            Decisions      of the   Nebraska Court of Appeals
	                                 STATE v. CLARK	581
	                              Cite as 21 Neb. App. 581

order without showing sufficient justification, and the court
granted Husker Concrete’s motion for sanctions, dismissing
the case. Upon our review, we find this was not an abuse of
discretion following Gonzalez’ failure to comply with the dis-
trict court’s orders and the rules of discovery.
                      CONCLUSION
   We find the district court did not abuse its discretion
in determining that sanctions were appropriate under the
circumstances and granting default judgment in favor of
Husker Concrete.
                                               Affirmed.



                      State of Nebraska, appellee, v.
                        Aaron J. Clark, appellant.
                                    ___ N.W.2d ___

                      Filed December 31, 2013.      No. A-13-017.

 1.	 Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
      Error. In reviewing a trial court’s ruling on a motion to suppress based on a
      claimed violation of the Fourth Amendment, an appellate court applies a two-part
      standard of review. Regarding historical facts, an appellate court reviews the trial
      court’s finding for clear error. But whether those facts trigger or violate Fourth
      Amendment protections is a question of law that an appellate court reviews inde-
      pendently of the trial court’s determination.
 2.	 Trial: Joinder: Appeal and Error. A trial court’s ruling on a motion for consoli-
      dation of prosecutions properly joinable will not be disturbed on appeal absent an
      abuse of discretion.
 3.	 Trial: Joinder: Proof: Appeal and Error. The burden is on the party chal-
      lenging a joint trial to demonstrate how and in what manner he or she was
      prejudiced.
 4.	 Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S.
      Constitution and article I, § 7, of the Nebraska Constitution protect individuals
      against unreasonable searches and seizures by the government.
  5.	 ____: ____. The Fourth Amendment to the U.S. Constitution and article I, § 7, of
      the Nebraska Constitution do not protect citizens from all governmental intrusion,
      but only from unreasonable intrusions.
 6.	 Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless
      searches and seizures are per se unreasonable under the Fourth Amendment, sub-
      ject only to a few specifically established and well-delineated exceptions, which
      must be strictly confined by their justifications.
   Decisions of the Nebraska Court of Appeals
582	21 NEBRASKA APPELLATE REPORTS


 7.	 Warrantless Searches: Probable Cause. One of the exceptions to warrantless
     searches and seizures is a search or seizure supported by probable cause.
 8.	 Criminal Law: Search and Seizure: Probable Cause: Police Officers and
     Sheriffs: Motor Vehicles. The odor of marijuana emanating from a vehicle pro-
     vides probable cause to search the vehicle and arrest the occupants where there is
     sufficient foundation as to the expertise of the officer.
 9.	 Trial: Joinder. There is no constitutional right to a separate trial. The right
     is statutory and depends upon a showing that prejudice will result from a
     joint trial.
10.	 Trial: Joinder: Proof. The burden is on the party challenging a joint trial to
     demonstrate how and in what manner he or she was prejudiced.
11.	 Trial: Joinder: Indictments and Informations. The propriety of a joint
     trial involves two questions: whether the consolidation is proper because the
     defend­ nts could have been joined in the same indictment or information, and
             a
     whether there was a right to severance because the defendants or the State
     would be prejudiced by an otherwise proper consolidation of the prosecutions
     for trial.
12.	 Trial: Joinder. Consolidation is proper if the offenses are part of a factu-
     ally related transaction or series of events in which both of the defend­
     ants participated.

  Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.

  Thomas C. Riley, Douglas County Public Defender, and
Leslie E. Cavanaugh for appellant.

  Jon Bruning, Attorney General, and Carrie A. Thober for
appellee.

   Inbody, Chief Judge, and Irwin and Moore, Judges.

   P er Curiam.
                       INTRODUCTION
   Aaron J. Clark appeals his conviction in the district court
for Douglas County for possession with intent to deliver mari-
juana. He argues that the district court should have suppressed
evidence found in the vehicle he was driving, because police
lacked probable cause to arrest him and conduct the search. He
also argues that the trial court erred in consolidating his trial
with that of his codefendant, because he was prejudiced by the
consolidation. Because we find no merit to Clark’s arguments
on appeal, we affirm.
         Decisions   of the  Nebraska Court of Appeals
	                          STATE v. CLARK	583
	                       Cite as 21 Neb. App. 581

                         BACKGROUND
   On March 15, 2011, Omaha police officers Joseph Mraz and
Cody Baines were patrolling the area of Park and Woolworth
Avenues in Omaha, Nebraska. The officers consider this a
“high-crime area” with a lot of prostitution, drug activity,
motor vehicle theft, and graffiti. Around 12:37 a.m., the offi-
cers noticed a 2008 Dodge Avenger traveling north on Park
Avenue. The Avenger turned into an apartment complex in the
area, but the officers did not follow and continued on their
way. Several minutes later, the officers observed the Avenger
again, this time traveling eastbound on Poppleton Avenue.
Officer Mraz, who was driving the police cruiser, observed the
Avenger turn right onto Park Avenue without using a turn sig-
nal. The officers initiated a traffic stop using emergency lights,
spotlights, and “takedown” lights.
   Officer Mraz approached the driver’s side of the Avenger,
while Officer Baines approached the passenger side. The driver,
later identified as Clark, rolled down his window as the offi-
cers approached, and Officer Mraz detected the odor of mari-
juana coming from the Avenger. As Officer Mraz was asking
Clark for his driver’s license and vehicle registration, Officer
Baines shined his flashlight into the back seat and observed a
clear, gallon-sized plastic baggie on the floor that appeared to
contain marijuana. Officer Baines then instructed Officer Mraz
to have Clark exit the vehicle because there was marijuana in
the back seat.
   Officer Mraz got Clark out of the vehicle and placed him
in handcuffs. He searched Clark and found $1,720 in cash in
Clark’s pockets. Officer Mraz then put Clark in the back of the
police cruiser. At the same time, Officer Baines got the passen-
ger, later identified as Jeron Morris, out of the vehicle, placed
him in handcuffs, and put him in the back of another police
cruiser that had arrived at the scene.
   After the officers had secured Clark and Morris, Officer
Baines removed the baggie from the back seat and verified,
through look and smell, that the substance inside the bag-
gie was marijuana. The officers then searched the rest of the
Avenger. A digital scale with marijuana residue on it was
discovered in the center console. The officers found another
   Decisions of the Nebraska Court of Appeals
584	21 NEBRASKA APPELLATE REPORTS



gallon-sized plastic baggie in the trunk that contained a larger
amount of marijuana. Subsequent testing confirmed that the
substance in both baggies was, in fact, marijuana, and the total
amount was nearly 11⁄2 pounds. Clark and Morris were both
charged with possession with intent to deliver marijuana.
   Prior to trial, the State moved to consolidate Clark’s case
with Morris’ case. Over objections by both defendants, the
district court granted the motion. Also prior to trial, Clark
filed a motion to suppress the evidence found in the Avenger.
After a suppression hearing, the district court overruled
Clark’s motion.
   Officers Mraz and Baines testified at trial. As of the time of
trial, both officers had been with the Omaha Police Department
for approximately 7 years. Each officer testified that he had
received training on the smell of marijuana while at the police
academy and had come in contact with marijuana during his
work as a police officer. Specifically, Officer Baines testified
that he had come in contact with marijuana more than 100
times in his 7-year career. Officer Mraz stated that he “couldn’t
even put a number” on how many times he had come in contact
with marijuana during his career, but that it had been “[m]any,
many times.”
   At the close of the State’s case in chief, Clark moved for
a mistrial on the basis that his case and Morris’ case should
not have been joined together. Clark argued that the questions
asked by Morris’ counsel of “the officer” damaged both Morris
and Clark and that there was nothing Clark could do about it
because the trials had been consolidated. The court overruled
the motion. Clark was found guilty of the charged offense and
sentenced to 1 to 2 years’ imprisonment.

                  ASSIGNMENTS OF ERROR
   Clark assigns that the district court erred in (1) failing to
grant his motion to suppress and (2) failing to grant separate
trials to Clark and Morris.

                  STANDARD OF REVIEW
   [1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
        Decisions   of the  Nebraska Court of Appeals
	                         STATE v. CLARK	585
	                      Cite as 21 Neb. App. 581

we apply a two-part standard of review. Regarding historical
facts, we review the trial court’s finding for clear error. But
whether those facts trigger or violate Fourth Amendment pro-
tections is a question of law that we review independently of
the trial court’s determination. State v. Alarcon-Chavez, 284
Neb. 322, 821 N.W.2d 359 (2012).
   [2,3] A trial court’s ruling on a motion for consolidation of
prosecutions properly joinable will not be disturbed on appeal
absent an abuse of discretion. State v. McPherson, 266 Neb.
715, 668 N.W.2d 488 (2003). The burden is on the party chal-
lenging a joint trial to demonstrate how and in what manner he
or she was prejudiced. Id.
                           ANALYSIS
Motion to Suppress.
   Clark argues that the district court erred in failing to grant
his motion to suppress. He claims that his arrest and the search
of the Avenger were unlawful, because the officers lacked
probable cause at the time. We disagree.
   [4-7] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution protect individuals
against unreasonable searches and seizures by the govern-
ment. State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010).
These constitutional provisions do not protect citizens from
all governmental intrusion, but only from unreasonable intru-
sions. See id. Warrantless searches and seizures are per se
unreasonable under the Fourth Amendment, subject only to a
few specifically established and well-delineated exceptions,
which must be strictly confined by their justifications. Smith,
supra. One of the exceptions to warrantless searches and
seizures is a search or seizure supported by probable cause.
See id.
   [8] The Nebraska Supreme Court has held that the odor of
marijuana emanating from a vehicle provides probable cause
to search the vehicle and arrest the occupants where there is
sufficient foundation as to the expertise of the officer. See
State v. Daly, 202 Neb. 217, 274 N.W.2d 557 (1979). In Daly,
the court upheld the search of a vehicle conducted after an
officer stopped the vehicle for speeding and smelled marijuana
   Decisions of the Nebraska Court of Appeals
586	21 NEBRASKA APPELLATE REPORTS



coming from inside the vehicle. At trial, the officer testified
that he had been a member of law enforcement for over 2 years
at the time of the traffic stop and had received instruction in
drug recognition, including marijuana, during basic training
and on-the-job training. The officer also stated that he had
made approximately 50 prior similar arrests for possession of
marijuana, wherein he stopped a vehicle for a traffic violation
and smelled marijuana.
   Likewise, in this case, there was sufficient foundation as
to the expertise of the officers to justify a finding of prob-
able cause. Both officers have been with law enforcement
for approximately 7 years. They received training on mari-
juana detection while at the police academy and have come
in contact with marijuana numerous times while on the job.
Officer Mraz testified that he smelled the odor of marijuana
as Clark rolled down the window. Thus, this evidence alone
was sufficient to support the seizure of Clark and the search
of the vehicle.
   The probable cause in this case, however, went beyond
merely the odor of marijuana, because Officer Baines observed
marijuana in the vehicle before Clark was arrested or the
vehicle was searched. Officer Baines testified that he observed
the marijuana in the back seat as Officer Mraz was talking with
Clark. Officer Baines then told Officer Mraz that there was
marijuana in the back seat and asked him to remove Clark from
the vehicle. Based upon this evidence, we conclude that the
officers had sufficient probable cause to arrest Clark and search
the Avenger. As such, the district court did not err in overruling
Clark’s motion to suppress.

Consolidation of Trials.
   Clark assigns that the district court erred in failing to grant
Morris and him separate trials. We note for the record that the
trials were consolidated upon a motion by the State, which
motion the district court granted over objections from Clark
and Morris. Thus, we understand Clark to be challenging the
joinder of his trial with that of Morris.
         Decisions   of the  Nebraska Court of Appeals
	                          STATE v. CLARK	587
	                       Cite as 21 Neb. App. 581

   [9-11] The consolidation of separate cases is governed by
Neb. Rev. Stat. § 29-2002 (Reissue 2008), which provides:
         (2) The court may order two or more indictments,
      informations, or complaints . . . if the defendants, if there
      is more than one, are alleged to have participated in the
      same act or transaction or in the same series of acts or
      transactions constituting an offense or offenses. The pro-
      cedure shall be the same as if the prosecution were under
      such single indictment, information, or complaint.
There is no constitutional right to a separate trial. The right
is statutory and depends upon a showing that prejudice will
result from a joint trial. State v. McPherson, 266 Neb. 715,
668 N.W.2d 488 (2003). The burden is on the party challeng-
ing a joint trial to demonstrate how and in what manner he or
she was prejudiced. Id. The propriety of a joint trial involves
two questions: whether the consolidation is proper because
the defendants could have been joined in the same indictment
or information, and whether there was a right to severance
because the defendants or the State would be prejudiced by an
otherwise proper consolidation of the prosecutions for trial. Id.
We conclude that the trial court did not abuse its discretion in
consolidating the trials of Clark and Morris.
   [12] Consolidation is proper if the offenses are part of a fac-
tually related transaction or series of events in which both of
the defendants participated. Id. There is no dispute that joinder
was proper in the present case. Both defendants were charged
with the same offense arising out of the same incident, and
Clark concedes as much in his brief. Therefore, consolidation
was proper.
   We therefore turn to the second question: Would the defend­
ants be prejudiced by the consolidation? In challenging con-
solidation, it was incumbent upon Clark to demonstrate how
he would be prejudiced by the consolidation. Clark argues
that he was prejudiced by Morris’ counsel’s accusing him
of the crime while asserting that Morris was an innocent
bystander and that through Morris’ antagonistic defense strat-
egy and prejudicial cross-examination of witnesses, Morris
   Decisions of the Nebraska Court of Appeals
588	21 NEBRASKA APPELLATE REPORTS



was “relieving the State of establishing [its] burden.” Brief for
appellant at 12. In addition, Clark argues that he was preju-
diced because the evidence was insufficient to convict him
without help from Morris’ counsel as evidenced by the fact
that the jury acquitted Morris.
   The Nebraska Supreme Court recently addressed this issue
in State v. Foster, 286 Neb. 826, ___ N.W.2d ___ (2013). In
Foster, the trial court granted the State’s motion to consolidate
Jeremy D. Foster’s trial with that of his codefendant. Foster
and his codefendant each moved to sever the trials, arguing that
both defendants would “‘point the finger’” at each other. Id. at
829, ___ N.W.2d at ___. The court overruled the motions, and
the trials were held jointly.
   On appeal, Foster argued, inter alia, that he was preju-
diced by the joint trial because his defense was irreconcilable
with and mutually exclusive of his codefendant’s defense. The
Foster court, citing Zafiro v. United States, 506 U.S. 534, 113
S. Ct. 933, 122 L. Ed. 2d 317 (1993), iterated that the exis-
tence of mutually antagonistic defenses is not prejudicial per
se. Accordingly, even a defendant who is arguing that the exis-
tence of mutually exclusive or antagonistic defenses resulted
in prejudice entitling him or her to severance must meet the
high burden of showing that “‘joint trial would compromise
a specific trial right of one of the defendants, or prevent the
jury from making a reliable judgment about guilt or inno-
cence.’” Foster, 286 Neb. at 840, ___ N.W.2d at ___ (quoting
Zafiro, supra).
   The Foster court also noted that “on the whole, the federal
circuit courts have repeatedly found that defenses that are
based on ‘finger pointing’ do not result in prejudice sufficient
to mandate severance.” 286 Neb. at 841, ___ N.W.2d at ___. In
order to be entitled to severance based on mutually exclusive
defenses, the defendant must show real prejudice, rather than
merely note that each defendant is trying to exculpate himself
while inculpating the other. Foster, supra.
   The Foster court concluded that the codefendants’ defenses
were not so mutually exclusive so as to entitle them to sever-
ance, because the jury was presented with a scenario where it
        Decisions   of the  Nebraska Court of Appeals
	                         STATE v. CLARK	589
	                      Cite as 21 Neb. App. 581

could acquit one defendant based on his defense of innocence
without simultaneously rejecting the defense of the other.
Similarly, the court found that the defenses were not suf-
ficiently antagonistic to merit severance, because they were
no more than mere “finger pointing,” which is insufficient
to require separate trials. Finally, the court determined that
despite the codefendants’ “finger pointing,” the State still
adduced sufficient evidence for the jury to find both defend­
ants guilty.
   The Eighth Circuit has applied a similar standard for preju-
dice, concluding that the mere fact that one defendant tries to
shift blame to another defendant does not mandate separate
trials, as a codefendant frequently attempts to “‘“point the
finger,” to shift the blame, or to save himself at the expense of
the other.’” U.S. v. Flores, 362 F.3d 1030, 1040 (8th Cir. 2004).
The Eighth Circuit also noted that a defendant does not have
a right against having his codefendant elicit testimony which
may be damaging to him. Id.
   Even if there is some risk of prejudice that resulted from
the joint trials, it can be cured with proper jury instructions.
See Zafiro, supra. The Zafiro jury was instructed that the
government had the burden of proving beyond a reasonable
doubt that each defendant committed the crimes with which
he was charged, that the jury must give separate consideration
to each defendant and the charge against him, and that each
defendant was entitled to have his case determined from his
own conduct and from the evidence applicable against him.
Finally, the district court had admonished the jury that open-
ing and closing arguments were not evidence. On appeal, the
Supreme Court found that these instructions sufficed to cure
any possibility of prejudice.
   Turning back to the case at hand, we conclude that Clark
has failed to show that he was prejudiced by the joint trial
based on Morris’ antagonistic defense strategy and prejudicial
cross-examination of witnesses. The fact that Morris “pointed
the finger” at Clark and elicited testimony that was damaging
to Clark does not establish that Clark was entitled to a sepa-
rate trial, because their defenses were not mutually exclusive.
   Decisions of the Nebraska Court of Appeals
590	21 NEBRASKA APPELLATE REPORTS



The jury could have found that neither Clark nor Morris pos-
sessed the marijuana, that only one of them had possession of
it, or that they were both in possession of it. In other words,
the jury’s belief of Morris’ claim of innocence did not neces-
sarily lead to the conclusion that Clark’s claim of innocence
was false.
    In addition, the evidence presented by the State alone was
sufficient to support Clark’s conviction, because the State
established that Clark was the driver of the vehicle, the vehicle
was registered to Clark’s girlfriend, and the money was found
in Clark’s pocket. The State also elicited testimony from an
Omaha police officer in the narcotics unit that the amount of
marijuana found in the Avenger was consistent with distribu-
tion as opposed to personal use. Accordingly, Clark’s and
Morris’ defenses were not prejudicial so as to require sepa-
rate trials.
    Moreover, the jury instructions were sufficient to cure any
risk of prejudice that may have been present here. Similar to
the instructions in Zafiro v. United States, 506 U.S. 534, 113
S. Ct. 933, 122 L. Ed. 2d 317 (1993), the jury in this case was
instructed that it must come to a separate decision regarding
each defendant, that it must find each defendant not guilty
unless and until it decided that the State had proved him guilty
beyond a reasonable doubt, that the State has the burden of
proving beyond a reasonable doubt each and every element of
the crime, and that the statements and arguments of the law-
yers are not evidence. As such, Clark has not met his burden
of showing that he was prejudiced by the joint trial, and this
assignment of error is without merit.
                       CONCLUSION
   We conclude that the arrest of Clark and the search of the
Avenger were undertaken with probable cause, because the
officers smelled marijuana coming from the vehicle and saw
a baggie full of marijuana on the floor of the back seat prior
to the arrest and search. Thus, the district court did not err
in overruling Clark’s motion to suppress. Additionally, we
find that Clark has failed to establish how consolidating his
trial with that of Morris prejudiced him, and therefore, the
            Decisions     of the Nebraska Court of Appeals
	                      IN RE INTEREST OF SHANE L. ET AL.	591
	                             Cite as 21 Neb. App. 591

district court did not abuse its discretion in granting the State’s
motion to consolidate. Accordingly, we affirm Clark’s convic-
tion and sentence.
                                                       Affirmed.



                    In   re I nterest of
                                  Shane L. et al.,
                                 18 years of age.
                     children under
         State of Nebraska, appellee and cross-appellee,
            v. A manda L., appellant, and Cameron L.,
                   appellee and cross-appellant.
                                     ___ N.W.2d ___

            Filed December 31, 2013.       Nos. A-13-380 through A-13-383.

 1.	 Juvenile Courts: Judgments: Appeal and Error. Cases arising under the
      Nebraska Juvenile Code are reviewed de novo on the record, and an appellate
      court is required to reach a conclusion independent of the trial court’s findings.
      In reviewing questions of law arising in such proceedings, an appellate court
      reaches a conclusion independent of the lower court’s ruling.
 2.	 Jurisdiction: Appeal and Error. A jurisdictional question which does not
      involve a factual dispute is determined by an appellate court as a matter of law.
  3.	 ____: ____. Before reaching the legal issues presented for review, an appellate
      court must determine whether it has jurisdiction.
 4.	 Final Orders: Appeal and Error. There are three types of final orders that
      may be reviewed on appeal: (1) an order which affects a substantial right and
      which determines the action and prevents a judgment, (2) an order affecting a
      substantial right made during a special proceeding, and (3) an order affecting a
      substantial right made upon summary application in an action after a judgment
      is rendered.
 5.	 Indian Child Welfare Act: Jurisdiction: Final Orders. An order denying a
      transfer of a case to tribal court affects a substantial right in a special proceeding
      and is, therefore, a final, appealable order.
 6.	 Jurisdiction: Final Orders: Time: Notice: Appeal and Error. In order to vest
      an appellate court with jurisdiction, a notice of appeal must be filed within 30
      days of the entry of the final order.
 7.	 Final Orders: Time: Appeal and Error. If a party fails to timely perfect an
      appeal of a final order, he or she is precluded from asserting any errors on appeal
      resulting from that order.
 8.	 Parental Rights: Proof. To terminate parental rights, the State must prove by
      clear and convincing evidence that one or more of the statutory grounds listed in
      Neb. Rev. Stat. § 43-292 (Cum. Supp. 2012) have been satisfied and that termina-
      tion is in the child’s best interests.
