                         IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                       (Memorandum Web Opinion)

                                         STATE V. REIN


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                               V.

                                 DESIRAE A. REIN, APPELLANT.


                           Filed October 30, 2018.    No. A-17-649.


       Appeal from the District Court for Scotts Bluff County: LEO P. DOBROVOLNY, Judge.
Affirmed.
       Bernard J. Straetker, Scotts Bluff County Public Defender, for appellant.
       Douglas J. Peterson, Attorney General, and Joe Meyer for appellee.


       MOORE, Chief Judge, and RIEDMANN and WELCH, Judges.
       WELCH, Judge.
                                     I. INTRODUCTION
        Desirae A. Rein appeals her convictions of possession of 10 to 27 grams of
methamphetamine with the intent to distribute, enhanced to a Class IC felony for possession of a
firearm; obstructing a peace officer, a Class I misdemeanor; and carrying a concealed weapon, a
Class I misdemeanor. She challenges the evidence as insufficient to support her convictions and
contends that her misdemeanor sentences are excessive. We find no merit to these arguments and
therefore affirm.
                                 II. STATEMENT OF FACTS
       On January 20, 2016, Officer Bryan Martinez stopped a car for having “fictitious plates.”
Upon determining that there were four people in the car moving around in a suspicious manner,
Martinez called for backup. Martinez contacted the driver, George Valles, who was unable to



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produce identification, insurance, or other evidence of vehicle ownership. Rein was sitting in the
front passenger seat, and two other persons were sitting in the back seat. Martinez asked Valles to
step out of the car, but he refused.
        After Martinez threatened to remove him, Valles began exiting the car. At that time, Officer
James Combs arrived and advised that Valles had a knife in his pocket. Although Martinez told
him not to reach for the knife, Valles grabbed the knife, gave it to Martinez, and dove back into
the car. Combs moved into position to assist Martinez in removing Valles from the car. While
pulling Valles out of the car, Combs observed Rein reach into Valles’ waistband, and Combs
instructed her to stop. Combs testified that his hand was on Valles’ hip, and he felt Rein reach
“under [his] hands,” and when he moved his hand to the area where Rein had been reaching, he
felt a gun in Valles’ waistband. Combs testified that he could “feel [Rein] extract that from the
hip.” After Rein pulled her arm back, Combs saw her hand move under her purse which was
located partially on top of the center console and partially on top of the edge of her seat. Combs
eventually located a gun in the passenger compartment of the vehicle between the center console
and Rein’s seat.
        After removing Valles from the car, Martinez testified that Combs told him that he had felt
a gun on Valles. Officer Matthew Broderick and Investigator Rob Kiesel arrived to assist Combs
and removed the other passengers from the car. According to Combs, when Rein exited the car she
said “grab my purse, it’s in my purse.” Broderick searched Rein’s purse and found a camera bag
with “maybe 50” small bags inside, two of which contained methamphetamine, measuring
approximately 14 grams between the two bags.
        Combs also located a briefcase under the front passenger seat floorboard beneath where
Rein had been sitting. The briefcase contained precious and collectible coins, a digital scale “with
a crystalized residue on the scale,” and an “asp,” which is a collapsible baton similar to the batons
used by police. According to Combs, an asp baton can be used for “joint strikes, . . . choke lids
(phonetic) . . . comcranial (phonetic) and nerve bundles you are going to hit and you would cause
quite a bit of damage.”
        Rein was charged in the Scotts Bluff County District Court with possessing 10 to 27 grams
of methamphetamine with intent to distribute while possessing a firearm, a Class IC felony, in
violation of Neb. Rev. Stat. § 28-416(1) and (16) (Cum. Supp. 2015); obstructing a peace officer,
a Class I misdemeanor, in violation of Neb. Rev. Stat. § 28-906 (Reissue 2016); and carrying a
concealed weapon, a Class I misdemeanor, in violation of Neb. Rev. Stat. § 28-1202 (Reissue
2016). A jury trial was held on April 24, 2017.
        Kiesel testified that he was a member of the “WING Drug Task Force,” for which he had
received special training. He testified that possession of the digital scale, a quantity of small bags,
and more than a few grams of methamphetamine were all indications of a methamphetamine
dealer. According to his experience and training, the gun and baton were consistent with what a
drug dealer would likely carry for self-defense. He also testified that possession of an “eight-ball
[3.5 grams of methamphetamine]” is indicative of a “big time distributor.” He explained that
dealers may even get suspicious if someone wants to buy more than 3.5 grams unless it is clear
that the amount was being purchased for resale.
        Rein admitted to owning the purse, some of the coins, and to partial ownership of the scale,
which she claimed was used to weigh coins. She stated the briefcase belonged to Valles, and it


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was in the car because he had taken it to show coins to his father earlier that day. She denied any
knowledge of the camera case, methamphetamine, or asp baton.
        The jury found Rein guilty of possession of methamphetamine with intent to distribute,
enhanced for possession of a firearm; obstructing a police officer; and carrying a concealed
weapon. The court sentenced Rein to 5 to 6 years’ imprisonment for the enhanced possession of
methamphetamine with intent to distribute conviction with credit for 2 days served. The court
sentenced her to 0 to 1 year’s imprisonment for obstructing a peace officer with no credit for time
served. The court also sentenced Rein to 0 to 1 year’s imprisonment on her conviction for carrying
a concealed weapon with credit for 2 days served. The sentences on the methamphetamine
possession and carrying a concealed weapon were ordered to be served concurrently, but ordered
to be served consecutively to the sentence imposed for obstructing a peace officer. Rein has timely
appealed to this court and is represented by the same counsel as represented her at trial and
sentencing.
                                 III. ASSIGNMENTS OF ERROR
       Rein assigns that the evidence presented by the State was insufficient to support her
convictions and that the sentence imposed on her in connection with her misdemeanors was
excessive, constituting an abuse of discretion.
                                  IV. STANDARD OF REVIEW
        In reviewing a criminal conviction for a sufficiency of the evidence claim, an appellate
court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. State v. Casterline, 293 Neb. 41, 878 N.W.2d
38 (2016). The relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id.
        An appellate court will not disturb a sentence imposed within the statutory limits absent an
abuse of discretion by the trial court. State v. Dill, 300 Neb. 344, 913 N.W.2d 470 (2018). An
abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or
unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id.
                                          V. ANALYSIS
                                   1. SUFFICIENCY OF EVIDENCE
        Rein contends that the evidence was insufficient to support her convictions. Rein argues
“that inconsistent statements by officers regarding critical events and observations made by them
during their investigation at this traffic stop would prevent any rational trier of fact from being
able to find that these offenses were established beyond a reasonable doubt.” Brief for appellant at
15. As we previously stated, in reviewing a criminal conviction for a sufficiency of the evidence
claim, an appellate court does not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the finder of fact. State v. Casterline,
supra. We will review the sufficiency of the evidence in connection with each count in which Rein
was convicted.



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                          (a) Enhanced Possession of Methamphetamine
                                    With Intent to Distribute
        It is unlawful for any person to knowingly or intentionally possess a controlled substance
with the intent to distribute. Neb. Rev. Stat. § 28-416(1) (Cum. Supp. 2015). If the controlled
substance is methamphetamine, at least 10 but less than 28 grams, possession is a class ID felony.
§ 28-416(10). The penalty is enhanced for a “person knowingly or intentionally possessing a
firearm while in violation of subsection (1),” and an offense under § 28-416(1) that would be a
class ID felony without a firearm becomes a class IC felony. § 28-416(16).
        Constructive possession of an illegal substance may be proven by direct or circumstantial
evidence and may be shown by the accused’s proximity to the substance at the time of arrest or by
a showing of dominion over the substance. State v. Zitterkopf, 236 Neb. 743, 463 N.W.2d 616
(1990). Circumstantial evidence to establish that possession of a controlled substance was with
intent to distribute or deliver may consist of the quantity of the substance, the equipment and
supplies found with it; the place it was found; the manner of packaging; and the testimony of
witnesses experienced and knowledgeable in the field. Id.
        In Zitterkopf, the court summarized the controlling evidentiary factors that resulted in its
refusal to grant a directed verdict for the defendant on a possession with intent to distribute charge.
        On account of the quantity of marijuana found at the Zitterkopf residence, the type of
        marijuana packaging, the equipment and supplies found near the marijuana, and the
        testimony of officers who are trained and experienced in enforcing the laws regarding
        controlled substances, the district court properly overruled the motions for directed verdicts
        on the issue of the Zitterkopfs’ intent to distribute.

Id., 236 Neb. at 749, 463 N.W.2d at 621 (1990).
        Viewing the evidence in the light most favorable to the State establishes that law
enforcement located 14 grams of methamphetamine and 50 small baggies in Rein’s purse. The
methamphetamine was not only in close proximity to her, it was in her own purse. While she
claimed to be ignorant of the drug’s presence, she provided no explanation of how or why it found
its way into her possession. This is enough to support a finding that she was in possession of the
methamphetamine.
        Every indicator associated with intent to distribute listed in Zitterkopf is present in this
case. The quantity of methamphetamine that she possessed is four times the amount that Keisel
associated with a “big time dealer.” The methamphetamine was accompanied with approximately
50 bags which Kiesel attributed to dealing and distribution. The officer also discovered equipment
and supplies near the drugs, including, but not limited to, a scale with dried residue and an asp
baton. Testimony at trial indicated that the scale was the type a drug dealer would be expected to
possess and the asp baton is commonly used as a deadly weapon. Officer Keisel was highly trained
in narcotics enforcement, and provided significant testimony in support of Rein’s intent to
distribute. Taken together, the evidence was sufficient to support a finding of possession of a
controlled substance with intent to distribute.
        Further, the evidence was sufficient to support the enhancement of the offense for
knowingly or intentionally possessing a firearm while in violation of § 28-416(1). See



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§ 28-416(16). The evidence, when viewed in the light most favorable to the State, supports a
finding that Rein removed a gun from Valles’ waistband and stashed the gun between her seat and
the center console. Although Rein attempted to provide an alternative explanation, when the
evidence is viewed in the light most favorable to the State, we cannot say a reasonable fact finder
could not conclude that Rein knowingly or intentionally possessed a firearm while she was in
violation of § 28-416(1), supporting the enhancement of her conviction from a Class ID felony to
a Class IC felony.
                                 (b) Carrying Concealed Weapon
        “Except as otherwise provided in this section, any person who carries a weapon or
weapons concealed on or about his or her person, such as a handgun, a knife, brass or iron knuckles,
or any other deadly weapon, commits the offense of carrying a concealed weapon.”
§ 28-1202(1)(a).
        Although the State’s brief argues that Rein concealed and carried the firearm found in the
vehicle, the amended information and jury instructions both alleged that the concealed weapon
was the asp baton. Additionally, during closing argument at trial, the State argued the carry a
concealed weapon offense related to the asp baton found in the briefcase near the passenger seat
where Rein was seated. Accordingly, we examine whether the evidence supports the jury’s finding
that Rein carried and concealed the asp baton.
        Viewing the evidence in the light most favorable to the State, the evidence established that
the asp baton was found in a briefcase in the front passenger seat floorboard beneath where Rein
had been sitting. This briefcase also contained coins and a digital scale, with residue, both of which
Rein admitted she owned. All of these items were near her purse which contained
methamphetamine as previously discussed. Although Rein argued the briefcase did not belong to
her, we cannot say that a reasonable factfinder could not conclude otherwise.
        This leaves only the question of whether the asp baton is a deadly weapon. “Deadly weapon
shall mean any . . . device . . . which in the manner it is used or intended to be used is capable of
producing death or serious bodily injury.” Neb. Rev. Stat. § 28-109(8) (Reissue 2016). “Serious
bodily injury” is “bodily injury which involves a substantial risk of death, or which involves
substantial risk of serious permanent disfigurement, or protracted loss or impairment of the
function of any part or organ of the body.” § 28-109(21). The evidence at trial established that an
asp baton can be used for “joint strikes . . . choke lids (phonetic) . . . comcranial (phonetic) and
nerve bundles you are going to hit and you would cause quite a bit of damage.” Because an asp
baton can be used to inflict bodily injury including causing “quite a bit of damage” to “nerve
bundles,” the evidence supports the jury’s determination that this weapon qualifies as a deadly
weapon. As such, the evidence supports Rein’s conviction for carrying a concealed weapon.
                                   (c) Obstructing Peace Officer
       Section 28-906, provides, in relevant part:
       A person commits the offense of obstructing a peace officer, when, by . . . physical
       interference . . . she intentionally obstructs, impairs, or hinders (a) the enforcement of the
       penal law or the preservation of the peace by a peace officer or judge acting under color of
       his or her official authority . . . .


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        Viewing the evidence in the light most favorable to the State, Rein reached over to Valles
while police officers were trying to remove him from the car, ignored their instructions, and slipped
a gun from his waistband. She disobeyed a police officer’s lawful orders in order to hide a deadly
weapon. This is sufficient to support a conclusion she intentionally interfered with the officers’
enforcement of the law.
                                     2. EXCESSIVE SENTENCE
         Rein claims that the sentences imposed on her Class I misdemeanor convictions were
excessive and an abuse of discretion. Class I misdemeanors carry a penalty of up to 1 year in
prison, a $1,000 fine, or both. See Neb. Rev. Stat. § 28-106 (Reissue 2016). Her sentences of 0 to
1 year’s imprisonment for each misdemeanor conviction are within the statutory sentencing range.
Further, it is the minimum portion of an indeterminate sentence which measures its severity. State
v. Haynie, 239 Neb. 478, 476 N.W.2d 905 (1991); State v. Tillman, 1 Neb. App. 585, 511 N.W.2d
128 (1993).
         Where a sentence imposed within the statutory limits is alleged on appeal to be excessive,
the appellate court must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable legal principles in
determining the sentence to be imposed. State v. Stone, 298 Neb. 53, 902 N.W.2d 197 (2017).
When imposing a sentence, the sentencing judge should consider the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the
nature of the offense and (8) the violence involved in the commission of the offense. See id. The
appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing
judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances
surrounding the defendant’s life. State v. Chacon, 296 Neb. 203, 894 N.W.2d 238 (2017).
         The court noted her fairly minor criminal history, her education that would allow her to
work in various fields, her age, her background, and the level of violence involved. The court
discussed the serious nature of the crime and the damage it causes to society. He also noted that
there was no excuse, no victim who facilitated the crime, and that her attitude toward changing her
life was poor. Upon our review of the record and consideration of the relevant sentencing factors
in this case, we find the district court did not abuse its discretion in sentencing Rein.
                                        VI. CONCLUSION
        Because we find sufficient evidence to support the jury’s verdicts and find no abuse of
discretion in her sentences, we affirm.
                                                                                     AFFIRMED.




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