State v. Reinhart

The trial court’s obvious focus on the viciousness of this attack
is understandable, as is the sentence the court imposed. We
cannot say that the trial court abused its discretion.
IV. CONCLUSION
During Bauldwin’s 2009 statement, he clearly invoked his
right to remain silent, which the police failed to scrupulously
honor. The trial court’s admission of Bauldwin’s 2009 state-
ment was error, but it was harmless. We find no merit to
Bauldwin’s other assigned errors, and so we affirm his convic-
tion and sentence.
A ffirmed.
Wright, J., not participating.
StAte of NebrASkA, Appellee , v.
brANdoN d. reiNhArt, AppellANt.
811 N.W.2d 258
Filed April 20, 2012. 	No. S-11-464.
1. Convictions: Evidence: Appeal and Error. When reviewing a criminal convic-
tion for sufficiency of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.
2. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court reviews for clear error the factual
findings underpinning a trial court’s hearsay ruling and reviews de novo the
court’s ultimate determination to admit evidence over a hearsay objection.
3. Effectiveness of Counsel. A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact.
4. Effectiveness of Counsel: Appeal and Error. Whether counsel was deficient and
whether the defendant was prejudiced are questions of law that an appellate court
reviews independently of the lower court’s decision.
5. Constitutional Law: Appeal and Error. A constitutional issue not presented to
or passed upon by the trial court is not appropriate for consideration on appeal.
6. Rules of Evidence: Hearsay: Proof. Hearsay is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
7. Hearsay. A statement is not hearsay if it is offered against a party and is his own
statement, in either his individual or a representative capacity.
710 	283 NeBrASkA repOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

8. Trial: Evidence: Juries: Appeal and Error. evidentiary error is harmless when
improper admission of evidence did not materially influence the jury to reach a
verdict adverse to substantial rights of the defendant.
9. Verdicts: Juries: Appeal and Error. Harmless error review looks to the basis
on which the jury actually rested its verdict; the inquiry is not whether in a trial
that occurred without the error a guilty verdict would surely have been rendered,
but, rather, whether the actual guilty verdict rendered in the questioned trial was
surely unattributable to the error.
10. Trial: Evidence: Appeal and Error. Given the strength of other evidence pre-
sented by the State, erroneously admitted evidence can be harmless.
11. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective assistance
of counsel under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.
ed. 2d 674 (1984), the defendant must show that counsel’s performance was defi-
cient and that this deficient performance actually prejudiced his or her defense.
12. ____: ____. To show prejudice, the defendant must demonstrate a reasonable
probability that but for counsel’s deficient performance, the result of the proceed-
ing would have been different.
13. Words and Phrases. A reasonable probability is a probability sufficient to under-
mine confidence in the outcome.
Appeal from the District Court for Boone County: michAel
J. oWeNS, Judge. Affirmed.
Jerrod p. Jaeger, of Jaeger Law Office, p.C., L.L.O., for
appellant.
Jon Bruning, Attorney General, Carrie A. Thober, and James
D. Smith for appellee.
heAvicAN, c.J., Wright, coNNolly, StephAN, mccormAck ,
and miller-lermAN, JJ.
Wright, J.
NATUre OF CASe
Brandon D. reinhart was charged with using a minor to dis-
tribute a controlled substance and conspiracy to use a minor to
distribute a controlled substance, specifically marijuana. A jury
convicted him on both counts, and he was sentenced to 3 to 5
years’ imprisonment on each conviction, with the sentences to
run concurrently. reinhart appeals.
SCOpe OF reVIeW
[1] When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question for
STATe v. reINHArT 	711
Cite as 283 Neb. 710

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. State v. Nolan, ante p. 50, 807 N.W.2d 520
(2012). And in our review, we do not resolve conflicts in the
evidence, pass on the credibility of witnesses, or reweigh the
evidence. Those matters are for the finder of fact. Id.
[2] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination to admit evidence over a
hearsay objection. See State v. McCave, 282 Neb. 500, 805
N.W.2d 290 (2011).
[3,4] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact. State v.
Dunkin, ante p. 30, 807 N.W.2d 744 (2012). Whether counsel
was deficient and whether the defendant was prejudiced are
questions of law that we review independently of the lower
court’s decision. See, id.; State v. Gonzalez, ante p. 1, 807
N.W.2d 759 (2012).
FACTS
In July 2008, State patrol Trooper Timothy Stopak received
a call from Micah Jennings and met Jennings at a cemetery
near Albion, Nebraska, to arrange a controlled purchase of
marijuana from reinhart. At the cemetery, Sheriff Dave Spiegel
searched Jennings’ vehicle and Stopak searched Jennings’ per-
son for money and contraband. After Jennings was searched,
Stopak placed two recording devices on Jennings and gave him
$120 in “recorded buy money.”
Jennings told Stopak that he had called B.L., his girlfriend,
who was at reinhart’s house and that B.L. had arranged for
Jennings to buy marijuana from reinhart at his house. B.L.
was 15 years old at the time. Stopak and Spiegel kept constant
visual contact with Jennings’ vehicle as they followed him to
reinhart’s house. Jennings was in the house for 5 to 10 min-
utes. He came out the same door through which he had entered,
got into his vehicle, and drove past Stopak and Spiegel. While
712 	283 NeBrASkA repOrTS

he was driving, Jennings called B.L. and spoke to reinhart on
B.L.’s telephone.
reinhart obtained an ounce of marijuana from his bedroom
and told B.L. that Jennings would be waiting at a local bike
shop. Jennings drove to the far north end of the bike shop park-
ing lot, and Stopak and Spiegel took up a surveillance position.
B.L. arrived by car, met Jennings, and gave him the marijuana.
Jennings gave B.L. two $50 bills and one $20 bill. Stopak saw
B.L. complete the drug deal with Jennings and leave. When
B.L. delivered the marijuana to Jennings, she did not know that
Jennings was working with Stopak.
Stopak and Spiegel then followed Jennings back to the
cemetery, where Jennings gave Stopak the package delivered
by B.L. Stopak and Spiegel again searched Jennings and his
vehicle for contraband and money, and Stopak recovered the
recording devices. Laboratory analysis confirmed the substance
in the package was marijuana. reinhart was charged with using
a minor to distribute a controlled substance and conspiracy to
use a minor to distribute a controlled substance.
At trial, reinhart took the stand, and although he admitted to
having smoked marijuana, he denied ever selling marijuana or
using B.L. to deliver marijuana. He also denied speaking with
Jennings on B.L.’s telephone and making an agreement to per-
sonally deliver marijuana to Jennings or to deliver marijuana to
Jennings through a third person.
The jury convicted reinhart of both counts. The trial court
sentenced reinhart to 3 to 5 years’ imprisonment on each
count, with the sentences to run concurrently and credit for 1
day served.
ASSIGNMeNTS OF errOr
On appeal, reinhart assigns four errors: (1) His convictions
and sentences for both use of a minor to distribute a controlled
substance and conspiracy to use a minor to distribute a con-
trolled substance violate the double jeopardy provisions of
the federal and state Constitutions, (2) there was insufficient
evidence to convict him of the charges, (3) the trial court erred
in overruling one of reinhart’s hearsay objections, and (4) trial
STATe v. reINHArT 	713
Cite as 283 Neb. 710

counsel was ineffective for failing to make appropriate hear-
say objections.
ANALYSIS
double JeopArdy
reinhart argues that his convictions and sentences for both
use of a minor to distribute a controlled substance and con-
spiracy to commit that offense violate his right to be free from
double jeopardy. However, he did not raise this claim in the
trial court.
[5] A constitutional issue not presented to or passed upon by
the trial court is not appropriate for consideration on appeal.
State v. Ford, 279 Neb. 453, 778 N.W.2d 473 (2010). Because
reinhart failed to raise this issue in the trial court, he has
waived his double jeopardy claim and we do not address it.
SufficieNcy of evideNce
reinhart alleges the evidence was insufficient to convict him
of the charges. When reviewing a criminal conviction for suf-
ficiency of the evidence to sustain the conviction, the relevant
question for an appellate court is whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. State v. Nolan, ante
p. 50, 807 N.W.2d 520 (2012). And in our review, we do not
resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence. Those matters are for the
finder of fact. Id.
reinhart was charged by information with one count of use
of a minor to distribute a controlled substance under Neb. rev.
Stat. § 28-416(5)(a) (reissue 2008) and one count of con-
spiracy under Neb. rev. Stat. § 28-202 (reissue 2008). Section
28-416(5)(a) states:
except as authorized by the Uniform Controlled Substances
Act, it shall be unlawful for any person eighteen years
of age or older to knowingly and intentionally employ,
hire, use, cause, persuade, coax, induce, entice, seduce,
or coerce any person under the age of eighteen years to
manufacture, transport, distribute, carry, deliver, dispense,
714 	283 NeBrASkA repOrTS

prepare for delivery, offer for delivery, or possess with
intent to do the same a controlled substance or a counter-
feit controlled substance.
This language requires the State to prove that the defendant
is someone (1) who is 18 years of age or older and (2) who
knowingly and intentionally (a) used a person under 18 years
of age in one of the ways listed (b) to perform one of the listed
acts related to drug distribution.
The evidence presented at trial provided a basis for the jury
to determine beyond a reasonable doubt that reinhart was
guilty. Stopak testified that reinhart was 19 years old when the
alleged drug transaction involving B.L. and Jennings occurred.
B.L. testified that she was 15 years old at the time. Jennings,
B.L., and Holly kelley (who was also at reinhart’s house that
day) all testified that B.L. delivered marijuana to Jennings.
The testimony of each of these witnesses indicated that B.L.
made the delivery at reinhart’s direction. B.L. testified that
“[reinhart] handed me the marijuana and he told me to go
to the bike shop because [Jennings] was going to be wait-
ing.” There was sufficient evidence for the jury to conclude
beyond a reasonable doubt that reinhart was guilty of violating
§ 28-416(5)(a).
Secton 28-202(1) states:
A person shall be guilty of criminal conspiracy if, with
intent 	to 	promote 	or 	facilitate 	the 	commission 	of 	a
felony:
(a) He agrees with one or more persons that they or one
or more of them shall engage in or solicit the conduct or
shall cause or solicit the result specified by the definition
of the offense; and
(b) He or another person with whom he conspired com-
mits an overt act in pursuance of the conspiracy.
The trial court instructed the jury that to find reinhart guilty
on this count, it had to find (1) that on or about July
25, 2008, reinhart agreed to sell marijuana to Jennings at
reinhart’s house; or (2) that on July 25, reinhart gave mari-
juana to a minor, B.L., which she delivered to Jennings; or
(3) that on July 25, Jennings gave B.L. money in exchange
for marijuana.
STATe v. reINHArT 	715
Cite as 283 Neb. 710

The testimony of both B.L. and kelley established that
reinhart gave B.L. marijuana to deliver to Jennings. The tes-
timony of Jennings and B.L. showed that Jennings gave B.L.
money in exchange for marijuana. Thus, the evidence was suf-
ficient to allow the jury to find that one of the acts necessary
for a criminal conspiracy had occurred.
The evidence also showed the existence of a felony, as
required by statute. The elements of using a minor to distribute
a controlled substance were satisfied, and when the controlled
substance is marijuana, as it was here, that crime is a felony.
See Neb. rev. Stat. § 28-405(c)(10) [Schedule I] (reissue
2008) and § 28-416(2) and (5)(c).
Yet for reinhart to be convicted of conspiracy, the evidence
had to show that he conspired with someone, which requires
an agreement. See § 28-202(1). The testimony of Jennings,
B.L., and kelley was consistent with B.L.’s willing agreement
to deliver marijuana. B.L. testified that she asked Jennings “if
he was going to snitch on us,” which she stated “he better not
do . . . because . . . that would be messed up.” This testimony
indicated that B.L. willingly participated with reinhart in the
drug deal. Viewing these facts in the light most favorable to the
prosecution, which this court does when determining whether
the evidence is sufficient to sustain the conviction, see State
v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011), there was
sufficient evidence to convict reinhart of use of a minor to
deliver a controlled substance as well as conspiracy to commit
that crime.
We note that at trial, defense counsel argued that witnesses
for the State “show[ed] a tremendous amount of bias.” He
claimed that Jennings was a drug dealer “attempting to work
off charges,” B.L. was engaged to Jennings at the time of
trial, and kelley, a friend of B.L., had not spoken to reinhart
for over a year. In our review, we do not resolve conflicts in
the evidence, pass on the credibility of witnesses, or reweigh
the evidence. Those matters are for the finder of fact. State v.
Nolan, ante p. 50, 807 N.W.2d 520 (2012). The jury chose to
believe Jennings, B.L., and kelley, and those witnesses pro-
vided sufficient evidence to convict reinhart. This assignment
of error has no merit.
716 	283 NeBrASkA repOrTS

A dmiSSioN of heArSAy evideNce
reinhart alleges that the trial court erred in admitting
a portion of Stopak’s testimony over a hearsay objection.
Stopak testified:
[Jennings] advised me that he had placed a phone call to
[B.L.], and that he then spoke with . . . reinhart, and that
a deal was set up where he would be met downtown, either
by . . . reinhart or by one of the two females located at
the residence to complete the drug transaction.
reinhart alleges that this statement was inadmissible hearsay.
His hearsay objection to this statement at trial was overruled.
[6,7] “Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Neb. rev.
Stat. § 27-801(3) (reissue 2008). reinhart made a statement to
Jennings. Jennings told Stopak about the statement, and then
Stopak testified about that statement. “Hearsay included within
hearsay is not excluded under the hearsay rule if each part of
the combined statements conforms with an exception to the
hearsay rule provided in these rules.” Neb. rev. Stat. § 27-805
(reissue 2008). A statement is not hearsay if it is offered
against a party and is his own statement, in either his individual
or a representative capacity. See § 27-801(4)(b). reinhart was
the defendant, and his statements would not be hearsay. Thus,
reinhart’s statement to Jennings was not hearsay.
[8-10] However, Jennings’ statement to Stopak about what
reinhart told Jennings was hearsay, and the trial court erred
in admitting this evidence. evidentiary error is harmless when
improper admission of evidence did not materially influence
the jury to reach a verdict adverse to substantial rights of
the defendant. State v. Ellis, 281 Neb. 571, 799 N.W.2d 267
(2011). Harmless error review looks to the basis on which the
jury actually rested its verdict; the inquiry is not whether in
a trial that occurred without the error a guilty verdict would
surely have been rendered, but, rather, whether the actual
guilty verdict rendered in the questioned trial was surely
unattributable to the error. State v. Gutierrez, 272 Neb. 995,
726 N.W.2d 542 (2007), abrogated on other grounds, State
v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). Given the
STATe v. reINHArT 	717
Cite as 283 Neb. 710

strength of other evidence presented by the State, we conclude
the erroneously admitted evidence was harmless. See State v.
Ellis, supra.
Stopak testified Jennings told him that “a deal was set up
where he would be met downtown, either by . . . reinhart or
by one of the two females located at the residence to complete
the drug transaction.” Other witnesses testified to these facts.
Jennings testified:
[State’s counsel]. At some point when you called [B.L.]
after you left the house, did you talk to [reinhart]?
[Jennings]. Yeah, briefly on the phone.
Q. What was that conversation?
A. Just asking him if I could get that so I could get
going back to work.
Q. And what’d he say to you?
A. Yeah, he’d send one of the girls down.
B.L. testified:
[Jennings] called me and asked me if we would go meet
them downtown. And I talked to [reinhart] about it and
then handed the phone to [reinhart] and they talked about
it. And after the conversation was done, [reinhart] handed
me the marijuana and he told me to go to the bike shop
because [Jennings] was going to be waiting.
kelley testified that “[Jennings] was coming to buy from
[reinhart]. [Jennings] said he was coming from work. [reinhart]
wouldn’t sell to him, he was paranoid. [Jennings] ended up
leaving. And about 30 minutes later, [reinhart] sent [B.L.] to
go deliver it for him.”
Stopak testified that a deal was arranged where someone,
either reinhart or “one of the girls,” would meet Jennings
downtown and complete the drug deal. The testimony of the
other witnesses showed that reinhart was not willing to sell
to Jennings at the house, that a conversation subsequently
occurred between reinhart and Jennings on the telephone, and
that following the conversation, reinhart gave B.L. marijuana
to deliver to Jennings. Thus, the inadmissible hearsay statement
by Stopak did not materially influence the jury to reach a ver-
dict adverse to reinhart’s substantial rights. Its admission was
harmless error. This assignment of error has no merit.
718 	283 NeBrASkA repOrTS

iNeffective ASSiStANce of couNSel
[11-13] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. ed. 2d 674 (1984), the defendant must show
that counsel’s performance was deficient and that this deficient
performance actually prejudiced his or her defense. State v.
Gonzalez, ante p. 1, 807 N.W.2d 759 (2012). To show preju-
dice, the defendant must demonstrate a reasonable probability
that but for counsel’s deficient performance, the result of the
proceeding would have been different. See State v. Hansen,
252 Neb. 489, 562 N.W.2d 840 (1997). A reasonable prob-
ability is a probability sufficient to undermine confidence in
the outcome. Id. Deficient performance and prejudice can be
addressed in either order. See id.
reinhart argues his trial counsel should have objected to
Stopak’s statements that (1) Jennings told Stopak that Jennings
had a conversation on the telephone with B.L., and a plan was
made to buy drugs from reinhart before Jennings went to the
house; (2) Jennings talked with reinhart on the telephone,
and reinhart agreed to the deal; and (3) there was another
person at reinhart’s home who could substantiate that the deal
took place.
Trial counsel’s failure to object to these statements did not
prejudice reinhart. With respect to the first challenged state-
ment, Stopak testified:
[State’s counsel]. All right. Then what was the next
thing that took place?
[Stopak]. Um, prior to leaving, I then conversed again
with [Jennings] just to make sure that we were all on
the same page with regard to what was to transpire. He
indicated that he had made a phone call to B.L. who
was located at [reinhart’s] residence, and that [B.L.]
had arranged for [Jennings] to arrive at [reinhart’s]
residence to purchase the marijuana from [reinhart].
Once that was clarified, we then departed from the cem-
etery, and [Jennings] traveled to [reinhart’s] residence
in Albion.
reinhart’s trial counsel was not ineffective for failing to
object to this statement, because this statement was admissible.
STATe v. reINHArT 	719
Cite as 283 Neb. 710

A statement is hearsay only if it is offered to prove the truth
of the matter asserted. § 27-801(3). Here, Stopak’s statement
explained why he, Spiegel, and Jennings went to reinhart’s
house. The statement would have been admissible for a non-
hearsay purpose even if reinhart’s trial counsel had objected.
reinhart’s counsel was not ineffective for failing to object to
the admission of admissible evidence. See State v. Carter, 241
Neb. 645, 489 N.W.2d 846 (1992) (counsel not ineffective for
failing to raise constitutional objections to evidence when there
was no constitutional violation).
With 	regard 	to 	the 	second 	challenged 	statement, 	that
Jennings spoke with reinhart on the telephone and agreed
to the drug deal, both Jennings and B.L. provided evidence
indicating that Jennings spoke with reinhart on the telephone
and that reinhart agreed to the deal. The third statement by
Stopak was that a third person was at reinhart’s house who
could substantiate that the deal took place. Jennings, B.L.,
and kelley all said that kelley was at reinhart’s house when
Jennings was there, and kelley’s testimony substantiated that a
deal took place. even assuming that the last two statements by
Stopak were hearsay, they were repetitive of other testimony.
They did not materially influence the jury to reach a verdict
adverse to reinhart’s substantial rights, and their admission
was, at most, harmless error. If admitting the statements was
harmless error, reinhart was not prejudiced by counsel’s fail-
ure to object. See id.
Because the statements challenged by reinhart were either
admissible or their admission was, at most, harmless error,
reinhart has not shown that he was prejudiced by trial coun-
sel’s failure to object to these statements. reinhart’s final
assignment of error has no merit.
CONCLUSION
reinhart did not allege that his convictions and sentences
violated his constitutional protection against double jeopardy
before the trial court, and that claim is waived on appeal. The
evidence was sufficient to support his convictions on both
counts. The trial court erred in admitting hearsay testimony by
Stopak about what Stopak was told by Jennings that Jennings
720 	283 NeBrASkA repOrTS

heard from reinhart, but the admission of Stopak’s state-
ment was harmless error. reinhart claims trial counsel should
have objected to several other statements, but those state-
ments were either admissible as nonhearsay or their admis-
sion was, at most, harmless error, and therefore, the failure to
object did not prejudice reinhart. None of reinhart’s assign-
ments of error have merit. The judgment of the district court
is affirmed.
A ffirmed.
repUBLIC BANk v. LINCOLN CTY. BD. OF eQUAL. 	721
Cite as 283 Neb. 721
republic bANk , iNc., AppellANt, v. liNcolN couNty
boArd of equAlizAtioN, Appellee .
811 N.W.2d 682
Filed April 20, 2012. 	No. S-11-533.
1. Taxation: Judgments: Appeal and Error. Appellate courts review decisions
rendered by the Tax equalization and review Commission for errors appearing
on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the decision conforms to
the law, is supported by competent evidence, and is neither arbitrary, capricious,
nor unreasonable.
3. Taxation: Appeal and Error. Questions of law arising during appellate review
of Tax equalization and review Commission decisions are reviewed de novo on
the record.
4. Statutes: Appeal and Error. Statutory interpretation is a question of law, which
an appellate court resolves independently of the trial court.
5. Taxation: Appeal and Error. Appeals may be taken from a county board of
equalization to the Tax equalization and review Commission in accordance with
the Tax equalization and review Commission Act.
6. Jurisdiction: Time: Appeal and Error. To acquire jurisdiction over the subject
matter of the action, there must be strict compliance with the time requirements
of the statute granting the appeal.
7. Statutes: Appeal and Error. The rules of statutory interpretation require an
appellate court to give effect to the entire language of a statute, and to rec-
oncile different provisions of the statutes so they are consistent, harmonious,
and sensible.
8. Taxation: Statutes. Neb. rev. Stat. § 77-1502 (reissue 2009) describes a proc-
ess by which a taxpayer files a return and can initiate a protest to challenge an
assessed value of real or personal property.
9. Statutes: Jurisdiction. Jurisdictional statutes are to be strictly construed.