State v. Rocha

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/03/2017 09:08 AM CST

- 716 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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 evi-
dence claim, whether the evidence is direct, circumstantial, or a com-
bination 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 rel-
evant question for an appellate court is whether, after viewing the evi-
dence 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 dis-
turbed 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 con-
siderations 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.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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 per-
son may or may not have been telling the truth in a specific instance.
 9. Prosecuting Attorneys: Testimony. A prosecutor may not express per-
sonal opinions as to the credibility or veracity of the defendant’s testi-
mony, but may make comments resting on reasonably drawn inferences
from the evidence.
10. Criminal Law: Prosecuting Attorneys. It is highly improper and gen-
erally 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 cred-
ibility 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 ordi-
nary 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 pro-
bative 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.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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 histori-
cal 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 indepen-
dently 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 well-
delineated exceptions.
20. Warrantless Searches: Arrests: Motor Vehicles. Among the excep-
tions 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 residen-
tial 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.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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 can-
not 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 sub-
stantial 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 pos-
session of an illegal substance may be proved by direct or circumstan-
tial evidence.
37. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appellant
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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:
R andall 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, K elch, 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 R eport, A rrest of Rocha,
and Search of Vehicle
On January 17, 2015, a Scottsbluff Police Department
officer, William Howton, was dispatched on a call of suspi-
cious 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
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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 sub-
stance 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 hand-
cuffed and placed in the back of a police car.
Another police officer who had arrived on the scene ques-
tioned Trejo. The officer obtained consent to search Trejo’s
person and purse and conducted the search. A capsule contain-
ing what appeared to be marijuana, a glass smoking device
with what appeared to be burnt marijuana, and a black digi-
tal 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 plas-
tic bags containing a crystal-like substance later confirmed
to be methamphetamine. Between the center console and the
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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, roll-
ing 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 per-
son, 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).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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 admis-
sion 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).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. ROCHA
Cite as 295 Neb. 716

And:
[Howton]: . . . What I’m saying is, is, I know that can-
ister 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 hun-
dred 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 limit-
ing 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 pur-
poses 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 sub-
stance[] belongs to . . . Rocha . . . and that he does not
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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 simi-
lar 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 refer-
ring 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 exit-
ing 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 “‘automo-
bile 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).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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 mari-
juana 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 indepen-
dent 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.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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 tes-
timony in its entirety. Rocha has pleaded not guilty and is
presumed to be innocent. The State’s burden to prove each ele-
ment 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 ver-
sion 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
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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 pos-
session 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’ impris-
onment 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.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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 suf-
ficiency 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 con-
ceded 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 wit-
nesses, determine the plausibility of explanations, or reweigh
the evidence; such matters are for the finder of fact.4 The rel-
evant 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 sus-
pended, [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).
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
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 pre-
sented at trial.
Because there was no evidence that Rocha’s license was
suspended on January 17, 2015, we conclude that even view-
ing 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. DenialMotion in Limine: Police Statements
of
Credibility of Defendant in
on
R ecorded Interrogation
Rocha argues that the district court erred in not grant-
ing his motion in limine to exclude portions of the recorded

 7
See id.
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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 conse-
quence 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).
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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 wit-
ness, 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 conclu-
sions on an ultimate fact in issue because such testimony, it
was believed, “‘usurps the function’ or ‘invades the prov-
ince’ 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).
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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’ cred-
ibility 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
defend­ ant’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.
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rationales for this prohibition is that “[t]he prosecutor’s opin-
ion 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 metham-
phetamine 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 inadmis-
sible 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 cred-
ibility 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).
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Some courts have found such statements to be inadmissi-
ble.31 In State v. Elnicki,32 the Supreme Court of Kansas con-
sidered 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 sit-
ting 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 prohib-
ited 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 sug-
gested 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 expres-
sion 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).
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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 admis-
sible 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 interroga-
tion 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 vic-
tim 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.
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the officer’s comments that he was an expert in deception
detection were not necessary to give context to the defend­
ant’s answers.44 The court concluded that the officer’s com-
ments 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 defend­
ant 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 instruc-
tion 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.
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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 per-
son 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 interroga-
tor’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 state-
ments 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.
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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 imma-
terial and, thus, not relevant. . . . Likewise, the inter-
rogator’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 state-
ments. . . . 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 state-
ments 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.
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the defendant’s statements.61 It determined that the limiting
instruction given after the recording was played was insuf-
ficient, 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 defend­
ant’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 mat-
ter 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 con-
text 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.
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Upon request, a defendant is entitled to a limiting instruction
that such statements are to be considered only for the permis-
sible purpose of providing context to the defendant’s state-
ments in the interview.66
[13] To be relevant, evidence must be probative and mate-
rial.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 proba-
tive 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 seri-
ous 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.
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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 own-
ership 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 state-
ments 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).
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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 opin-
ions, 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 imprima-
tur 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 know-
ingly 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).
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when he denied it, even though the statements were not admis-
sible for that purpose.
But in considering the risk of unfair prejudice in a rule
403 analysis, we also consider the effect of limiting instruc-
tions 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 substan-
tive 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 instruc-
tion 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 inter-
view 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 automati-
cally 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 defer-
ential 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 enforce-
ment 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.
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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 auto-
matically 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 ques-
tion 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.
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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 infer-
ences 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 reason-
ableness.80 Searches and seizures must not be unreasonable.
Searches without a valid warrant are per se unreasonable, sub-
ject 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 law-
ful 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).
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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 juris-
diction 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.
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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 exam-
ined 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.
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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 imme­
diately mobile, the lesser expectation of privacy result-
ing 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 automo-
bile 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 con-
tents 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.
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The Court has made clear that if probable cause and ready
mobility are present, no additional showing of exigent circum-
stances 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 auto-
mobile exception requires probable cause and exigent circum-
stances 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 circum-
stances 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).
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Rocha also cites cases106 from other states which have con-
tinued 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 prob-
able cause. There is no additional requirement of the impracti-
cability 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).
107
Brief 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.
110
Brief for appellant at 38.
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“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 mobil-
ity 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 mobil-
ity] 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 mean-
ing of the automobile exception has more to do with
the inherent mobility of the vehicle than with the poten-
tial for the vehicle to be moved from the jurisdiction,
thereby precluding a search. . . . The district court’s read-
ing 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).
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passenger to flee immediately in the car, or the likeli-
hood 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 perma-
nent 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 automo-
bile 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 state-
ment in Dyson[120] that the automobile exception “does
not have a separate exigency requirement,” . . . we con-
clude 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.
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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 recogni-
tion 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.
122
Chavies v. Com., 354 S.W.3d 103, 111 (Ky. 2011).
123
Id.
124
State v. Allensworth, 748 N.W.2d 789, 797 (Iowa 2008).
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away . . . during the period required for the police to obtain
a warrant.”125 In Pennsylvania v. Labron,126 the Court like-
wise 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 mov-
ing 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 pri-
vate 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 mobil-
ity 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, perma-
nent structures, in which there is a greater reasonable expecta-
tion of privacy.

(d) Application
[24,25] In this case, the automobile exception clearly justi-
fies 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, com-
monsense standard that depends on the totality of the circum­
stances.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 evi-
dence of a crime will be found.128 The totality of the facts,

125
Michigan v. Thomas, supra note 99, 458 U.S. at 261.
126
Pennsylvania v. Labron, supra note 97.
127
State v. Dalland, supra note 78.
128
Id.
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including Rocha’s “nervous” behavior, the residue found in
Rocha’s sweatshirt that appeared to be marijuana, and the sus-
pected 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 R egarding
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 test-
ing 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 bur-
den 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
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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 erro-
neously 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 oth-
ers, 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.
131
Patterson 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.
134
Hayes v. State, 660 So. 2d 257 (Fla. 1995).
135
Id.
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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 finger-
prints and DNA were not on the vials containing methamphet-
amine. Rocha did not open the door to this questioning by rais-
ing 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 discre-
tion 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.
138
People v. Beasley, 384 Ill. App. 3d 1039, 1048, 893 N.E.2d 1032, 1040,
323 Ill. Dec. 558, 566 (2008).
139
Hayes v. State, supra note 134.
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be innocent” and that “[t]he State’s burden to prove each ele-
ment 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 ques-
tioning and testimony, in light of the jury instructions, did not
deprive Rocha of a fair trial.
5. Denial of R equest 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 instruc-
tion 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).
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[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 lesser-
included 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, consti-
tutes 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 construc-
tive 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.
148
Neb. 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.
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direct or circumstantial evidence.152 To be guilty, the defend­
ant 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 metham-
phetamine and thus was engaging in a substantial step toward
possessing a controlled substance.
As the criminal attempt statute makes clear, a person com-
mits 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.
153
Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2014).
154
State v. Armagost, 291 Neb. 117, 864 N.W.2d 417 (2015).
155
Brief for appellant at 47.
156
§ 28-201(1)(b) (emphasis supplied).
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canister contained methamphetamine is an argument that his
state of mind constituted a substantial step toward the neces-
sary 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 meth-
amphetamine, 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 pos-
session, not just attempted possession, because the metham-
phetamine 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

157
Black’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).
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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 con-
viction for driving under suspension. We reject all of his
other assignments of error, or find that they constitute harm-
less error. We affirm the judgment of the district court in all
other respects.
A ffirmed in part, and in part vacated.
Heavican, C.J., not participating.