State v. Starkey - Possession Conviction Appeal Affirmed

IN THE NEBRASKA COURT OF APPEALS MEMORANDUM OPINION AND JUDGMENT ON APPEAL (Memorandum Web Opinion) S TATE V. S TARKEY 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). S TATE OF N EBRASKA, APPELLEE, V. N ATASHA L. S TARKEY, A PPELLANT. Filed February 24, 2026. No. A-25-411. Appeal from the District Court for Lancaster County: L ORI A. M ARET, Judge. Affirmed. F. Matthew Aerni, of Liberty Law Group, L.L.C., for appellant. Michael T. Hilgers, Attorney General, and Jacob M. Waggoner for appellee. R IEDMANN, Chief Judge, and P IRTLE and F REEMAN, Judges. F REEMAN, Judge. INTRODUCTION Natasha L. Starkey appeals her jury conviction in the district court for Lancaster County for possession of a controll ed substance. This case arises after methamphetamine was found on Starkey ’ s p erson while she was attempting to visit an incarcerated inmate. On appeal, Starkey assigns that the dist rict court erred in overruling Starkey ’ s objections to evidence r egarding the nature of the inmate ’ s conviction and evidence suggesting sh e in tended to distribute methamphetamine to that inmate. She also asserts that the district court erred by denying her motion to suppress physical evidence obtaine d during a warrantless search after she withdrew her consent to search. For the rea sons set forth below, we affirm. BACKGROUND On December 9, 2023, Starkey entered the Nebraska State Penitentiary (NSPen) in Lincoln, Nebraska, to visit an inmate. Upon entry, Corporal Jessica Rhoades conducted a pat search.

Starkey was instruct ed to empty her pockets and produced a small “ Ziplock ” bag from her right pants pocket. Rhoades seized the bag, which fi eld-tested positive for methamphetamine, and Starkey left the facility. Several days later, an investigator with the Nebraska State Patrol submitted the bag ’ s contents to the Nebraska State Patrol Crime Laboratory for testing. In February 2024, the laboratory confirmed the substanc e was methamphetamine, we ighing 0.6 grams. An arrest warrant was issued on April 15, and Starkey was arrested on Apr il 22. In August, the State charged S tarkey by information with possession of a controlled substance in violation of Neb. Rev. Stat. § 28-416(3) (Cum. Supp. 2024), a Class IV felony. M OTION TO S UPPRESS In October 2024, Starkey moved to suppress all evidence obtained f rom the pat search at NSPen. The motion a rgued that the seizure lacked proba ble cause, was unreasonable, and violated her fourth amendment rights, re ndering all derivative evidence inadmissi ble as “ fr uit of the poisonous tree. ” The district court held a suppression hearing in February 2025. The State called R hoades, who testified regarding NSP en ’ s visitor procedures. Rhoades explained that visitors must sign in, secure personal belongings in a locker, submit remaining items for screening, and undergo a pat-down se arch in a private room. The p at search serves to pre vent contraband, such a s d rugs, cell phones, and paper, from entering the facility. Refusal re sults in denial of visitation. Rhoades testified that she conducted Starkey ’ s pat search while working as a “ pass clerk. ” During the search, Starkey voluntarily entered th e pat search room. When inst ructed to pull out her front pockets, Rhoades observed Starkey holding a little plastic “ baggie ” in her right hand. According to Rhoades, Starkey attempted to return the baggie to her right pocket, at which point Rhoades seized it. Rhoades testified that Starkey appeared to be trying to conceal the baggie. Upon seizure, Rhoades described the contents as “ dirty rocks. ” Rhoades contacted her lieutenant, but Starkey collec ted her b elongings and left NSPen. Rhoades authored an inci dent report a nd secured the baggie in an evidence locker. The State argued that the unique context of the prison fa cility pe rmits sea rches and seizures without individualized suspi cion and that S tarkey, consequently, had a dimi nished expectation of privacy. Starkey countered that she revoked consent to a search by attempting to put the baggie back in her pocket, re ndering the seizure unlaw ful. The district c ourt found that Starkey conse nted to the search and confirmed that Rhoades had authority to seize the baggie. The court overruled the motion to suppress. J URY T RIAL A 2-day jury t rial took place in March 2025. The State again called Rhoades, whose testimony was consisten t with her suppr ession hearing testimony. The State off ered Rhoades ’ written incident r eport an d video foota ge of the December 9, 2023 encounter, excluding the private pat-down, into evidence. Trial testimony established an unbroken chain of custody for the seized baggie, which was secured, transferred, tested, and confir med by the Nebraska State Patrol Crime Laboratory to contain methamphetamine. The baggie was a dmitted into evidence. Star key did not object to the admission of the video or the baggie.

Starkey testified in h er own defense. Starkey stated that she started using methamphetamine at age 23 and experienced periods of relapse, including in late November or early December 2023. She testified that she stopped using after law enforcement searche d h er home on December 4 but acknowledged that she did not seek treatment unti l after the incident at NSPen on December 9. On December 9, 2023, Starkey drove approximately 4 hours from Iowa to NSPen to visit an inmate. She had previously visited the inmate at a Rece ption and Treatment Center but had not visited the inmate at NSPen. Based on prior visits to other secure facili tie s, Starkey expected to undergo a pat search at NSPen. Starkey testified that she first noticed the baggie when instructed to scoop her front coin pocket during the p at search. S he claimed she w as unaware the baggie was in her pocket before that moment and did not recognize the baggie as containing methamphetamine. Starkey testified that she recently pur chased the je ans secondhand and believed the baggie may have been in the pocket at the time of pur chase, or that she pla ced it there during a period of use and forgot it was present. Starke y denied at tempting to concea l the baggie and testified she told Rhoade s she did not know what the item was. Starkey stated she left the facility be cause she felt as though she was not “ getting a response. And it was shift change, and there was just too many people coming. So, I exited the building, and I told them that if they needed to, they could call me. ” S tarkey contacted the facility 30 minutes later, at which point she was informed that her visit had bee n canceled. On cross -examination, t he S tate asked Starkey if the inmate she intended to visit was incarcerated for the offense of possession with intent to distribute metha mphetamine. Starkey objected to the question, claiming it was irrelevant and constituted “ 404 material. ” The district court overruled the objections on both grounds, and Starkey confir med the inmate ’ s conviction. During closing argument, the S tate challenged S tarkey ’ s credibility and stated to the jury, “T here is a reasonable inference to make that the reason that she went into the penitentiary with methamphetamine was to give it to [the in mate]. Someone who is incarcerated for a methamphetamine crime. ” Starkey objected, claiming improper 404 material. The dist rict court overruled the objection and submitted the case to the jury. V ERDICT AND S ENTENCIN G The jury found Starkey guilty of one count of possession of a controlled substance, a Class IV felony. The district court accepted that verdict and ordered a p resentence investigation report. In April 2025, the court sentenced Starkey to a term of 2 years ’ imprisonment, to run consecutively to any other sentence she was then serving. ASSIGNMENTS OF ERROR Starkey assigns, restated, that the dist rict court erred in (1) overruling e vidence of the inmate ’ s reason for imp risonment and admitting circumstantial evidence and (2) denying her motion to suppress physical evidence.

STANDARD OF REVIEW A trial court has the discretion to determine the relevancy and admissibilit y of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion. State v. Price, 320 Neb. 1, 26 N.W.3d 70 (2025). A judicial abuse of disc retion exists only when the reasons or rulings of a trial judge are clearly untenable, unf airly depriving a litigant of a substantial right and denying just results in matters submitted for disposition. Id. ANALYSIS A DMISSION OF E VIDENCE OF I NMATE C ONVICTION Starkey argues the district court e rred in overruling her objection to the State ’ s inquiry into the reason the inm ate sh e was visiting was incarcerated. At trial, the State asked whether “ [Inmate] is incarcerated for the offense of poss ession with int ent to distribute methamphetamine. ” Starkey claims this information w as irre levant to whether she knowingly possessed methamphetamine and constituted inadmissible other acts evidence under Neb. Rev. Stat. § 27 -404(2) (Cum. Supp. 2024). Starkey further argues that the district court er red in allowing the State to introduce a nd rely upon circumstantial evidence suggesting she intended to distribute methamphetamine to the inmate. Under Neb. R ev. Stat. § 27-401 (Cum. Supp. 202 4), “ [r]elevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. ” The bar for establishing e videntiary releva nce is not a high one; it requires only that the probative value of the evidence be something more than nothing. State v. Price, supra. The State is allowed to present a coherent picture of the facts of the crimes charged, and it may generally ch oose its evidence in so doing. Id. Evidence is relevant if it tends in any degree to alter the probability of a material fact. Id. Neb. Rev. Stat. § 27-403 (Cum. Supp. 2024) allows the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice, con fusion of the issues, or misleading the jury, o r by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Stat e v. Price, supra. Unfair prejudice speaks to the capacity of some concededly relevant evidence to lure the fact finder into dec laring guilt on a ground differe nt fr om proof specific to the offense charged, commonly on an emotional basis. Id. When considering whether evidence of othe r acts is unfairly prejudic ial, courts consider whether the evidence tends to make conviction of the defendant more probable for a n incorrect reason. Id. Section 27-404(2) operates as an inclusionary rule of evidence. Se e State v. Wheeler, 314 Neb. 282, 989 N. W.2d 728 (2023). It provid es that evidenc e of other crimes, wr ongs, or acts is not admissible to prove the character of a person in order to show that h e or sh e acted in conformity therewith. See § 27-404(2). It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identit y, or absence of mistake or accident. Id. Here, the rea son for the inmate ’ s incarceration was relevant to Starkey ’ s knowledge and intent, both of which are elements of the charged offense. Section 28-416(3) states in relevant part, “ a person knowingly or intentionally possessing a controlled substance... shall be guilty of a Class IV felony. ” In the context of a criminal statute, “ intentionally ” mea ns willfully or purpo sely,

and not accidentally or invol untarily. State v. Erpelding, 292 Neb. 351, 874 N.W.2d 265 (2015). “ Knowingly ” means “ willfully ” as distinguished fr om “ accidentally or involuntarily. ” See State v. Lotter, 255 Neb. 456, 586 N.W.2d 591 (1998). In other words, to commit an act knowingly, the defendant must be aware of what he or she is doing. Id. A person possesse s a controlle d substance when he or she knows o f the nature or character of the substance and of its presence and has dominion or control over it. State v. Rocha, 295 Neb. 716, 890 N.W.2d 178 (2017). Starkey was found in actual possession of met hamphetamine while entering a state penitentiary to visi t an inmate convicted of possession with intent to distribute that same subst ance. The inmate ’ s conviction provided c ontext from which a jury c ould reasonably deduc e that Starkey ’ s possession was knowing and purposeful rather than accidental or inadvertent. The jury made an im plicit credibili ty finding when it found Starkey guilty of possession of a controlled substance (methamphetamine). The evidence here did not invite the jury to convict Starkey based on the inmate ’ s criminal history but se rved a legitimate probative purpose tied directly to Starkey ’ s mental state and conduct. Moreover, § 27-404(2) governs the admissibility of evidenc e of a defendant ’ s other c rime, wrongs, or acts. Evidence is not a n “ other act ” when it only tends to logically prove an element of the crime charged. See State v. Wheeler, supra (quoting State v. Freemont, 284 Neb. 179, 817 N.W.2d 277 (2012) (Cassel, Judge, concurring)). The charged offense re quired proof that Starkey knowingly or intentiona lly possessed the controlled substanc e. Evidence of the inmate ’ s history of methamphetamine distribution provided context supporting the presumption that Starkey knowingly possessed methamphetamine because she intended to deliver it to the inmate. Further, Starkey ’ s claim that the State improperly introduced circumstantial evidence of intent to distribute is refuted by the record. Starkey challenges the State ’ s comment that it was a “ reasonable inference that [Starkey] was at [NSPen] to distribute [methampheta mine] to the [inmate]. ” However, this statement initially a rose during a sidebar argument and was not meant to be heard by the jury. Thus, it did not constitute evidence. Likewise, the State ’ s closing argument, implicating the same inference, did not constitute evidence. While the jury was instructed that the lawyers w ere permitted to argue legitimate inferences from the evid ence, it was further instructed that the arguments of counsel were no t evidence and thus not to be used when de termining the facts. And a jury is presumed to follow its instructions. State v. Corral, 318 Neb. 940, 20 N.W.3d 372 (2025). Accordingly, the district court did not abuse its discretion in overruling S tarkey ’ s objection, and the admission of evidenc e regarding the inmate ’ s reason for incarceration was proper. Furthermore, the challenged statements did not constitute evidence. This assignment fails. M OTION TO S UPPRESS Starkey next argues that the dist rict court erred in denying her motion to suppress, claiming she unequivocally withdrew consent to the pat search. Starkey asserts t hat once consent was revoked, the warrantless searc h became unreasonable and that no probable cause existed to justify its continuation. We decline to review this assigned error. When a motion to suppr ess is overruled, the defendant must make a specific objection at trial to the offer of the evidence which was the subject of the motion to s uppress to preserve the issue for review on a ppeal. State v. Cox, 307 Neb. 762, 985 N.W.2d 395 (2020). Put another w ay,

a failure to object to evidence at trial, even though the evidence was the subj ect of a previous motion to suppress, waives the objection, and a party will not be heard to complain of the alleged error on appeal. Id. Because Starkey did not object at trial to the evidence that wa s the subjec t of the motion to suppress, she waived any right to assert error. We conclude that Starkey failed to p reserve the question of admissibility for appellate review. CONCLUSION For the re asons stated above, we conc lude that the district court correctly overruled Starkey ’ s objections. We further find that Starkey ’ s motion to suppress was not preserved for review. Therefore, we affirm the district court ’ s order. A FFIRMED.