a ride home with Truesdale and that he was
not involved in the distribution or delivery of marijuana, even
if he was aware of its presence in the van. The State contends
that because of the quantity of marijuana found in the van, a
jury could not have rationally found that Draganescu possessed
the marijuana without also finding that he possessed it with the
intent to deliver or distribute.
Draganescu’s argument that the jury could have found he
only knew there was marijuana in the van is an argument for
acquittal—it is not a rational basis upon which a jury could
have convicted him of simple possession. Proving Draganescu’s
knowledge alone would have been insufficient to satisfy the
elements of either simple possession of the marijuana or posses-
sion with the intent to deliver it. The State was also required to
prove Draganescu’s control or dominion over the marijuana or
that he aided and abetted Truesdale’s control and dominion over
the marijuana.89 And the court instructed the jury to that effect:
86 See Neb. rev. Stat. § 28-405(c)(10) (Cum. Supp. 2006).
87 State v. Johnson, 261 Neb. 1001, 627 N.W.2d 753 (2001).
88 See Malone, supra note 80.
89 See, Johnson, supra note 87; State v. Neujahr, 248 Neb. 965, 540 N.W.2d
566 (1995).
476 	276 NeBrASKA rePorTS

“‘Possession’ of a controlled substance means either knowingly
having it on one’s person or knowing of the substance’s presence
and having control over the substance, mere presence is not suf-
ficient.”90 Under this instruction, the jury could not have found
that Draganescu had possessed the marijuana unless it found that
he had control over it. Thus, the only issue is whether there was
a rational basis for a jury to conclude that Draganescu did not
intend to deliver the marijuana.
[47,48] We have held that evidence of the quantity of a con-
trolled substance possessed combined with expert testimony that
such quantity indicates an intent to deliver can be sufficient for
a jury to infer an intent to deliver.91 When the prosecution has
offered uncontroverted evidence on an element necessary for a
conviction of the greater crime but not necessary for the lesser
offense, the defendant must offer some evidence to dispute this
issue if he or she wishes to have the benefit of a lesser-offense
instruction.92 Because Draganescu did not dispute the State’s
evidence on the separate element of intent to deliver, he was
not entitled to an instruction on the lesser-included offense of
simple possession.
4. sufficiency of the evidence
Draganescu contends that the evidence was insufficient to
sustain his conviction because the only direct evidence linking
him to the marijuana was his presence in the van. he argues that
his mere presence in the place where the marijuana was found
is insufficient to show his knowledge of it. The State contends
that the circumstantial evidence established Draganescu’s guilt
beyond a reasonable doubt.
(a) Standard of review
[49,50] When reviewing for sufficiency of the evidence to
sustain a conviction, the relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable
90 See NJI2d Crim. 4.2.
91 State v. Utter, 263 Neb. 632, 641 N.W.2d 624 (2002).
92 State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001); State v. Becerra, 261
Neb. 596, 624 N.W.2d 21 (2001).
STATe v. DrAgANeSCU 	477
Cite as 276 Neb. 448

to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.93
regardless of whether the evidence is direct, circumstantial, or a
combination thereof, an appellate court, in reviewing a criminal
conviction, does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence.94
(b) Analysis
[51-55] Constructive possession of an illegal substance may
be proved by direct or circumstantial evidence.95 It is true that a
passenger’s mere presence in a vehicle with contraband is insuf-
ficient to support a finding of joint possession.96 But possession
of an illegal substance can be inferred from a vehicle passenger’s
proximity to the substance or other circumstantial evidence that
affirmatively links the passenger to the substance.97 generally,
a passenger’s joint possession of a controlled substance found
in a vehicle can be established by evidence that (1) supports
an inference that the driver was involved in drug trafficking, as
distinguished from possessing illegal drugs for personal use; (2)
shows the passenger acted suspiciously during a traffic stop; and
(3) shows the passenger was not a casual occupant but someone
who had been traveling a considerable distance with the driver.98
Courts have reasoned in part that a juror may reasonably infer
that a driver with a possessory interest in a vehicle who is trans-
porting a large quantity of illegal drugs would not invite some-
one into his or her vehicle who had no knowledge of the driver’s
drug activities.99 We agree.
93 See Gutierrez, supra note 43.
94 State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001).
95 State v. Flores, 245 Neb. 179, 512 N.W.2d 128 (1994), disapproved in part
on other grounds, State v. Johnson, 256 Neb. 133, 589 N.W.2d 108 (1999).
96 See, e.g., State v. Faircloth, 181 Neb. 333, 148 N.W.2d 187 (1967).
97 See State v. Woodruff, 205 Neb. 638, 288 N.W.2d 754 (1980). Compare,
Flores, supra note 95; Nelson, supra note 94.
98 See, Paez v. O’Lone, 772 F.2d 1158 (3d Cir. 1985); U.S. v. Norwood, 140
Fed. Appx. 850 (11th Cir. 2005); State v. Palacio, 205 N.J. Super. 256, 500
A.2d 749 (1985); Robinson v. State, 174 S.W.3d 320 (Tex. App. 2005).
99 See, Paez, supra note 98; Palacio, supra note 98. Compare U.S. v. Garcia-
Flores, 246 F.3d 451 (5th Cir. 2001).
478 	276 NeBrASKA rePorTS

here, Draganescu admitted that he had been traveling with
Truesdale and that they had been sleeping in the van. The drugs
were easily accessible to someone from the back seat. The
quantity of marijuana was sufficient to support an inference
that Truesdale was engaged in illegal drug trafficking100 and that
he would not have invited Draganescu to travel with him if he
had no knowledge of the scheme. Truesdale’s and Draganescu’s
explanations of their travel plans were contradictory. These
contradictory statements supported an inference that they were
attempting to conceal their activities. Finally, Draganescu made
false exculpatory statements regarding his presence in California.
A juror could reasonably infer that he was attempting to distance
himself from traveling with Truesdale in California because of
their illegal activities there. We conclude that the totality of
the circumstantial evidence supported the jury’s finding that
Draganescu jointly possessed the marijuana.
[56,57] Circumstantial evidence may also support a finding
that a defendant intended to distribute, deliver, or dispense a con-
trolled substance.101 Circumstantial evidence to establish posses-
sion of a controlled substance with intent to distribute or deliver
may consist of several factors: the quantity of the substance, the
equipment and supplies found with it, the place it was found,
the manner of packaging, and the testimony of witnesses expe-
rienced and knowledgeable in the field.102 Bigsby’s testimony
established that this quantity of marijuana showed an intent to
distribute, and Draganescu does not contend otherwise.
5. excessive sentence
Finally, Draganescu argues that his sentence was exces-
sive because he was eligible for intensive supervision proba-
tion and his incarceration will impose a hardship on his wife
and family.
100 See Anderson, supra note 14.
101 See, Johnson, supra note 87; State v. Konfrst, 251 Neb. 214, 556 N.W.2d
250 (1996).
102 See Konfrst, supra note 101.
STATe v. DrAgANeSCU 	479
Cite as 276 Neb. 448

(a) Standard of review
[58] Sentences within statutory limits will be disturbed by
an appellate court only if the sentences complained of were an
abuse of judicial discretion.103
(b) Analysis
[59] When imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education and
experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for
the offense, as well as (7) the nature of the offense, and (8) the
violence involved in the commission of the crime.104 Possession
of a controlled substance with intent to deliver is a Class III
felony,105 punishable by 1 to 20 years’ imprisonment, a $25,000
fine, or both.106 Because of his previous drug convictions, the
district court sentenced Draganescu to 5 to 11 years’ impris-
onment, a sentence clearly within the statutory limits. After
reviewing the record and the presentence investigation report,
which reflects previous drug-related convictions and sentences
of probation, we conclude that the district court’s sentence was
not an abuse of its discretion.
v. CoNCLUSIoN
We conclude that the district court did not err in overruling
Draganescu’s motion to suppress evidence. The state trooper had
probable cause to stop the vehicle, in which Draganescu was a
passenger, for a traffic violation; reasonable suspicion to detain
the occupants for further investigation; and probable cause to
search the vehicle. We further conclude that the district court did
not err in admitting exhibit 20 over Draganescu’s foundation,
hearsay, and relevance objections. Nor did the court err in fail-
ing to instruct the jury on the lesser-included offense of simple
possession. Finally, we conclude that the evidence was sufficient
103 State v. Hernandez, 273 Neb. 456, 730 N.W.2d 96 (2007).
104 State v. Reid, 274 Neb. 780, 743 N.W.2d 370 (2008).
105 See § 28-416(2)(b).
106 See Neb. rev. Stat. § 28-105 (Cum. Supp. 2006).
480 	276 NeBrASKA rePorTS

to support Draganescu’s conviction and that the court did not err
in sentencing him to 5 to 11 years’ imprisonment.
A ffirmed .
STATe v. DrAgANeSCU 	481
Cite as 276 Neb. 448