State Codes and Statutes

Statutes > Nebraska > Chapter28 > 28-416

28-416. Prohibited acts;violations; penalties.(1) Except as authorizedby the Uniform Controlled Substances Act, it shall be unlawful for any personknowingly or intentionally: (a) To manufacture, distribute, deliver, dispense,or possess with intent to manufacture, distribute, deliver, or dispense acontrolled substance; or (b) to create, distribute, or possess with intentto distribute a counterfeit controlled substance.(2) Except as provided in subsections (4), (5), (7), (8),(9), and (10) of this section, any person who violates subsection (1) of thissection with respect to: (a) A controlled substance classified in ScheduleI, II, or III of section 28-405 which is an exceptionally hazardous drug shallbe guilty of a Class II felony; (b) any other controlled substance classifiedin Schedule I, II, or III of section 28-405 shall be guilty of a Class IIIfelony; or (c) a controlled substance classified in Schedule IV or V of section 28-405 shall be guilty of a Class IIIA felony.(3) A person knowingly or intentionally possessing a controlledsubstance, except marijuana, unless such substance was obtained directly orpursuant to a medical order issued by a practitioner authorized to prescribewhile acting in the course of his or her professional practice, or exceptas otherwise authorized by the act, shall be guilty of a Class IV felony.(4)(a) Except as authorized by the Uniform Controlled SubstancesAct, any person eighteen years of age or older who knowingly or intentionallymanufactures, distributes, delivers, dispenses, or possesses with intent tomanufacture, distribute, deliver, or dispense a controlled substance or acounterfeit controlled substance (i) to a person under the age of eighteenyears, (ii) in, on, or within one thousand feet of the real property comprisinga public or private elementary, vocational, or secondary school, a communitycollege, a public or private college, junior college, or university, or aplayground, or (iii) within one hundred feet of a public or private youthcenter, public swimming pool, or video arcade facility shall be punished bythe next higher penalty classification than the penalty prescribed in subsection(2), (7), (8), (9), or (10) of this section, depending upon the controlledsubstance involved, for the first violation and for a second or subsequentviolation shall be punished by the next higher penalty classification thanthat prescribed for a first violation of this subsection, but in no eventshall such person be punished by a penalty greater than a Class IB felony.(b) For purposes of this subsection:(i) Playground shall mean any outdoor facility, includingany parking lot appurtenant to the facility, intended for recreation, opento the public, and with any portion containing three or more apparatus intendedfor the recreation of children, including sliding boards, swingsets, and teeterboards;(ii) Video arcade facility shall mean any facility legallyaccessible to persons under eighteen years of age, intended primarily forthe use of pinball and video machines for amusement, and containing a minimumof ten pinball or video machines; and(iii) Youth center shall mean any recreational facility orgymnasium, including any parking lot appurtenant to the facility or gymnasium,intended primarily for use by persons under eighteen years of age which regularlyprovides athletic, civic, or cultural activities.(5)(a) Except as authorized by the Uniform Controlled SubstancesAct, it shall be unlawful for any person eighteen years of age or older toknowingly 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, prepare for delivery, offerfor delivery, or possess with intent to do the same a controlled substanceor a counterfeit controlled substance.(b) Except as authorized by the Uniform Controlled SubstancesAct, it shall be unlawful for any person eighteen years of age or older toknowingly and intentionally employ, hire, use, cause, persuade, coax, induce,entice, seduce, or coerce any person under the age of eighteen years to aidand abet any person in the manufacture, transportation, distribution, carrying,delivery, dispensing, preparation for delivery, offering for delivery, orpossession with intent to do the same of a controlled substance or a counterfeitcontrolled substance.(c) Any person who violates subdivision (a) or (b) of thissubsection shall be punished by the next higher penalty classification thanthe penalty prescribed in subsection (2), (7), (8), (9), or (10) of this section,depending upon the controlled substance involved, for the first violationand for a second or subsequent violation shall be punished by the next higherpenalty classification than that prescribed for a first violation of thissubsection, but in no event shall such person be punished by a penalty greaterthan a Class IB felony.(6) It shall not be a defense to prosecution for violationof subsection (4) or (5) of this section that the defendant did not know theage of the person through whom the defendant violated such subsection.(7) Any person who violates subsection (1) of this sectionwith respect to cocaine or any mixture or substance containing a detectableamount of cocaine in a quantity of:(a) One hundred forty grams or more shall be guilty of a ClassIB felony;(b) At least twenty-eight grams but less than one hundredforty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shallbe guilty of a Class ID felony.(8) Any person who violates subsection (1) of this sectionwith respect to base cocaine (crack) or any mixture or substance containinga detectable amount of base cocaine in a quantity of:(a) One hundred forty grams or more shall be guilty of a ClassIB felony;(b) At least twenty-eight grams but less than one hundredforty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shallbe guilty of a Class ID felony.(9) Any person who violates subsection (1) of this sectionwith respect to heroin or any mixture or substance containing a detectableamount of heroin in a quantity of:(a) One hundred forty grams or more shall be guilty of a ClassIB felony;(b) At least twenty-eight grams but less than one hundredforty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shallbe guilty of a Class ID felony.(10) Any person who violates subsection (1) of this sectionwith respect to amphetamine, its salts, optical isomers, and salts of itsisomers, or with respect to methamphetamine, its salts, optical isomers, andsalts of its isomers, in a quantity of:(a) One hundred forty grams or more shall be guilty of a ClassIB felony;(b) At least twenty-eight grams but less than one hundredforty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shallbe guilty of a Class ID felony.(11) Any person knowingly or intentionally possessing marijuanaweighing more than one ounce but not more than one pound shall be guilty ofa Class III misdemeanor.(12) Any person knowingly or intentionally possessing marijuanaweighing more than one pound shall be guilty of a Class IV felony.(13) Any person knowingly or intentionally possessing marijuanaweighing one ounce or less shall:(a) For the first offense, be guilty of an infraction, receivea citation, be fined three hundred dollars, and be assigned to attend a courseas prescribed in section 29-433 if the judge determines that attending suchcourse is in the best interest of the individual defendant;(b) For the second offense, be guilty of a Class IV misdemeanor,receive a citation, and be fined four hundred dollars and may be imprisonednot to exceed five days; and(c) For the third and all subsequent offenses, be guilty ofa Class IIIA misdemeanor, receive a citation, be fined five hundred dollars,and be imprisoned not to exceed seven days.(14) Any person convicted of violating this section, if placedon probation, shall, as a condition of probation, satisfactorily attend andcomplete appropriate treatment and counseling on drug abuse provided by aprogram authorized under the Nebraska Behavioral Health Services Act or otherlicensed drug treatment facility.(15) Any person convicted of violating this section, if sentencedto the Department of Correctional Services, shall attend appropriate treatmentand counseling on drug abuse.(16) Any person knowingly or intentionally possessing a firearmwhile in violation of subsection (1) of this section shall be punished bythe next higher penalty classification than the penalty prescribed in subsection(2), (7), (8), (9), or (10) of this section, but in no event shall such personbe punished by a penalty greater than a Class IB felony.(17) A person knowingly or intentionally in possession ofmoney used or intended to be used to facilitate a violation of subsection(1) of this section shall be guilty of a Class IV felony.(18) In additionto the penalties provided in this section:(a) If the person convicted or adjudicated of violatingthis section is eighteen years of age or younger and has one or more licensesor permits issued under the Motor Vehicle Operator's License Act:(i) For the first offense,the court may, as a part of the judgment of conviction or adjudication, (A)impound any such licenses or permits for thirty days and (B) require suchperson to attend a drug education class;(ii) For a second offense, the court may, as a partof the judgment of conviction or adjudication, (A) impound any such licensesor permits for ninety days and (B) require such person to complete no fewerthan twenty and no more than forty hours of community service and to attenda drug education class; and(iii) For a third or subsequent offense, the courtmay, as a part of the judgment of conviction or adjudication, (A) impoundany such licenses or permits for twelve months and (B) require such personto complete no fewer than sixty hours of community service, to attend a drugeducation class, and to submit to a drug assessment by a licensed alcoholand drug counselor; and(b)If the person convicted or adjudicated of violating this section is eighteenyears of age or younger and does not have a permit or license issued underthe Motor Vehicle Operator's License Act:(i) For the first offense, the court may, as partof the judgment of conviction or adjudication, (A) prohibit such person fromobtaining any permit or any license pursuant to the act for which such personwould otherwise be eligible until thirty days after the date of such orderand (B) require such person to attend a drug education class;(ii) For a second offense,the court may, as part of the judgment of conviction or adjudication, (A)prohibit such person from obtaining any permit or any license pursuant tothe act for which such person would otherwise be eligible until ninety daysafter the date of such order and (B) require such person to complete no fewerthan twenty hours and no more than forty hours of community service and toattend a drug education class; and(iii) For a third or subsequent offense, the courtmay, as part of the judgment of conviction or adjudication, (A) prohibit suchperson from obtaining any permit or any license pursuant to the act for whichsuch person would otherwise be eligible until twelve months after the dateof such order and (B) require such person to complete no fewer than sixtyhours of community service, to attend a drug education class, and to submitto a drug assessment by a licensed alcohol and drug counselor.A copy of an abstractof the court's conviction or adjudication shall be transmitted to the Directorof Motor Vehicles pursuant to sections 60-497.01 to 60-497.04. SourceLaws 1977, LB 38, § 76; Laws 1978, LB 808, § 2; Laws 1980, LB 696, § 3; Laws 1985, LB 406, § 4; Laws 1986, LB 504, § 1; Laws 1989, LB 592, § 2; Laws 1991, LB 742, § 1; Laws 1993, LB 117, § 2; Laws 1995, LB 371, § 6; Laws 1997, LB 364, § 8; Laws 1999, LB 299, § 1; Laws 2001, LB 398, § 14; Laws 2003, LB 46, § 1; Laws 2004, LB 1083, § 86; Laws 2005, LB 117, § 3; Laws 2008, LB844, § 1; Laws 2010, LB800, § 4.Effective Date: July 15, 2010 Cross ReferencesMotor Vehicle Operator's License Act, see section 60-462.Nebraska Behavioral Health Services Act, see section 71-801. Annotations1. Elements2. Evidence3. Generally4. Jury instruction5. Plain view doctrine6. Possession7. Possession with intent to deliver8. Sentencing1. ElementsUnless a statute specifically provides otherwise, the quantity possessed of a controlled substance is not an essential element of the crime. State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993).The weight or amount of marijuana possessed is not an element of the substantive offense of possession of marijuana, and the weight or amount of marijuana only determines the grade of the offense and relates to the punishment which may be imposed on conviction for the offense of simple possession. Simple possession of marijuana is a lesser-included offense of possession of marijuana with intent to distribute. State v. Malone, 4 Neb. App. 904, 552 N.W.2d 772 (1996).2. EvidenceA passenger's mere presence in a vehicle with contraband is insufficient to support a finding of joint possession. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).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. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Evidence which was seized during a search based solely on an illegal wiretap must be suppressed and a conviction based on that evidence reversed, where it was agreed that the defendant had waived his rights under the fourth amendment to the U.S. Constitution, but had not waived his rights under section 86-701 et seq. (recodified in 2002 as section 86-271 et seq.). State v. Aulrich, 209 Neb. 546, 308 N.W.2d 739 (1981).3. GenerallyA juror 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. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Subsection (6) of this section and section 77-4301(2) address different types of misconduct and are not inconsistent. State v. Garza, 242 Neb. 573, 496 N.W.2d 448 (1993).A party claiming that the sale of a controlled substance was exempt has the burden of proof that an exemption was applicable. State v. Taylor, 221 Neb. 114, 375 N.W.2d 610 (1985).Subsection (6)(a) merely authorizes the issuance of a citation for certain violations; it does not prohibit an arrest for the same violation when otherwise authorized by law. State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981).4. Jury instructionThe statutory elements neither solely control nor exclusively dictate whether a lesser-included offense instruction for simple possession is required along with an instruction on possession of a controlled substance with intent to deliver. State v. Massa, 242 Neb. 70, 493 N.W.2d 175 (1992).5. Plain view doctrinePlain view doctrine circumvents need for a search warrant when contraband is inadvertently found while arresting officer is legally present at physical examination of accused. State v. Brockman, 231 Neb. 982, 439 N.W.2d 84 (1989).6. PossessionConstructive possession of an illegal substance may be proved by direct or circumstantial evidence. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Possession of a controlled substance is a lesser-included offense of distribution of the controlled substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Possession of an illegal substance can be inferred from a vehicle passenger's proximity to the substance or other circumstantial evidence that affirmatively links the passenger to the substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Under subsection (1) of this section, a defendant possesses a controlled substance when the defendant knows of the nature or character of the substance and its presence and has dominion or control over the substance. State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991).Under subsection (1) of this section, a defendant's control or dominion over premises where a controlled substance is located may establish the defendant's constructive possession of the controlled substance. State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991).Pursuant to subsection (3) of this section, there is sufficient evidence to convict the defendant of knowingly or intentionally possessing a controlled substance when he approaches an undercover officer, asks to buy drugs, physically examines the drugs, and then hands over money to pay for the drugs. State v. Clark, 236 Neb. 475, 461 N.W.2d 576 (1990).7. Possession with intent to deliverCircumstantial evidence may support a finding that a defendant intended to distribute, deliver, or dispense a controlled substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Circumstantial evidence to establish possession of a controlled substance with intent to distribute or deliver may consist of several factors: the quantity of the substance, the equipment and supplies found with it, the place it was found, the manner of packaging, and the testimony of witnesses experienced and knowledgeable in the field. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Evidence of the quantity of a controlled substance possessed combined with expert testimony that such quantity indicates an intent to deliver can be sufficient for a jury to infer an intent to deliver. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).When a defendant did not dispute the State's evidence on the separate element of intent to deliver, he was not entitled to an instruction on the lesser-included offense of simple possession. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Conviction of possession with intent to deliver a controlled substance affirmed in case where police officers noticed defendant in bar making a furtive gesture by pulling both hands from underneath bar; the officers subsequently found a bag with 11 snow seals behind the carpet under the bar within arm's distance from defendant; and defendant could not adequately account for the money he had in his possession. State v. Alcorn, 240 Neb. 400, 481 N.W.2d 921 (1992).Possession with intent to deliver a controlled substance is not a victimless crime. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991).8. SentencingSentence of 3 to 5 years' imprisonment was not excessive for conviction under subsection (1)(a) of this statute. State v. Hodge and Carpenter, 225 Neb. 94, 402 N.W.2d 867 (1987).

State Codes and Statutes

Statutes > Nebraska > Chapter28 > 28-416

28-416. Prohibited acts;violations; penalties.(1) Except as authorizedby the Uniform Controlled Substances Act, it shall be unlawful for any personknowingly or intentionally: (a) To manufacture, distribute, deliver, dispense,or possess with intent to manufacture, distribute, deliver, or dispense acontrolled substance; or (b) to create, distribute, or possess with intentto distribute a counterfeit controlled substance.(2) Except as provided in subsections (4), (5), (7), (8),(9), and (10) of this section, any person who violates subsection (1) of thissection with respect to: (a) A controlled substance classified in ScheduleI, II, or III of section 28-405 which is an exceptionally hazardous drug shallbe guilty of a Class II felony; (b) any other controlled substance classifiedin Schedule I, II, or III of section 28-405 shall be guilty of a Class IIIfelony; or (c) a controlled substance classified in Schedule IV or V of section 28-405 shall be guilty of a Class IIIA felony.(3) A person knowingly or intentionally possessing a controlledsubstance, except marijuana, unless such substance was obtained directly orpursuant to a medical order issued by a practitioner authorized to prescribewhile acting in the course of his or her professional practice, or exceptas otherwise authorized by the act, shall be guilty of a Class IV felony.(4)(a) Except as authorized by the Uniform Controlled SubstancesAct, any person eighteen years of age or older who knowingly or intentionallymanufactures, distributes, delivers, dispenses, or possesses with intent tomanufacture, distribute, deliver, or dispense a controlled substance or acounterfeit controlled substance (i) to a person under the age of eighteenyears, (ii) in, on, or within one thousand feet of the real property comprisinga public or private elementary, vocational, or secondary school, a communitycollege, a public or private college, junior college, or university, or aplayground, or (iii) within one hundred feet of a public or private youthcenter, public swimming pool, or video arcade facility shall be punished bythe next higher penalty classification than the penalty prescribed in subsection(2), (7), (8), (9), or (10) of this section, depending upon the controlledsubstance involved, for the first violation and for a second or subsequentviolation shall be punished by the next higher penalty classification thanthat prescribed for a first violation of this subsection, but in no eventshall such person be punished by a penalty greater than a Class IB felony.(b) For purposes of this subsection:(i) Playground shall mean any outdoor facility, includingany parking lot appurtenant to the facility, intended for recreation, opento the public, and with any portion containing three or more apparatus intendedfor the recreation of children, including sliding boards, swingsets, and teeterboards;(ii) Video arcade facility shall mean any facility legallyaccessible to persons under eighteen years of age, intended primarily forthe use of pinball and video machines for amusement, and containing a minimumof ten pinball or video machines; and(iii) Youth center shall mean any recreational facility orgymnasium, including any parking lot appurtenant to the facility or gymnasium,intended primarily for use by persons under eighteen years of age which regularlyprovides athletic, civic, or cultural activities.(5)(a) Except as authorized by the Uniform Controlled SubstancesAct, it shall be unlawful for any person eighteen years of age or older toknowingly 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, prepare for delivery, offerfor delivery, or possess with intent to do the same a controlled substanceor a counterfeit controlled substance.(b) Except as authorized by the Uniform Controlled SubstancesAct, it shall be unlawful for any person eighteen years of age or older toknowingly and intentionally employ, hire, use, cause, persuade, coax, induce,entice, seduce, or coerce any person under the age of eighteen years to aidand abet any person in the manufacture, transportation, distribution, carrying,delivery, dispensing, preparation for delivery, offering for delivery, orpossession with intent to do the same of a controlled substance or a counterfeitcontrolled substance.(c) Any person who violates subdivision (a) or (b) of thissubsection shall be punished by the next higher penalty classification thanthe penalty prescribed in subsection (2), (7), (8), (9), or (10) of this section,depending upon the controlled substance involved, for the first violationand for a second or subsequent violation shall be punished by the next higherpenalty classification than that prescribed for a first violation of thissubsection, but in no event shall such person be punished by a penalty greaterthan a Class IB felony.(6) It shall not be a defense to prosecution for violationof subsection (4) or (5) of this section that the defendant did not know theage of the person through whom the defendant violated such subsection.(7) Any person who violates subsection (1) of this sectionwith respect to cocaine or any mixture or substance containing a detectableamount of cocaine in a quantity of:(a) One hundred forty grams or more shall be guilty of a ClassIB felony;(b) At least twenty-eight grams but less than one hundredforty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shallbe guilty of a Class ID felony.(8) Any person who violates subsection (1) of this sectionwith respect to base cocaine (crack) or any mixture or substance containinga detectable amount of base cocaine in a quantity of:(a) One hundred forty grams or more shall be guilty of a ClassIB felony;(b) At least twenty-eight grams but less than one hundredforty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shallbe guilty of a Class ID felony.(9) Any person who violates subsection (1) of this sectionwith respect to heroin or any mixture or substance containing a detectableamount of heroin in a quantity of:(a) One hundred forty grams or more shall be guilty of a ClassIB felony;(b) At least twenty-eight grams but less than one hundredforty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shallbe guilty of a Class ID felony.(10) Any person who violates subsection (1) of this sectionwith respect to amphetamine, its salts, optical isomers, and salts of itsisomers, or with respect to methamphetamine, its salts, optical isomers, andsalts of its isomers, in a quantity of:(a) One hundred forty grams or more shall be guilty of a ClassIB felony;(b) At least twenty-eight grams but less than one hundredforty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shallbe guilty of a Class ID felony.(11) Any person knowingly or intentionally possessing marijuanaweighing more than one ounce but not more than one pound shall be guilty ofa Class III misdemeanor.(12) Any person knowingly or intentionally possessing marijuanaweighing more than one pound shall be guilty of a Class IV felony.(13) Any person knowingly or intentionally possessing marijuanaweighing one ounce or less shall:(a) For the first offense, be guilty of an infraction, receivea citation, be fined three hundred dollars, and be assigned to attend a courseas prescribed in section 29-433 if the judge determines that attending suchcourse is in the best interest of the individual defendant;(b) For the second offense, be guilty of a Class IV misdemeanor,receive a citation, and be fined four hundred dollars and may be imprisonednot to exceed five days; and(c) For the third and all subsequent offenses, be guilty ofa Class IIIA misdemeanor, receive a citation, be fined five hundred dollars,and be imprisoned not to exceed seven days.(14) Any person convicted of violating this section, if placedon probation, shall, as a condition of probation, satisfactorily attend andcomplete appropriate treatment and counseling on drug abuse provided by aprogram authorized under the Nebraska Behavioral Health Services Act or otherlicensed drug treatment facility.(15) Any person convicted of violating this section, if sentencedto the Department of Correctional Services, shall attend appropriate treatmentand counseling on drug abuse.(16) Any person knowingly or intentionally possessing a firearmwhile in violation of subsection (1) of this section shall be punished bythe next higher penalty classification than the penalty prescribed in subsection(2), (7), (8), (9), or (10) of this section, but in no event shall such personbe punished by a penalty greater than a Class IB felony.(17) A person knowingly or intentionally in possession ofmoney used or intended to be used to facilitate a violation of subsection(1) of this section shall be guilty of a Class IV felony.(18) In additionto the penalties provided in this section:(a) If the person convicted or adjudicated of violatingthis section is eighteen years of age or younger and has one or more licensesor permits issued under the Motor Vehicle Operator's License Act:(i) For the first offense,the court may, as a part of the judgment of conviction or adjudication, (A)impound any such licenses or permits for thirty days and (B) require suchperson to attend a drug education class;(ii) For a second offense, the court may, as a partof the judgment of conviction or adjudication, (A) impound any such licensesor permits for ninety days and (B) require such person to complete no fewerthan twenty and no more than forty hours of community service and to attenda drug education class; and(iii) For a third or subsequent offense, the courtmay, as a part of the judgment of conviction or adjudication, (A) impoundany such licenses or permits for twelve months and (B) require such personto complete no fewer than sixty hours of community service, to attend a drugeducation class, and to submit to a drug assessment by a licensed alcoholand drug counselor; and(b)If the person convicted or adjudicated of violating this section is eighteenyears of age or younger and does not have a permit or license issued underthe Motor Vehicle Operator's License Act:(i) For the first offense, the court may, as partof the judgment of conviction or adjudication, (A) prohibit such person fromobtaining any permit or any license pursuant to the act for which such personwould otherwise be eligible until thirty days after the date of such orderand (B) require such person to attend a drug education class;(ii) For a second offense,the court may, as part of the judgment of conviction or adjudication, (A)prohibit such person from obtaining any permit or any license pursuant tothe act for which such person would otherwise be eligible until ninety daysafter the date of such order and (B) require such person to complete no fewerthan twenty hours and no more than forty hours of community service and toattend a drug education class; and(iii) For a third or subsequent offense, the courtmay, as part of the judgment of conviction or adjudication, (A) prohibit suchperson from obtaining any permit or any license pursuant to the act for whichsuch person would otherwise be eligible until twelve months after the dateof such order and (B) require such person to complete no fewer than sixtyhours of community service, to attend a drug education class, and to submitto a drug assessment by a licensed alcohol and drug counselor.A copy of an abstractof the court's conviction or adjudication shall be transmitted to the Directorof Motor Vehicles pursuant to sections 60-497.01 to 60-497.04. SourceLaws 1977, LB 38, § 76; Laws 1978, LB 808, § 2; Laws 1980, LB 696, § 3; Laws 1985, LB 406, § 4; Laws 1986, LB 504, § 1; Laws 1989, LB 592, § 2; Laws 1991, LB 742, § 1; Laws 1993, LB 117, § 2; Laws 1995, LB 371, § 6; Laws 1997, LB 364, § 8; Laws 1999, LB 299, § 1; Laws 2001, LB 398, § 14; Laws 2003, LB 46, § 1; Laws 2004, LB 1083, § 86; Laws 2005, LB 117, § 3; Laws 2008, LB844, § 1; Laws 2010, LB800, § 4.Effective Date: July 15, 2010 Cross ReferencesMotor Vehicle Operator's License Act, see section 60-462.Nebraska Behavioral Health Services Act, see section 71-801. Annotations1. Elements2. Evidence3. Generally4. Jury instruction5. Plain view doctrine6. Possession7. Possession with intent to deliver8. Sentencing1. ElementsUnless a statute specifically provides otherwise, the quantity possessed of a controlled substance is not an essential element of the crime. State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993).The weight or amount of marijuana possessed is not an element of the substantive offense of possession of marijuana, and the weight or amount of marijuana only determines the grade of the offense and relates to the punishment which may be imposed on conviction for the offense of simple possession. Simple possession of marijuana is a lesser-included offense of possession of marijuana with intent to distribute. State v. Malone, 4 Neb. App. 904, 552 N.W.2d 772 (1996).2. EvidenceA passenger's mere presence in a vehicle with contraband is insufficient to support a finding of joint possession. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).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. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Evidence which was seized during a search based solely on an illegal wiretap must be suppressed and a conviction based on that evidence reversed, where it was agreed that the defendant had waived his rights under the fourth amendment to the U.S. Constitution, but had not waived his rights under section 86-701 et seq. (recodified in 2002 as section 86-271 et seq.). State v. Aulrich, 209 Neb. 546, 308 N.W.2d 739 (1981).3. GenerallyA juror 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. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Subsection (6) of this section and section 77-4301(2) address different types of misconduct and are not inconsistent. State v. Garza, 242 Neb. 573, 496 N.W.2d 448 (1993).A party claiming that the sale of a controlled substance was exempt has the burden of proof that an exemption was applicable. State v. Taylor, 221 Neb. 114, 375 N.W.2d 610 (1985).Subsection (6)(a) merely authorizes the issuance of a citation for certain violations; it does not prohibit an arrest for the same violation when otherwise authorized by law. State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981).4. Jury instructionThe statutory elements neither solely control nor exclusively dictate whether a lesser-included offense instruction for simple possession is required along with an instruction on possession of a controlled substance with intent to deliver. State v. Massa, 242 Neb. 70, 493 N.W.2d 175 (1992).5. Plain view doctrinePlain view doctrine circumvents need for a search warrant when contraband is inadvertently found while arresting officer is legally present at physical examination of accused. State v. Brockman, 231 Neb. 982, 439 N.W.2d 84 (1989).6. PossessionConstructive possession of an illegal substance may be proved by direct or circumstantial evidence. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Possession of a controlled substance is a lesser-included offense of distribution of the controlled substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Possession of an illegal substance can be inferred from a vehicle passenger's proximity to the substance or other circumstantial evidence that affirmatively links the passenger to the substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Under subsection (1) of this section, a defendant possesses a controlled substance when the defendant knows of the nature or character of the substance and its presence and has dominion or control over the substance. State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991).Under subsection (1) of this section, a defendant's control or dominion over premises where a controlled substance is located may establish the defendant's constructive possession of the controlled substance. State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991).Pursuant to subsection (3) of this section, there is sufficient evidence to convict the defendant of knowingly or intentionally possessing a controlled substance when he approaches an undercover officer, asks to buy drugs, physically examines the drugs, and then hands over money to pay for the drugs. State v. Clark, 236 Neb. 475, 461 N.W.2d 576 (1990).7. Possession with intent to deliverCircumstantial evidence may support a finding that a defendant intended to distribute, deliver, or dispense a controlled substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Circumstantial evidence to establish possession of a controlled substance with intent to distribute or deliver may consist of several factors: the quantity of the substance, the equipment and supplies found with it, the place it was found, the manner of packaging, and the testimony of witnesses experienced and knowledgeable in the field. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Evidence of the quantity of a controlled substance possessed combined with expert testimony that such quantity indicates an intent to deliver can be sufficient for a jury to infer an intent to deliver. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).When a defendant did not dispute the State's evidence on the separate element of intent to deliver, he was not entitled to an instruction on the lesser-included offense of simple possession. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Conviction of possession with intent to deliver a controlled substance affirmed in case where police officers noticed defendant in bar making a furtive gesture by pulling both hands from underneath bar; the officers subsequently found a bag with 11 snow seals behind the carpet under the bar within arm's distance from defendant; and defendant could not adequately account for the money he had in his possession. State v. Alcorn, 240 Neb. 400, 481 N.W.2d 921 (1992).Possession with intent to deliver a controlled substance is not a victimless crime. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991).8. SentencingSentence of 3 to 5 years' imprisonment was not excessive for conviction under subsection (1)(a) of this statute. State v. Hodge and Carpenter, 225 Neb. 94, 402 N.W.2d 867 (1987).

State Codes and Statutes

State Codes and Statutes

Statutes > Nebraska > Chapter28 > 28-416

28-416. Prohibited acts;violations; penalties.(1) Except as authorizedby the Uniform Controlled Substances Act, it shall be unlawful for any personknowingly or intentionally: (a) To manufacture, distribute, deliver, dispense,or possess with intent to manufacture, distribute, deliver, or dispense acontrolled substance; or (b) to create, distribute, or possess with intentto distribute a counterfeit controlled substance.(2) Except as provided in subsections (4), (5), (7), (8),(9), and (10) of this section, any person who violates subsection (1) of thissection with respect to: (a) A controlled substance classified in ScheduleI, II, or III of section 28-405 which is an exceptionally hazardous drug shallbe guilty of a Class II felony; (b) any other controlled substance classifiedin Schedule I, II, or III of section 28-405 shall be guilty of a Class IIIfelony; or (c) a controlled substance classified in Schedule IV or V of section 28-405 shall be guilty of a Class IIIA felony.(3) A person knowingly or intentionally possessing a controlledsubstance, except marijuana, unless such substance was obtained directly orpursuant to a medical order issued by a practitioner authorized to prescribewhile acting in the course of his or her professional practice, or exceptas otherwise authorized by the act, shall be guilty of a Class IV felony.(4)(a) Except as authorized by the Uniform Controlled SubstancesAct, any person eighteen years of age or older who knowingly or intentionallymanufactures, distributes, delivers, dispenses, or possesses with intent tomanufacture, distribute, deliver, or dispense a controlled substance or acounterfeit controlled substance (i) to a person under the age of eighteenyears, (ii) in, on, or within one thousand feet of the real property comprisinga public or private elementary, vocational, or secondary school, a communitycollege, a public or private college, junior college, or university, or aplayground, or (iii) within one hundred feet of a public or private youthcenter, public swimming pool, or video arcade facility shall be punished bythe next higher penalty classification than the penalty prescribed in subsection(2), (7), (8), (9), or (10) of this section, depending upon the controlledsubstance involved, for the first violation and for a second or subsequentviolation shall be punished by the next higher penalty classification thanthat prescribed for a first violation of this subsection, but in no eventshall such person be punished by a penalty greater than a Class IB felony.(b) For purposes of this subsection:(i) Playground shall mean any outdoor facility, includingany parking lot appurtenant to the facility, intended for recreation, opento the public, and with any portion containing three or more apparatus intendedfor the recreation of children, including sliding boards, swingsets, and teeterboards;(ii) Video arcade facility shall mean any facility legallyaccessible to persons under eighteen years of age, intended primarily forthe use of pinball and video machines for amusement, and containing a minimumof ten pinball or video machines; and(iii) Youth center shall mean any recreational facility orgymnasium, including any parking lot appurtenant to the facility or gymnasium,intended primarily for use by persons under eighteen years of age which regularlyprovides athletic, civic, or cultural activities.(5)(a) Except as authorized by the Uniform Controlled SubstancesAct, it shall be unlawful for any person eighteen years of age or older toknowingly 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, prepare for delivery, offerfor delivery, or possess with intent to do the same a controlled substanceor a counterfeit controlled substance.(b) Except as authorized by the Uniform Controlled SubstancesAct, it shall be unlawful for any person eighteen years of age or older toknowingly and intentionally employ, hire, use, cause, persuade, coax, induce,entice, seduce, or coerce any person under the age of eighteen years to aidand abet any person in the manufacture, transportation, distribution, carrying,delivery, dispensing, preparation for delivery, offering for delivery, orpossession with intent to do the same of a controlled substance or a counterfeitcontrolled substance.(c) Any person who violates subdivision (a) or (b) of thissubsection shall be punished by the next higher penalty classification thanthe penalty prescribed in subsection (2), (7), (8), (9), or (10) of this section,depending upon the controlled substance involved, for the first violationand for a second or subsequent violation shall be punished by the next higherpenalty classification than that prescribed for a first violation of thissubsection, but in no event shall such person be punished by a penalty greaterthan a Class IB felony.(6) It shall not be a defense to prosecution for violationof subsection (4) or (5) of this section that the defendant did not know theage of the person through whom the defendant violated such subsection.(7) Any person who violates subsection (1) of this sectionwith respect to cocaine or any mixture or substance containing a detectableamount of cocaine in a quantity of:(a) One hundred forty grams or more shall be guilty of a ClassIB felony;(b) At least twenty-eight grams but less than one hundredforty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shallbe guilty of a Class ID felony.(8) Any person who violates subsection (1) of this sectionwith respect to base cocaine (crack) or any mixture or substance containinga detectable amount of base cocaine in a quantity of:(a) One hundred forty grams or more shall be guilty of a ClassIB felony;(b) At least twenty-eight grams but less than one hundredforty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shallbe guilty of a Class ID felony.(9) Any person who violates subsection (1) of this sectionwith respect to heroin or any mixture or substance containing a detectableamount of heroin in a quantity of:(a) One hundred forty grams or more shall be guilty of a ClassIB felony;(b) At least twenty-eight grams but less than one hundredforty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shallbe guilty of a Class ID felony.(10) Any person who violates subsection (1) of this sectionwith respect to amphetamine, its salts, optical isomers, and salts of itsisomers, or with respect to methamphetamine, its salts, optical isomers, andsalts of its isomers, in a quantity of:(a) One hundred forty grams or more shall be guilty of a ClassIB felony;(b) At least twenty-eight grams but less than one hundredforty grams shall be guilty of a Class IC felony; or(c) At least ten grams but less than twenty-eight grams shallbe guilty of a Class ID felony.(11) Any person knowingly or intentionally possessing marijuanaweighing more than one ounce but not more than one pound shall be guilty ofa Class III misdemeanor.(12) Any person knowingly or intentionally possessing marijuanaweighing more than one pound shall be guilty of a Class IV felony.(13) Any person knowingly or intentionally possessing marijuanaweighing one ounce or less shall:(a) For the first offense, be guilty of an infraction, receivea citation, be fined three hundred dollars, and be assigned to attend a courseas prescribed in section 29-433 if the judge determines that attending suchcourse is in the best interest of the individual defendant;(b) For the second offense, be guilty of a Class IV misdemeanor,receive a citation, and be fined four hundred dollars and may be imprisonednot to exceed five days; and(c) For the third and all subsequent offenses, be guilty ofa Class IIIA misdemeanor, receive a citation, be fined five hundred dollars,and be imprisoned not to exceed seven days.(14) Any person convicted of violating this section, if placedon probation, shall, as a condition of probation, satisfactorily attend andcomplete appropriate treatment and counseling on drug abuse provided by aprogram authorized under the Nebraska Behavioral Health Services Act or otherlicensed drug treatment facility.(15) Any person convicted of violating this section, if sentencedto the Department of Correctional Services, shall attend appropriate treatmentand counseling on drug abuse.(16) Any person knowingly or intentionally possessing a firearmwhile in violation of subsection (1) of this section shall be punished bythe next higher penalty classification than the penalty prescribed in subsection(2), (7), (8), (9), or (10) of this section, but in no event shall such personbe punished by a penalty greater than a Class IB felony.(17) A person knowingly or intentionally in possession ofmoney used or intended to be used to facilitate a violation of subsection(1) of this section shall be guilty of a Class IV felony.(18) In additionto the penalties provided in this section:(a) If the person convicted or adjudicated of violatingthis section is eighteen years of age or younger and has one or more licensesor permits issued under the Motor Vehicle Operator's License Act:(i) For the first offense,the court may, as a part of the judgment of conviction or adjudication, (A)impound any such licenses or permits for thirty days and (B) require suchperson to attend a drug education class;(ii) For a second offense, the court may, as a partof the judgment of conviction or adjudication, (A) impound any such licensesor permits for ninety days and (B) require such person to complete no fewerthan twenty and no more than forty hours of community service and to attenda drug education class; and(iii) For a third or subsequent offense, the courtmay, as a part of the judgment of conviction or adjudication, (A) impoundany such licenses or permits for twelve months and (B) require such personto complete no fewer than sixty hours of community service, to attend a drugeducation class, and to submit to a drug assessment by a licensed alcoholand drug counselor; and(b)If the person convicted or adjudicated of violating this section is eighteenyears of age or younger and does not have a permit or license issued underthe Motor Vehicle Operator's License Act:(i) For the first offense, the court may, as partof the judgment of conviction or adjudication, (A) prohibit such person fromobtaining any permit or any license pursuant to the act for which such personwould otherwise be eligible until thirty days after the date of such orderand (B) require such person to attend a drug education class;(ii) For a second offense,the court may, as part of the judgment of conviction or adjudication, (A)prohibit such person from obtaining any permit or any license pursuant tothe act for which such person would otherwise be eligible until ninety daysafter the date of such order and (B) require such person to complete no fewerthan twenty hours and no more than forty hours of community service and toattend a drug education class; and(iii) For a third or subsequent offense, the courtmay, as part of the judgment of conviction or adjudication, (A) prohibit suchperson from obtaining any permit or any license pursuant to the act for whichsuch person would otherwise be eligible until twelve months after the dateof such order and (B) require such person to complete no fewer than sixtyhours of community service, to attend a drug education class, and to submitto a drug assessment by a licensed alcohol and drug counselor.A copy of an abstractof the court's conviction or adjudication shall be transmitted to the Directorof Motor Vehicles pursuant to sections 60-497.01 to 60-497.04. SourceLaws 1977, LB 38, § 76; Laws 1978, LB 808, § 2; Laws 1980, LB 696, § 3; Laws 1985, LB 406, § 4; Laws 1986, LB 504, § 1; Laws 1989, LB 592, § 2; Laws 1991, LB 742, § 1; Laws 1993, LB 117, § 2; Laws 1995, LB 371, § 6; Laws 1997, LB 364, § 8; Laws 1999, LB 299, § 1; Laws 2001, LB 398, § 14; Laws 2003, LB 46, § 1; Laws 2004, LB 1083, § 86; Laws 2005, LB 117, § 3; Laws 2008, LB844, § 1; Laws 2010, LB800, § 4.Effective Date: July 15, 2010 Cross ReferencesMotor Vehicle Operator's License Act, see section 60-462.Nebraska Behavioral Health Services Act, see section 71-801. Annotations1. Elements2. Evidence3. Generally4. Jury instruction5. Plain view doctrine6. Possession7. Possession with intent to deliver8. Sentencing1. ElementsUnless a statute specifically provides otherwise, the quantity possessed of a controlled substance is not an essential element of the crime. State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993).The weight or amount of marijuana possessed is not an element of the substantive offense of possession of marijuana, and the weight or amount of marijuana only determines the grade of the offense and relates to the punishment which may be imposed on conviction for the offense of simple possession. Simple possession of marijuana is a lesser-included offense of possession of marijuana with intent to distribute. State v. Malone, 4 Neb. App. 904, 552 N.W.2d 772 (1996).2. EvidenceA passenger's mere presence in a vehicle with contraband is insufficient to support a finding of joint possession. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).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. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Evidence which was seized during a search based solely on an illegal wiretap must be suppressed and a conviction based on that evidence reversed, where it was agreed that the defendant had waived his rights under the fourth amendment to the U.S. Constitution, but had not waived his rights under section 86-701 et seq. (recodified in 2002 as section 86-271 et seq.). State v. Aulrich, 209 Neb. 546, 308 N.W.2d 739 (1981).3. GenerallyA juror 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. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Subsection (6) of this section and section 77-4301(2) address different types of misconduct and are not inconsistent. State v. Garza, 242 Neb. 573, 496 N.W.2d 448 (1993).A party claiming that the sale of a controlled substance was exempt has the burden of proof that an exemption was applicable. State v. Taylor, 221 Neb. 114, 375 N.W.2d 610 (1985).Subsection (6)(a) merely authorizes the issuance of a citation for certain violations; it does not prohibit an arrest for the same violation when otherwise authorized by law. State v. Watts, 209 Neb. 371, 307 N.W.2d 816 (1981).4. Jury instructionThe statutory elements neither solely control nor exclusively dictate whether a lesser-included offense instruction for simple possession is required along with an instruction on possession of a controlled substance with intent to deliver. State v. Massa, 242 Neb. 70, 493 N.W.2d 175 (1992).5. Plain view doctrinePlain view doctrine circumvents need for a search warrant when contraband is inadvertently found while arresting officer is legally present at physical examination of accused. State v. Brockman, 231 Neb. 982, 439 N.W.2d 84 (1989).6. PossessionConstructive possession of an illegal substance may be proved by direct or circumstantial evidence. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Possession of a controlled substance is a lesser-included offense of distribution of the controlled substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Possession of an illegal substance can be inferred from a vehicle passenger's proximity to the substance or other circumstantial evidence that affirmatively links the passenger to the substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Under subsection (1) of this section, a defendant possesses a controlled substance when the defendant knows of the nature or character of the substance and its presence and has dominion or control over the substance. State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991).Under subsection (1) of this section, a defendant's control or dominion over premises where a controlled substance is located may establish the defendant's constructive possession of the controlled substance. State v. Lonnecker, 237 Neb. 207, 465 N.W.2d 737 (1991).Pursuant to subsection (3) of this section, there is sufficient evidence to convict the defendant of knowingly or intentionally possessing a controlled substance when he approaches an undercover officer, asks to buy drugs, physically examines the drugs, and then hands over money to pay for the drugs. State v. Clark, 236 Neb. 475, 461 N.W.2d 576 (1990).7. Possession with intent to deliverCircumstantial evidence may support a finding that a defendant intended to distribute, deliver, or dispense a controlled substance. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Circumstantial evidence to establish possession of a controlled substance with intent to distribute or deliver may consist of several factors: the quantity of the substance, the equipment and supplies found with it, the place it was found, the manner of packaging, and the testimony of witnesses experienced and knowledgeable in the field. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Evidence of the quantity of a controlled substance possessed combined with expert testimony that such quantity indicates an intent to deliver can be sufficient for a jury to infer an intent to deliver. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).When a defendant did not dispute the State's evidence on the separate element of intent to deliver, he was not entitled to an instruction on the lesser-included offense of simple possession. State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).Conviction of possession with intent to deliver a controlled substance affirmed in case where police officers noticed defendant in bar making a furtive gesture by pulling both hands from underneath bar; the officers subsequently found a bag with 11 snow seals behind the carpet under the bar within arm's distance from defendant; and defendant could not adequately account for the money he had in his possession. State v. Alcorn, 240 Neb. 400, 481 N.W.2d 921 (1992).Possession with intent to deliver a controlled substance is not a victimless crime. State v. Rodgers, 237 Neb. 506, 466 N.W.2d 537 (1991).8. SentencingSentence of 3 to 5 years' imprisonment was not excessive for conviction under subsection (1)(a) of this statute. State v. Hodge and Carpenter, 225 Neb. 94, 402 N.W.2d 867 (1987).