State of Nebraska v. Henry O. Salvador Rodriguez

Henry O. Salvador Rodriguez was charged with one count of

possession of methamphetamine with intent to deliver and one

count of possession of a defaced firearm, both on or about July

30, 2014. A jury found Salvador Rodriguez guilty of possessing

methamphetamine, in an amount of over 10 grams, with

intent to deliver. The jury found Salvador Rodriguez not guilty

of possession of a defaced firearm.

1. Warrantless Search

Salvador Rodriguez sought suppression of all evidence

obtained during searches of his place of residence conducted

pursuant to warrants that were issued based on observations

during an initial warrantless search. The State asserted that

the warrantless search was reasonable because of the exigent

circumstance of a possible intruder in the house. Alternatively,

the State argued the search was authorized by Lori Ezell, who

had common authority over the house.

(a) Officer Testimony

Officer Adam Wackler testified that on July 23, 2014, he

responded to a report of a domestic disturbance between Ezell

and Gilbert Chavez at the apartment where Chavez lived.

Wackler had responded previously to similar disturbances at

that apartment. Wackler suggested that Ezell and Chavez spend

the night apart, and they agreed.

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Cite as 296 Neb. 950

Ezell told Wackler that she had the key to a friend’s house

because she was taking care of the friend’s dog and that she

stayed there when she was not getting along with Chavez.

Ezell told Wackler that she had a bedroom at that house and

that she kept some of her and her children’s things there. Ezell

said she stayed at the house sometimes for just a day, other

times for 2 weeks; it depended on the situation.

Ezell explained to Wackler that her friends, whom she identified

as Salvador Rodriguez and Rosa Anguiano, were out of

town. She explained that Salvador Rodriguez and Anguiano

rented the house, hereinafter referred to as the “Salvador

Rodriguez house.”

Wackler testified that after making a telephone call, Ezell

reported to him that Salvador Rodriguez and Anguiano had

given Ezell permission to stay at their house that night.

Wackler drove Ezell and one of her children to the Salvador

Rodriguez house.

A couple of hours later, Wackler received another call from

Ezell. Wackler had given Ezell his work cell phone number

to use in case things escalated further between Ezell and

Chavez that night. Ezell seemed upset. She told Wackler that

she was afraid an intruder was in the Salvador Rodriguez

house. Wackler met Ezell and her child on a street corner near

the house.

Ezell told Wackler that she had gone for a walk with her

child. When she returned to the Salvador Rodriguez house,

all the lights were on and she thought she saw somebody in

the garage looking at her. Ezell reported that she had shut and

locked the door and had turned off all the lights in the house

before leaving for their walk.

Ezell told Wackler that she was afraid to go back into the

house, because she knew Salvador Rodriguez and Anguiano

were not there. She asked Wackler to come and make sure that

nobody was inside.

When Officer Clay Heath arrived as backup, Wackler and

Heath approached the Salvador Rodriguez house and observed

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that the front door was unlocked and open a crack—though in

later testimony Wackler described that it was closed but was

not latched closed.

Wackler and Heath entered and proceeded to clear the house

by looking “anywhere that a person could fit.” They did not

find anyone in the house. When looking in closets, however,

Wackler and Heath observed two firearms in plain view. In the

closet of the kitchen, they observed a shotgun that appeared to

have the barrel cut off. In the closet of the master bedroom,

they saw a pistol.

Concerned that someone might be hiding in the house who

would have access to the weapons, Wackler and Heath made

sure that the pistol did not have ammunition. They picked it

up to clear the chamber. In doing so, they found that the pistol’s

serial number appeared to have been partially scratched

off. They returned the pistol and continued their search. It was

unclear whether Wackler and Heath picked up the shotgun in

the kitchen.

After ensuring that no one was in the Salvador Rodriguez

house, Wackler and Heath returned the keys to Ezell. Anguiano

called Wackler later that night to ask if the house had been

broken into. Wackler reported that because Ezell did not see

anything out of place, he did not think so. Wackler confirmed

with Anguiano that Ezell had permission to stay in the house.

(b) Ezell’s Testimony

Ezell testified that she stayed at the Salvador Rodriguez

house at least once a week, when she and Chavez would “get

into it.” She had a bedroom there where she and her children

slept when they stayed the night. She kept some of her and

her children’s possessions in that bedroom and had a key to

the house.

Ezell repeatedly testified that she moved into the Salvador

Rodriguez house approximately 1 week prior to July 23, 2014.

But in other testimony, she seemed to indicate that she moved

into the Salvador Rodriguez house on July 23.

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STATE v. SALVADOR RODRIGUEZ

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After moving in, Ezell considered herself a “permanent resident”

insofar as she was living there and had all of her and her

children’s belongings there. She described those belongings as

clothing, toiletries, medicines, and a crib. Salvador Rodriguez

and Anguiano told her to “make it like it was [her] own home.”

She further affirmed that she had “free rein over the entire

house.” Ezell said she was a “guest” inasmuch as she did not

pay any bills or rent.

Ezell testified that a couple of hours after Wackler responded

to the domestic disturbance report, she called Wackler because

she thought an intruder was inside the Salvador Rodriguez

house. Salvador Rodriguez and Anguiano were out of town all

that week. Ezell and her children had gone to get ice cream.

When they returned, she noticed that a light was on and the

garage door was open, but she did not think anything of it right

away. One of her children wanted to go back to get more ice

cream, and when they exited the house, they saw Ezell’s van

with all the doors open, including the back hatch. She had left

all the van doors closed. One of her children screamed that

someone was in the garage. Ezell testified that she also saw

someone in the garage.

Sometime after Wackler and Heath searched the house

and found no intruders, Ezell called Salvador Rodriguez and

Anguiano. Ezell testified that neither gave her any indication

that she did not have authority to ask the police to check

if there was an intruder in the house. Salvador Rodriguez

reportedly told her, “‘It’s okay. I had someone go check on

the house.’”

(c) Subsequent Searches

On July 30, 2014, Wackler and Heath obtained a warrant to

search the Salvador Rodriguez house, based on their observations

of the defaced firearms. A water bill confirmed Salvador

Rodriguez and Anguiano as the residents, either the owners or

the renters, of the house. At trial, Wackler testified that photographs

inside the home, as well as other documents, such as

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checkbooks and tax documents, identified Salvador Rodriguez

and Anguiano as the residents of the house.

When conducting the search pursuant to the warrant,

Wackler and Heath found what appeared to be methamphetamine

under a couch in the basement. On August 2, 2014,

Wackler and Heath obtained another warrant, to search for

drugs and drug paraphernalia. In the search conducted pursuant

to this second warrant, they found more methamphetamine

under the couch in the basement, as well as underneath a basement

sink.

(d) Trial Court’s Order

The court overruled the motion to suppress. The court

found that Wackler was called to a domestic dispute between

Ezell and Chavez and that Ezell had Wackler take her to the

Salvador Rodriguez house. The court found that Ezell advised

Wackler that she was housesitting for Salvador Rodriguez and

Anguiano, had a key to the premises, stayed there off and

on when she and Chavez were fighting, and had a room at

the house.

The court found that after a couple of hours, Ezell called

Wackler and reported that upon her return from a walk, the

lights of the residence were on and she thought she saw someone

in the garage. Ezell told Wackler that she had shut off

all the lights and locked the door before going for her walk.

Ezell was frantic, very upset, and scared. She asked Wackler to

check the house to make sure no one was inside.

The court found that once Heath arrived as backup, the officers

approached the house and noticed the lights were on and

that the door was unlocked and not entirely shut. They entered

the house and searched the house only in locations where it

was reasonable that a person could hide.

In the closet of the master bedroom, the officers saw a

revolver. The court found that for their safety, Wackler and

Heath decided to clear the handgun of any ammunition. In

doing so, they noticed that the serial number had been altered

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or filed and that it was defaced. After clearing the bedroom,

the officers searched a closet in the kitchen that was large

enough for a person to hide in. Inside, they found a shotgun

that appeared to have been altered.

The trial court concluded that the warrantless search at

issue was reasonable under the Fourth Amendment either as a

search undertaken with consent or as a search conducted under

exigent circumstances. With regard to its conclusion that the

search was undertaken with consent, the court reasoned that

Wackler had a reasonable basis to conclude that Ezell had

common authority over the house at that time. With regard to

the exigent circumstances, the court reasoned that Wackler had

reasonable grounds to believe that there was an emergency and

that the clearing of the guns found during the search did not

exceed the scope of the exigency.

(e) Evidence Seized During Searches

The motion to suppress was overruled. The evidence adduced

at trial showed that a total of approximately 340 grams of

methamphetamine was seized during a search of the Salvador

Rodriguez house. From the master bedroom, the officers also

seized the pistol and drug paraphernalia; they did not find the

sawed-off shotgun.

2. Prior Drug Use

The prosecution offered testimony by Ezell describing

Salvador Rodriguez’ drug usage and how he kept methamphetamine

under the basement couch and provided the drug

to her and other guests. No notice was filed by the State prior

to trial advising Salvador Rodriguez that it intended to adduce

any evidence of prior bad acts under rule 404(2), and Salvador

Rodriguez did not file any pretrial motions concerning the

possible admission of prior bad acts. No hearing pursuant to

rule 404(3) was conducted outside the presence of the jury to

determine whether the State proved by clear and convincing

evidence that a prior crime, wrong, or act occurred.

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Ezell testified, without objection, that she and Salvador

Rodriguez used methamphetamine together in the basement of

the Salvador Rodriguez house as follows:

Q[.] Once you became friends with [Anguiano]

did you also get to know [Salvador Rodriguez] better

as well?

A[.] Yes.

Q[.] In what way?

A[.] We both shared a habit that we used together.

Q[.] Well, let’s talk about that. You said you shared a

habit that you used together. What do you mean by that?

A[.] We both used meth.

. . . .

Q[.] And when you began using methamphetamine,

how did it happen that you started using it?

A[.] The owners of the plant first offered it to me at a

party. And that’s when I very first started using it.

Q[.] And you said that you and [Salvador Rodriguez]

shared in that habit. What did you mean by that?

A[.] After I got to know him a little better, I found out

that he also smoked meth and so we would smoke meth

together.

Q[.] And where would you typically do that?

A[.] At his house.

Q[.] Where at in the house?

A[.] In the basement.

When the prosecutor proceeded after this questioning to

ask if other people smoked methamphetamine with Ezell and

Salvador Rodriguez, defense counsel objected for the first

time. Defense counsel objected on the ground that the line of

questioning violated rule 404. The court sustained the objection,

but denied defense counsel’s motion to strike Ezell’s

testimony that she and Salvador Rodriguez smoked methamphetamine

together.

When the prosecutor pursued further questioning about

Ezell’s and Salvador Rodriguez’ drug usage, the attorneys

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approached the bench for an off-the-record discussion.

Questioning about drug usage after that was focused on the

summer of 2014. Defense counsel made a continuing objection

to “any evidence regarding past use of drugs” as being in

violation of [rule 404]. The court overruled the objection.

Ezell then testified that two or three times a week she

smoked methamphetamine with Salvador Rodriguez in his

basement. Other people were sometimes present. The methamphetamine

that anyone used in the basement always came from

underneath the basement couch.

Ezell also testified that she once saw Anguiano with a large

amount of cash. Ezell testified that on the day of the “raid”

on the house, Salvador Rodriguez admitted to her that law

enforcement would find large quantities of methamphetamine

there, because he was a dealer.

After the State’s case in chief, defense counsel called several

character witnesses who testified generally as to Salvador

Rodriguez’ good character and testified that Salvador Rodriguez

was not a drug user or abuser.

At the jury instruction conference, defense counsel conceded

that he was not arguing that the evidence of Salvador

Rodriguez’ drug usage with Ezell was inadmissible. Defense

counsel asked for a jury instruction that would ensure the jury

would use the evidence for its independent relevance and not

for propensity reasoning. The trial court denied the request and

did not instruct the jury on the proper purpose for which it

could consider the evidence of Salvador Rodriguez’ drug use.

The court reasoned that the drug use was not prior bad acts, but

instead was an integral part of and contributed to the factual

setting of the crime charged.

3. Closing Arguments

No record was made of closing arguments. Neither did

Salvador Rodriguez make an offer of proof concerning any

statements allegedly made during closing arguments. In a

motion for new trial, defense counsel alleged that the prosecutor

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stated in closing arguments that Salvador Rodriguez “‘owned’”

the house where the methamphetamine was found. The motion

further alleged that defense counsel’s objections to such testimony

were overruled. Defense counsel attached to the motion

an affidavit averring that the factual allegations in the motion

for new trial were true.

The jury was instructed that “possession” of a thing means

either knowingly having it on one’s person or knowing of its

presence and having the right to exercise dominion and control

over it. During deliberations, the jury asked, “Is there any other

evidence that [Salvador Rodriguez] had leased or rented the

house?” and “Does ownership/lease equate to liability?” The

court answered that the jury had received all the evidence and

must refer to the jury instructions.

III. ASSIGNMENTS OF ERROR

Salvador Rodriguez assigns that the trial court erred when

it (1) overruled his motion to suppress evidence gained as a

result of the warrantless search of his residence, (2) allowed

evidence of past methamphetamine use, (3) gave no limiting

instruction concerning for what limited purpose the evidence

of past methamphetamine use was allowed, and (4) overruled

his objection during closing arguments to the State’s comments

that he owned the house where he lived.

IV. STANDARD OF REVIEW

[1] In reviewing a trial court’s ruling on a motion to suppress

based on a claimed violation of the Fourth Amendment,

an appellate court applies a two-part standard of review.

Regarding historical facts, an appellate court reviews the trial

court’s findings for clear error, but whether those facts trigger

or violate Fourth Amendment protections is a question of

law that an appellate court reviews independently of the trial

court’s determination.1

1 State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).

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[2] In reviewing a trial court’s denial of a motion to suppress

evidence obtained by a warrantless search under the emergency

doctrine, an appellate court employs a two-part standard in

which the first part of the analysis involves a review of the

historical facts for clear error and a review de novo of the trial

court’s ultimate conclusion that exigent circumstances were

present.2 Where the facts are largely undisputed, the ultimate

question is an issue of law.3

[3] It is within the discretion of the trial court to determine

relevancy and admissibility of evidence of other wrongs or

acts under rule 404(2), and the trial court’s decision will not be

reversed absent an abuse of discretion.4

V. ANALYSIS

Three basic issues are raised in this appeal. First, Salvador

Rodriguez asserts that the court should have suppressed the

physical evidence found in his home, because it was the fruit

of a warrantless search. Second, Salvador Rodriguez argues he

was prejudiced by the lack of a limiting instruction concerning

what he contends was evidence of prior bad acts within the

purview of rule 404. Lastly, Salvador Rodriguez argues there

was prosecutorial misconduct during closing arguments when

the prosecutor falsely stated Salvador Rodriguez owned the

home where he resided.

1. Motion to Suppress Evidenc e Obtained

in Warrantless Search

[4] Searches without a valid warrant are per se unreasonable,

subject only to a few specifically established and

well-delineated exceptions that must be strictly confined by

their justifications.5 The State has the burden of showing the

2 See State v. Eberly, 271 Neb. 893, 716 N.W.2d 671 (2006).

3 State v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015).

4 State v. Parnell, 294 Neb. 551, 883 N.W.2d 652 (2016).

5 See, State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017); State v. Perry,

292 Neb. 708, 874 N.W.2d 36 (2016).

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applicability of one or more of the exceptions to the warrant

requirement.6

[5] In the case of entry into a home, a police officer who has

obtained neither an arrest warrant nor a search warrant cannot

make a nonconsensual and warrantless entry in the absence of

exigent circumstances.7 The trial court found that the search

of the Salvador Rodriguez house was justified by the exigent

circumstance of a possible burglary in progress and by being,

regardless, consensual.

The question presented on appeal is whether the trial court

was correct in determining that the warrantless search was constitutional

because a reasonable officer would have believed

either that (1) a burglary was in progress or (2) Ezell had

authority to consent to the search. The parties do not dispute

that if the warrantless search was unreasonable, the court

should have suppressed evidence of the items seized during

subsequent searches pursuant to warrants based on the items

observed during the warrantless search. The parties do not

dispute that if the warrantless search was reasonable, any handling

of the weapons in plain view in order to ensure officer

safety was within the proper scope of the search.

We conclude that the exigent circumstance of a possible

burglary in progress justified the warrantless search, and we

need not address the alternative basis from the trial court’s

order that Ezell had authority to consent to the search.

[6] The “‘emergency doctrine’” is a category of exigent circumstances.

8 The elements of the emergency doctrine are that

(1) the police must have reasonable grounds to believe there

is an immediate need for their assistance for the protection of

life or property and (2) there must be some reasonable basis to

associate the emergency with the area or place to be searched.9

6 State v. Perry, supra note 5.

7 See State v. Eberly, supra note 2.

8 See id. at 900, 716 N.W.2d at 677.

9 See id.

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The first element considers whether there were reasonable

grounds to find an emergency, and the second element considers

the reasonableness of the scope of the search.10 Salvador

Rodriguez focuses only on the first element and argues that

reasonable police officers would not have had grounds under

these facts to believe there was an immediate need for their

assistance for the protection of life or property.

[7-9] An action is reasonable under the Fourth Amendment,

regardless of the individual officer’s state of mind, as long as

the circumstances viewed, objectively, justify the action.11 The

presence of an emergency, like probable cause, hinges on the

reasonable belief of the officers in light of specific facts and

the inferences derived therefrom, not whether, in hindsight, one

actually existed.12 The first element of the emergency doctrine

is similar to probable cause and asks whether the facts available

to the officer at the moment of entry warranted a person

of reasonable caution to believe that entry was appropriate.13

[10,11] Courts generally find sufficient exigent circumstances

to justify the warrantless entry into a home when a

police officer reasonably believes that a burglary is in progress

or was recently committed therein.14 A burglary indicates an

immediate need to secure the premises, because it raises the

possibility of danger to an occupant and the continued presence

of an intruder.15

In State ex rel. Zander v. District Court,16 the court found

that an officer reasonably believed a burglary might be in

progress in a house after a neighbor reported that he knew

10 See id.

11 See id.

12 See id.

13 See State v. Eberly, supra note 2.

14 See id. See, also, Annot., 64 A.L.R.5th 637 (1998) (and cases cited

therein).

15 See State v. Eberly, supra note 2.

16 State ex rel. Zander v. District Court, 180 Mont. 548, 591 P.2d 656 (1979).

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no one was at home, he saw someone tampering with a window

in the home, and the door to the home was always kept

locked. The investigating officer found no signs of tampering

at the window, but after knocking on the door and receiving

no response, the officer found the door unlocked when he

tested the handle.17 The court concluded it was reasonable for

the officer, believing a burglar might be hiding in the house,

to search without a warrant those areas of the house where a

burglar might be hiding.18

In Hill v. Com.,19 the court similarly found that officers reasonably

believed a burglar might be in a house that was the

subject of a warrantless search. A neighbor reported that the

occupant of the house had been out of town for 2 days and

that the front door of his house was open. When the officers

arrived, they observed that the front door was ajar approximately

12 to 15 inches and that no one answered the door

when they rang the doorbell and knocked on the storm door.20

The court found that under such circumstances, it was reasonable

to search without a warrant those places inside the house

where a burglar might hide.21

The court in Hill explained that the situation of a possible

burglary in progress required prompt action and an immediate,

warrantless entry. It was the officers’ duty to determine if the

house had been burglarized, to apprehend any burglar, and to

resecure the premises.22 It would have been impractical, the

court noted, for one officer to go for a warrant while the other

attempted to secure the premises from all sides.23

17 Id.

18 Id.

19 Hill v. Com., 18 Va. App. 1, 441 S.E.2d 50 (1994). See, also, e.g., Love v.

State, 290 Ga. App. 486, 659 S.E.2d 835 (2008).

20 Hill v. Com., supra note 19.

21 Id.

22 Id.

23 Id.

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In contrast to State ex rel. Zander and Hill, in United States

v. Selberg,24 the court held there were insufficient facts for a

reasonable officer to believe that warrantless entry was appropriate.

The neighbor who called the police saw the occupant

leave the door open when he left, observed that the door

remained open the following day, and observed that the occupant’s

car was still gone. No occupant answered to knocks on

the door.25 The court found that under such facts, the warrantless

search of the home was unreasonable.26

We find no clear error in the trial court’s findings concerning

the historical facts. Ezell told Wackler that Salvador

Rodriguez and Anguiano, who leased the house, were out of

town, and that she and her child were the only occupants in

the house before they went for a walk. Ezell told Wackler that

when they left for their walk, they turned off all the lights in

the house and locked the doors. Ezell told Wackler that when

they returned, they saw someone in the garage and all the

lights in the house were on. Wackler and Heath confirmed that

the lights of the house were on, and they found that the front

door of the house was unlocked and not entirely shut.

In our de novo review, we agree with the trial court that

these facts, taken together with rational inferences therefrom,

reasonably warranted an immediate intrusion of the Salvador

Rodriguez house into areas where a burglar might be hiding.

The officers had reasonable grounds to believe that there was

an emergency requiring an immediate warrantless search of

the house. The trial court did not err in overruling Salvador

Rodriguez’ motion to suppress.

2. Drug Use as Prior Bad Act

Salvador Rodriguez’ second assignment of error concerns

Ezell’s testimony that she smoked methamphetamine

24 United States v. Selberg, 630 F.2d 1292 (8th Cir. 1980). See, State ex rel.

Zander v. District Court, supra note 16; Hill v. Com., supra note 19.

25 United States v. Selberg, supra note 24.

26 Id.

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with Salvador Rodriguez and other guests and that Salvador

Rodriguez provided the methamphetamine which he kept underneath

his basement couch. Salvador Rodriguez argues that the

court committed error because the testimony was admitted as

intrinsic evidence rather than as other acts evidence admitted

for a proper purpose under rule 404(3). Specifically, he argues

he was prejudiced by a lack of an instruction to the jury to

consider the evidence only for its proper purpose.

[12] We find no error in the trial court’s determination that

Ezell’s testimony was direct evidence of the crime charged and

thus outside the purview of rule 404. Rule 404(2) concerns

“[e]vidence of other crimes, wrongs, or acts.” Other acts under

rule 404(2) are acts that are not part of the events giving rise to

the present charges.27

Salvador Rodriguez was charged with possession of methamphetamine

with intent to deliver “on or about” July 30,

2014, the date when officers found methamphetamine underneath

Salvador Rodriguez’ basement couch. Defense counsel

objected to Ezell’s testimony that during the summer of 2014,

she had observed Salvador Rodriguez in possession of methamphetamine

which he kept underneath the basement couch.

[13-16] The phrase “on or about” in an information indicates

the date with approximate certainty.28 Furthermore, the

crime of “possession” may extend over a period of time if

uninterrupted.29 Absent language indicating differently, “possession”

within a criminal statute contemplates a continuing

offense as opposed to a single incident.30 There is no indication

27 U.S. v. Gorman, 312 F.3d 1159 (10th Cir. 2002). See State v. Cullen, 292

Neb. 30, 870 N.W.2d 784 (2015). See, also, e.g., U.S. v. Carboni, 204 F.3d

39 (2d Cir. 2000); U.S. v. Kinshaw, 71 F.3d 268 (8th Cir. 1995); U.S. v.

Soliman, 813 F.2d 277 (9th Cir. 1987); U.S. v. Fortenberry, 971 F.2d 717

(11th Cir. 1992).

28 See State v. Metzger, 199 Neb. 186, 256 N.W.2d 691 (1977).

29 State v. Williams, 211 Neb. 650, 319 N.W.2d 748 (1982).

30 See id.

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the Legislature intended that possession of methamphetamine

should always be a single incident rather than a continuing

offense. An offense is continuing if

“set on foot by a single impulse and operated by an

unintermittent force, however long a time it may occupy;

an offense which continues day by day; a breach of the

criminal law, not terminated by a single act or fact, but

subsisting for a definite period and intended to cover or

apply to successive similar obligations or occurrences.”31

[17] In U.S. v. Towne,32 the court held that evidence of the

defendant’s possession of a pistol on days other than the date

described in the information charging him with being a felon

in unlawful possession of a pistol was not evidence of other

acts within the meaning of Fed. R. Evid. 404(b), the federal

equivalent to our rule 404(2). The continuous possession of the

gun, the court explained, constituted a single offense. And evidence

of uncharged criminal activity is not considered “‘other

crimes’” evidence under that rule if it “‘arose out of the same

transaction or series of transactions.’”33

Justice Cassel in his concurring opinion in State v.

Freemont34 discussed several analogous cases holding that

evidence of possession on dates other than those specified

in the information is direct evidence of the charged crime of

possession rather than other acts evidence.35 The defendant in

Freemont was charged with second degree murder. In addition,

31 Id. at 655, 319 N.W.2d at 751, quoting 22 C.J.S. Criminal Law § 1 (1961).

32 U.S. v. Towne, 870 F.2d 880 (2d Cir. 1989). Compare U.S. v. Bowie, 232

F.3d 923 (D.C. Cir. 2000) (affirmative evidence that is not same item

previously observed).

33 See U.S. v. Towne, supra note 32, 870 F.2d at 886.

34 State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012) (Cassel, J.,

concurring).

35 See, U.S. v. Dorsey, 677 F.3d 944 (9th Cir. 2012); U.S. v. Adams, 604 F.3d

596 (8th Cir. 2010); United States v. Mitchell, 613 F.2d 779 (10th Cir.

1980).

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he was charged with use and possession of a deadly weapon.

Justice Cassel reasoned that evidence that the defendant had

been seen a week prior with a gun similar to the one used in

the shooting bore directly on an element of the possession

charge and therefore was not other acts evidence. Noting that

the crime of possession stated in the information was committed

“‘on or about’” the date specified, he concluded that the

evidence of the possession days before was “not so removed

in time as to lose its temporal connection to the charged date

of possession.”36

The majority in Freemont held that the evidence of the

defendant’s possession of a gun before the date specified in

the information was other acts evidence. But we failed to

discuss the concept of continuing possession. We have since

explained that our holding in Freemont is limited to circumstances

where the offense of possession is entirely different

from the most serious charged offense.37 That is not the situation

presented here.

We find the reasoning in Towne38 is applicable to this case.

Ezell’s testimony supports the inference that in July 2014,

Salvador Rodriguez gradually consumed with his acquaintances

a stash of methamphetamine that he kept in his basement.

In the objected-to testimony, Ezell did not testify that

Salvador Rodriguez had committed on unrelated occasions

the crime of possession of methamphetamine with intent to

deliver, such that he had the character trait of being the type

of person who possesses methamphetamine with intent to

deliver. Rather, Ezell’s testimony was direct evidence that on

or about July 30, 2014, Salvador Rodriguez was engaged in a

series of transactions constituting the crime of possession of

36 State v. Freemont, supra note 34, 284 Neb. at 212, 213, 817 N.W.2d at

303, 304 (Cassel, J., concurring).

37 State v. Cullen, supra note 27.

38 U.S. v. Towne, supra note 32.

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methamphetamine with intent to deliver. This is not other acts

evidence. Ezell’s testimony did not require an intermediate

propensity inference in order for the trier of fact to have concluded

based on that testimony that Salvador Rodriguez committed

the crime charged. The court did not err in overruling

defense counsel’s rule 404 objection.

3. Comments in Closing Arguments

[18] Salvador Rodriguez asserts there was prosecutorial misconduct

in closing arguments. But the closing arguments were

not recorded in the bill of exceptions. It is the law in Nebraska

that, where allegedly prejudicial remarks of counsel do not

appear in the bill of exceptions, this court is precluded from

considering an assigned error concerning such remarks.39 We

mentioned in State v. Harris40 that counsel could have made an

offer or proof when closing arguments were not in the record.

But here, the only “evidence” of the statements made in closing

arguments is an affidavit attached to the motion for new

trial in which the defense attorney avers that the factual allegations

in the motion are true.

[19,20] It has long been the law of this state that affidavits

in support of a motion for new trial must be offered in evidence

and preserved in and made a part of a bill of exceptions to be

considered by this court.41 This court will not review testimony

in the form of affidavits used in the trial court on the hearing

of a motion for new trial, unless such affidavits have been

included in and presented by a bill of exceptions.42

Salvador Rodriguez argues he was unfairly prejudiced

when the prosecutor said in closing arguments that Salvador

39 State v. Harris, 205 Neb. 844, 290 N.W.2d 645 (1980).

40 See id.

41 Metschke v. Department of Motor Vehicles, 186 Neb. 197, 181 N.W.2d

843 (1970), overruled on other grounds, State v. Perez, 235 Neb. 796, 457

N.W.2d 448 (1990).

42 Id.

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Rodriguez owned the house where the methamphetamine was

found. Defense counsel averred that in his closing arguments,

he corrected this and told the jury that Salvador Rodriguez

was only a tenant and had no legal ownership in the house.

Even assuming the prosecution made the statements alleged,

the prosecutor’s remarks were not misconduct and Salvador

Rodriguez was not prejudiced. The ownership of the house was

not decisive of any issue in the case, and there was no allegation

that the prosecutor told the jury that ownership of the residence

was relevant to the crimes charged. We find no merit to

this last assignment of error.