State v. McGee

State of NebraSka , appellee , v.
Sarah r. Mc G ee , appellaNt.
803 N.W.2d 497
Filed September 23, 2011. 	No. S-10-1065.
1. Investigative Stops: Warrantless Searches: Probable Cause: Appeal and
Error. When reviewing a district court’s determinations of reasonable suspicion
to conduct an investigatory stop and probable cause to perform a warrantless
search, ultimate determinations of reasonable suspicion and probable cause are
reviewed de novo. But findings of historical fact to support that determination are
reviewed for clear error, giving due weight to the inferences drawn from those
facts by the trial court.
2. Investigative Stops: Motor Vehicles: Probable Cause. Occupants of a private
vehicle traveling together by choice may be assumed to have some personal or
business association with each other. Knowledge or suspicion that one of the
occupants has been involved in criminal activity occurring within the vehicle
or involving the vehicle serves as a basis for reasonable suspicion that the other
occupants may be participants in that activity.
3. Constitutional Law: Trial: Evidence. Favorable evidence is material, and con-
stitutional error results from its suppression by the State, if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different. A reasonable probability of a different
result is accordingly shown when the State’s evidentiary suppression undermines
confidence in the outcome of the trial.
4. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction 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 essential elements of the crime beyond a reasonable doubt.
5. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: 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.
6. Aiding and Abetting. A person who aids, abets, procures, or causes another
to commit any offense may be prosecuted as if he or she were the principal
offender.
7. Aiding and Abetting: Proof. Aiding and abetting requires some participation in
a criminal act and must be evidenced by some word, act, or deed. No particular
acts are necessary, nor is it necessary that the defendant take physical part in the
commission of the crime or that there was an express agreement to commit the
crime. Mere encouragement or assistance is sufficient.
8. Convictions: Circumstantial Evidence. In finding a defendant guilty beyond
a reasonable doubt, a fact finder may rely upon circumstantial evidence and the
inferences that may be drawn therefrom.
StAte v. Mcgee 	387
Cite as 282 Neb. 387
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

9. Controlled 	Substances: 	Evidence: 	Circumstantial 	Evidence: 	Proof.
Constructive possession of an illegal substance may be proved by direct or cir-
cumstantial evidence.
10. Investigative Stops: Motor Vehicles: Controlled Substances: Circumstantial
Evidence. While a passenger’s mere presence in a vehicle with contraband is
insufficient to support a finding of joint possession, a passenger’s possession
of an illegal substance can be inferred from his or her proximity to the sub-
stance or other circumstantial evidence that affirmatively links the passenger to
the substance.
11. Investigative Stops: Motor Vehicles: Controlled Substances: Evidence.
generally, a passenger’s joint possession of a controlled substance found in a
vehicle can be established by evidence that (1) supports an inference that the
driver was involved in drug trafficking, as distinguished from possessing illegal
drugs for personal use; (2) shows the passenger acted suspiciously during a traffic
stop; and (3) shows the passenger was not a casual occupant but someone who
had been traveling a considerable distance with the driver.
12. Investigative Stops: Motor Vehicles: Controlled Substances. A finder of fact
may reasonably infer that a driver with a possessory interest in a vehicle who is
transporting a large quantity of illegal drugs would not invite someone into his or
her vehicle who had no knowledge of the driver’s drug activities.
13. Plea in Abatement: Appeal and Error. Any error in ruling on a plea in abate-
ment is cured by a subsequent finding at trial of guilt beyond a reasonable doubt
which is supported by sufficient evidence.
14. Appeal and Error. errors that are assigned but not argued will not be addressed
by an appellate court.
Appeal from the District Court for Lancaster County: SteveN
D. burNS, Judge. Affirmed.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
for appellant.
Jon Bruning, Attorney general, and Nathan A. Liss for
appellee.
WriGht, coNNolly, G errarD, StephaN, MccorMack , and
M iller-lerMaN, JJ.
StephaN, J.
A vehicle driven by Anthony M. Laws in which Stuart D.
Howard and Sarah R. Mcgee were passengers was stopped
for speeding by a Nebraska State Patrol officer. When consent
to search was denied, a trained drug detection canine unit was
called. the canine alerted, and a search disclosed over 700
pounds of marijuana in a camper being towed by the vehicle.
388 	282 NeBRASKA RePORtS

Laws, Howard, and Mcgee were all charged with possession
of a controlled substance with intent to deliver.1 After their
motions to suppress were denied, each was convicted. We
addressed the convictions of Laws and Howard in a separate
opinion released today. this appeal addresses Mcgee’s chal-
lenge to the denial of her motion to suppress and to the suf-
ficiency of the evidence to support her conviction.
FACtS
the facts relating to the vehicle stop and canine sniff are
identical to the facts stated by this court in our consolidated
opinion on the appeals of Laws and Howard.2 We refer the
reader to that published opinion for an extensive discussion of
the underlying facts. For purposes of this appeal, it is sufficient
at this point to state that after 727.5 pounds of marijuana were
found in a popup camper being towed by the vehicle in which
Mcgee was a passenger, Mcgee was charged with possession
of a controlled substance, marijuana, with intent to deliver. She
initially filed a plea in abatement, arguing that the evidence
at the preliminary hearing was insufficient to show probable
cause, in that the evidence did not show that she had knowl-
edge of or reasonably should have had knowledge that the mari-
juana was in the camper or that she had control of the camper
or constructive control of the marijuana. the court overruled
the plea in abatement.
Mcgee then filed a motion to suppress the evidence found
as a result of the search of the vehicles. She generally argued
that the patrol officer lacked reasonable suspicion to detain the
vehicle’s occupants for the canine sniff and that the results of
the canine sniff were unreliable and could not serve as a basis
for probable cause to search. Laws and Howard filed similar
motions, and after conducting a combined evidentiary hearing,
the district court overruled all three motions to suppress.
Mcgee was then tried to a jury. After a 4-day trial, the jury
was unable to reach a verdict and the district court declared
a mistrial. Prior to retrial, Mcgee filed a motion to dismiss
1 See Neb. Rev. Stat. § 28-416 (Reissue 2008).
2 See State v. Howard, ante p. 352, 803 N.W.2d 450 (2011).
StAte v. Mcgee 	389
Cite as 282 Neb. 387

the charge against her, alleging that the State had failed to
disclose exculpatory evidence that materially prejudiced her
initial trial, in violation of Brady v. Maryland.3 the evidence
in question was a statement made by Laws during settlement
negotiations with the State, which the parties refer to as a
“proffer” statement.
the district court determined that the State failed to dis-
close Laws’ proffer statement to Mcgee either prior to or dur-
ing her initial trial. It concluded that although this may have
resulted in a Brady violation, dismissal of the charge against
Mcgee was not an appropriate remedy. the court therefore
overruled Mcgee’s motion to dismiss. the State then filed a
motion in limine seeking to bar Mcgee from presenting evi-
dence of the proffer statement given by Laws to law enforce-
ment, contending that it was inadmissible hearsay. the dis-
trict court sustained the motion in limine, rejecting Mcgee’s
argument that Laws’ statement fell within an exception to the
hearsay rule.4
the case then proceeded to retrial. the State sought to con-
vict Mcgee as a principal or, alternatively, under the theory
that she aided and abetted Laws and Howard. the jury found
Mcgee guilty. After her motion for new trial was overruled,
Mcgee was sentenced to a term of 2 to 4 years in prison. She
filed this timely appeal.
ASSIgNMeNtS OF eRROR
Mcgee assigns, consolidated and restated, that the trial
court erred in (1) finding that the arresting officer had reason-
able suspicion to detain her while awaiting the arrival of the
canine unit and failing to suppress the physical evidence result-
ing from the search and seizure of the vehicle, (2) finding the
length of time that she was detained without a warrant was
reasonable, (3) finding adequate foundation for admission of
the results of the canine sniff of the vehicle, (4) denying her
motion to dismiss for insufficient evidence made at the close
3 Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. ed. 2d 215
(1963).
4 See Neb. Rev. Stat. § 27-804(2)(c) (Reissue 2008).
390 	282 NeBRASKA RePORtS

of the State’s case in chief during the first trial, (5) denying
her renewed motion to dismiss for insufficient evidence made
at the close of all evidence during the first trial, (6) failing to
grant her motion to dismiss the charge against her based on
the State’s failure to disclose exculpatory evidence before or
during her first trial, (7) failing to find that Laws’ statements
during the proffer interview fell within a hearsay exception and
were admissible, (8) denying her motion to dismiss for insuf-
ficient evidence made at the close of the State’s case in chief
during the second trial and accepting the guilty verdict when
insufficient evidence supported it, (9) overruling her plea in
abatement, and (10) denying bond pending appeal.
ANALYSIS
reaSoNable SuSpicioN JuStifieD
further D eteNtioN
[1] Mcgee argues that the district court erred in finding that
there was reasonable suspicion to detain her for the canine
sniff. generally, she contends that the factors considered by the
district court in its analysis related only to Laws and Howard
and that thus, the factors were not sufficient to detain her.
When reviewing a district court’s determinations of reasonable
suspicion to conduct an investigatory stop and probable cause
to perform a warrantless search, ultimate determinations of
reasonable suspicion and probable cause are reviewed de novo.
But findings of historical fact to support that determination are
reviewed for clear error, giving due weight to the inferences
drawn from those facts by the trial court.5
[2] In our separate opinion related to Laws and Howard, we
concluded that the district court did not err in finding reason-
able suspicion to detain the vehicle and its occupants for the
canine sniff. Although many, but not all, of the factors relied
upon by the district court focused on Laws and Howard, it is
undisputed that Mcgee was a passenger in the vehicle with
Laws and Howard and that she had traveled with them on the
entire trip. Occupants of a private vehicle traveling together
by choice may be assumed to have some personal or business
5 State v. Louthan, 275 Neb. 101, 744 N.W.2d 454 (2008).
StAte v. Mcgee 	391
Cite as 282 Neb. 387

association with each other.6 We agree with other courts which
have held that knowledge or suspicion that one of the occupants
has been involved in criminal activity occurring within the
vehicle or involving the vehicle serves as a basis for reasonable
suspicion that the other occupants may be participants in that
activity.7 For all of the reasons articulated in our separate opin-
ion related to Laws and Howard, we conclude that the district
court did not err in finding reasonable suspicion to detain the
vehicle’s occupants for the canine sniff.
leNGth of D eteNtioN Not uNreaSoNable
Mcgee argues that the length of time she was required to
wait for the canine sniff was unreasonable. For the reasons
articulated in our opinion related to Laws and Howard, we find
this assignment of error to be without merit.
caNiNe SNiff WaS reliable
Mcgee also argues that the evidence was insufficient to
support a finding that the canine was sufficiently reliable so
that its alert supported a finding of probable cause to search.
Mcgee did not raise this argument in her motion to suppress.
to the extent the issue is properly before us in this appeal, it
is without merit for the reasons articulated by this court in the
opinion related to Laws and Howard.
SufficieNcy of eviDeNce at
firSt trial iS irrelevaNt
Mcgee assigns as error the denial of her motions to dismiss
made at the close of the State’s case and again at the end of the
first trial. the motions were based upon insufficient evidence
to convict her of the crime charged.
Mcgee’s first motion, made at the close of the State’s case,
was waived when Mcgee elected to present evidence in her
defense.8 And resolution of the second motion is unnecessary,
6 People v. In Interest of H.J., 931 P.2d 1177 (Colo. 1997).
7 Id. See, also, U.S. v. Price, 184 F.3d 637 (7th Cir. 1999); U.S. v. Tehrani,
49 F.3d 54 (2d Cir. 1995); 4 Wayne R. LaFave, Search and Seizure, A
treatise on the Fourth Amendment § 9.5(f) (4th ed. 2004).
8 See State v. Branch, 277 Neb. 738, 764 N.W.2d 867 (2009).
392 	282 NeBRASKA RePORtS

because the evidence presented by the State against Mcgee at
her initial trial did not result in a conviction. the U.S. Supreme
Court has held that retrial of a defendant after a mistrial due to
a hung jury is not barred, regardless of the sufficiency of the
evidence at the first trial.9
D iSMiSSal of charGeS Not WarraNteD
Mcgee argues that the district court erred when it failed to
grant her motion to dismiss filed after the first trial resulted
in a mistrial. She claimed that dismissal of the charge prior
to a retrial was proper because the State violated Brady v.
Maryland10 when it failed to provide her with Laws’ proffer
statement prior to or during her initial trial.
[3] In Brady, the U.S. Supreme Court held that “suppression
by the prosecution of evidence favorable to an accused . . . vio-
lates due process where the evidence is material either to guilt
or to punishment.”11 We have stated:
“Favorable evidence is material, and constitutional error
results from its suppression by the State, if there is a rea-
sonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have
been different. . . . A reasonable probability of a different
result is accordingly shown when the State’s evidentiary
suppression undermines confidence in the outcome of
the trial.”12
However, “the mere determination that evidence was withheld
does not automatically indicate that the prosecution violated its
Brady duty.”13 Although the term “Brady violation” is some-
times used to refer to any breach of the broad obligation to dis-
close exculpatory evidence, there is no real constitutional vio-
lation unless “the nondisclosure was so serious that there is a
9 Richardson v. United States, 468 U.S. 317, 104 S. Ct. 3081, 82 L. ed. 2d
242 (1984).
10 Brady v. Maryland, supra note 3.
11 Id., 373 U.S. at 87.
12 State v. Lykens, 271 Neb. 240, 249, 710 N.W.2d 844, 851 (2006), quoting
State v. Shipps, 265 Neb. 342, 656 N.W.2d 622 (2003).
13 State v. Lykens, supra note 12, 271 Neb. at 251, 710 N.W.2d at 852.
StAte v. Mcgee 	393
Cite as 282 Neb. 387

reasonable probability that the suppressed evidence would have
produced a different verdict.”14 there are three components of
a true Brady violation: “the evidence at issue must be favor-
able to the accused, either because it is exculpatory, or because
it is impeaching; that evidence must have been suppressed by
the State, either willfully or inadvertently; and prejudice must
have ensued.”15
Here, the State admits that Laws’ proffer statement was not
provided to Mcgee prior to her first trial. Assuming without
deciding that the proffer statement was material under the
Brady standard and thus the failure to disclose was a true
Brady violation, we find that the district court did not err in
refusing to dismiss the charge against Mcgee.
generally, Brady violations occur during trials that result
in a defendant’s conviction.16 the remedy for such violations
is the granting of a new trial.17 Although some courts have
determined that dismissal of all charges against a defendant is
a possible remedy for a Brady violation, courts have done this
only in rare and unusual circumstances.18 these circumstances
generally involve complete destruction of material evidence
by the prosecution or the prosecution’s repeated and systemic
disregard for the duty to disclose exculpatory evidence.19 We
find nothing in the record before us that would justify such
remedy. Instead, this is the type of Brady violation that would
entitle Mcgee to a new trial if she had been convicted by the
14 Strickler v. Greene, 527 U.S. 263, 281, 119 S. Ct. 1936, 144 L. ed. 2d 286
(1999).
15 Id., 527 U.S. at 281-82.
16 See, e.g., State v. Lykens, supra note 12; State v. Castor, 257 Neb. 572,
599 N.W.2d 201 (1999).
17 See, e.g., State v. Castor, supra note 16.
18 See, Government of Virgin Islands v. Fahie, 419 F.3d 249 (3d Cir. 2005);
U.S. v. Fitzgerald, 615 F. Supp. 2d 1156 (S.D. Cal. 2009); U.S. v. Lyons,
352 F. Supp. 2d 1231 (M.D. Fla. 2004); U.S. v. Diabate, 90 F. Supp. 2d
140 (D. Mass. 2000); U.S. v. Dollar, 25 F. Supp. 2d 1320 (N.D. Ala.
1998); People v. McCann, 115 Misc. 2d 1025, 455 N.Y.S.2d 212 (N.Y.
Crim. 1982).
19 Id.
394 	282 NeBRASKA RePORtS

jury at the first trial. Here, because her first trial resulted in a
mistrial and Mcgee was aware of the proffer statement prior
to her second trial, she has received the general equivalent of a
new trial based on the Brady violation, in that she had the use
of the information at her second trial. the district court did not
err in denying the motion to dismiss the charge based on the
alleged Brady violation.
laWS’ StateMeNtS Were
iNaDMiSSible hearSay
the district court found that Laws’ proffer statement was
hearsay and was inadmissible at Mcgee’s retrial. Mcgee argues
that the evidence was admissible as an exception to hearsay
under § 27-804(2)(c), which provides that if a declarant is
unavailable as a witness, a statement he or she previously made
is not hearsay if it was
[a] statement which was at the time of its making so
far contrary to the declarant’s pecuniary or proprietary
interest, or so far tended to subject him to civil or crimi-
nal liability or to render invalid a claim by him against
another, that a reasonable man in his position would
not have made the statement unless he believed it to
be true. A statement tending to expose the declarant to
criminal liability and offered to exculpate the accused is
not admissible unless corroborating circumstances clearly
indicate the trustworthiness of the statement.
Laws invoked his Fifth Amendment privilege not to testify
prior to Mcgee’s retrial and was thus unavailable as a wit-
ness.20 Mcgee argues that Laws’ proffer statement was trust-
worthy because it was against his penal interest and was made
while he was in police custody, lending credibility.
Without detailing the contents of the proffer statement,
we conclude that the district court did not err in ruling on its
admissibility. the proffer statement was given as part of plea
negotiations between Laws and the State. Laws’ agreement
with the State expressly provided that “[n]o statements made or
20 See, State v. Johnson, 236 Neb. 831, 464 N.W.2d 167 (1991); 2 McCormick
on evidence § 253 (Kenneth S. Broun ed., 6th ed. 2006).
StAte v. Mcgee 	395
Cite as 282 Neb. 387

other information provided by you during the ‘off-the-record’
proffer or discussion will be used against you in any prosecu-
tion.” Because by the nature of the agreement Laws’ statement
could not have been used to prosecute him, it was not against
his penal interest and did not subject him to civil or crimi-
nal liability.
eviDeNce at SecoND trial WaS SufficieNt
[4,5] Mcgee also claims that the State presented insufficient
evidence to convict her at the second trial. When reviewing a
criminal conviction 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 favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.21 And whether the evidence is direct, circumstantial, or
a combination thereof, the standard is the same: An appellate
court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact.22
[6,7] the jury was instructed that it could convict Mcgee
either as a principal or as an aider and abettor. In its closing
argument, the State argued only the aiding and abetting theory.
In Nebraska, a person who aids, abets, procures, or causes
another to commit any offense may be prosecuted as if he or
she were the principal offender.23 Aiding and abetting requires
some participation in a criminal act and must be evidenced
by some word, act, or deed. No particular acts are necessary,
nor is it necessary that the defendant take physical part in the
commission of the crime or that there was an express agree-
ment to commit the crime. Mere encouragement or assistance
is sufficient.24
21 State v. Chavez, 281 Neb. 99, 793 N.W.2d 347 (2011); State v. Robinson,
278 Neb. 212, 769 N.W.2d 366 (2009).
22 State v. Edwards, 278 Neb. 55, 767 N.W.2d 784 (2009); State v. Babbitt,
277 Neb. 327, 762 N.W.2d 58 (2009).
23 State v. Stark, 272 Neb. 89, 718 N.W.2d 509 (2006).
24 State v. Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
396 	282 NeBRASKA RePORtS

Under the circumstances of this case, in order to be guilty
of aiding and abetting, Mcgee must have (1) known about the
marijuana in the camper and (2) encouraged or assisted Laws
and Howard in transporting the marijuana. Viewed in the light
most favorable to the prosecution, based on the circumstan-
tial evidence before it, a rational jury could have found these
essential elements were met beyond a reasonable doubt.
[8,9] In finding a defendant guilty beyond a reasonable
doubt, a fact finder may rely upon circumstantial evidence and
the inferences that may be drawn therefrom.25 Constructive
possession of an illegal substance may be proved by direct or
circumstantial evidence.26
[10-12] In State v. Draganescu,27 we considered whether
circumstantial evidence was sufficient to support a reasonable
inference that a passenger in a vehicle being used to transport
illegal drugs was in joint possession of the contraband. We
noted that while a passenger’s mere presence in a vehicle with
contraband is insufficient to support a finding of joint posses-
sion, a passenger’s possession of an illegal substance can be
inferred from his or her proximity to the substance or other
circumstantial evidence that affirmatively links the passenger
to the substance.28 generally, a passenger’s joint possession of
a controlled substance found in a vehicle can be established
by evidence that (1) supports an inference that the driver was
involved in drug trafficking, as distinguished from possessing
illegal drugs for personal use; (2) shows the passenger acted
suspiciously during a traffic stop; and (3) shows the passenger
was not a casual occupant but someone who had been traveling
a considerable distance with the driver.29 We agreed with the
conclusion of other courts that a finder of fact may reasonably
infer that a driver with a possessory interest in a vehicle who
is transporting a large quantity of illegal drugs would not invite
25 State v. Babbitt, supra note 22.
26 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
27 Id.
28 Id.
29 Id.
StAte v. Mcgee 	397
Cite as 282 Neb. 387

someone into his or her vehicle who had no knowledge of the
driver’s drug activities.30
the same principles apply to the question of whether one
aided and abetted another in the possession of a controlled
substance with intent to deliver. In this case, State Patrol offi-
cer Robert Pelster testified that drug traffickers sometimes
use a “disclaimer” in order to avoid suspicion. He testified
that one type of “disclaimer” is a person that rides along on
a drug transportation trip in order to make the trip look like
a family outing. the sheer volume of the marijuana found in
the camper supports an inference that Laws and Howard were
trafficking the drugs and that both of them knew the marijuana
was in the camper and intended to distribute it. A reasonable
juror, after hearing the evidence, could conclude that Mcgee
affirmatively assisted in this endeavor by agreeing to act as
the “disclaimer.”
A key piece of evidence is the videotape of the traffic stop.
In that video, when questioned by Pelster about the nature
of the trip, Mcgee informs him that the group had gone to
Flagstaff, Arizona, to see the grand Canyon; that they had
stayed for the weekend; and that they had “had a good time out
there.” this statement, however, was largely contradicted by
statements made by Mcgee to Investigator Alan eberle in the
interview conducted after her arrest. Mcgee told eberle that
the group did not leave Detroit, Michigan, until Friday, May
29, 2009, at approximately 3:30 p.m.; that they drove straight
through and arrived in Flagstaff late Saturday evening; and
that after briefly meeting up with Howard’s cousins in a dark
desert, they slept for approximately 6 hours at a hotel and then
left Flagstaff at approximately noon on Sunday. At one point,
Mcgee told eberle that she saw “red rocks” that she assumed
was the grand Canyon, but at another point, she told him it
was dark when they arrived in Flagstaff. Mcgee professed in
her interview with eberle that the purpose of her trip was to
have a romantic getaway with Howard and to see the grand
Canyon, and yet she stated that when they arrived at what she
30 See id.
398 	282 NeBRASKA RePORtS

thought was the grand Canyon, she refused to leave the vehicle
because she was desperately afraid of snakes. A reasonable
juror could conclude that this was not a “weekend trip” to the
“grand Canyon” for the purpose of having a “good time,” and
could therefore infer that Mcgee’s statement to Pelster was
misleading and was an active attempt to encourage the drug-
transporting endeavor and assist Laws and Howard in avoid-
ing detection.
In addition, Mcgee told eberle that they were returning to
Detroit early because she received a telephone call that a fam-
ily member was ill. However, she did not mention this fact to
Pelster during the stop on the interstate, even though the stop
took almost 2 hours. And in fact, the rental agreement for the
vehicle reflected an expiration date of June 2, 2009, the day
after the traffic stop in Nebraska. Mcgee also told eberle
that they stayed at a Red Roof Inn in Flagstaff, but evidence
was presented that there is no hotel by that name at the loca-
tion she identified. A different hotel at that location had no
record that Mcgee, Laws, or Howard had ever stayed there
and had no room number corresponding to that which Mcgee
gave eberle.
Although other explanations for Mcgee’s conduct were
plausible, we find that viewing the evidence in the light most
favorable to the prosecution, a reasonable jury could find
from all the surrounding circumstances that by agreeing to go
along on the trip, and particularly in giving the statement to
Pelster about the trip, Mcgee was attempting to help Laws and
Howard avoid detection. And a reasonable jury could also find
that the fact that Mcgee assisted Laws and Howard in attempt-
ing to avoid detection demonstrated that she was aware of the
drugs in the camper. the evidence was sufficient to support
Mcgee’s conviction.
plea iN abateMeNt properly overruleD
Mcgee argues that the district court erred in overruling her
plea in abatement. She contends that insufficient evidence was
presented at the preliminary hearing to bind her over for trial.
[13] Any error in ruling on a plea in abatement is cured by
a subsequent finding at trial of guilt beyond a reasonable doubt
StAte v. Mcgee 	399
Cite as 282 Neb. 387

which is supported by sufficient evidence.31 Because the evi-
dence was sufficient to support Mcgee’s conviction, any error
at the plea in abatement stage was cured.
[14] Mcgee assigns that the district court erred in refusing
her bond pending her appeal. But this assignment of error is
not argued in her brief. errors that are assigned but not argued
will not be addressed by an appellate court.32 We therefore do
not reach this assignment of error.
CONCLUSION
For all of the foregoing reasons, we affirm Mcgee’s convic-
tion and sentence.
affirMeD.
heavicaN, C.J., not participating.
31 State v. Soukharith, 253 Neb. 310, 570 N.W.2d 344 (1997).
32 State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006); State v.
Conover, 270 Neb. 446, 703 N.W.2d 898 (2005).
thoMaS l. pearSoN, appellaNt, v.
archer-DaNielS-M iDlaND M illiNG
coMpaNy, appellee .
803 N.W.2d 489
Filed September 23, 2011. 	No. S-10-1142.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the compensation court may be modified, reversed, or set aside only upon the
grounds that (1) the compensation court acted without or in excess of its pow-
ers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order,
judgment, or award; or (4) the findings of fact by the compensation court do not
support the order or award.
2. ____: ____. In determining whether to affirm, modify, reverse, or set aside a
judgment of the Workers’ Compensation Court review panel, a higher appellate
court reviews the finding of the trial judge who conducted the original hearing;
the findings of fact of the trial judge will not be disturbed on appeal unless
clearly wrong.
3. ____: ____. With respect to questions of law in workers’ compensation cases, an
appellate court is obligated to make its own determination.
400 	282 NeBRASKA RePORtS