State v. Blackman

Decision Date02 July 1998
Docket NumberNo. S-97-105,S-97-105
Citation580 N.W.2d 546,254 Neb. 941
PartiesSTATE of Nebraska, Appellee, v. William C. BLACKMAN, Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Trial: Judgments: Appeal and Error. In a bench trial of a criminal case, the trial court's findings have the effect of a jury verdict and will not be set aside unless clearly erroneous.

2. Trial: Convictions: Appeal and Error. A conviction in a bench trial of a criminal case is sustained if the evidence, viewed and construed most favorably to the State, is sufficient to support that conviction. In making this determination, an appellate court does not resolve conflicts in evidence, pass on credibility of witnesses, evaluate explanations, or reweigh evidence presented, which are within a fact finder's province for disposition.

3. Drunk Driving: Evidence: Proof. A violation of Neb.Rev.Stat. § 60-6,196 (Reissue 1993) is one offense, but it can be proved in more than one way.

4. Circumstantial Evidence: Words and Phrases. Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such fact exists.

5. Convictions: Circumstantial Evidence. In finding a defendant guilty beyond a reasonable doubt, a finder of fact may rely upon circumstantial evidence and the inferences that may be drawn therefrom.

6. Circumstantial Evidence: Proof. A fact proved by circumstantial evidence is nonetheless a proven fact.

J. Blake Edwards and Robert S. Harvoy, of McGinley, Lane, O'Donnell, Reynolds & Edwards, P.C., Ogallala, for appellant.

Don Stenberg, Attorney General, and Mark D. Starr, Lincoln, for appellee.


STEPHAN, Justice.

The Nebraska Court of Appeals concluded that William C. Blackman's conviction for driving under the influence of alcohol (DUI), in violation of Neb.Rev.Stat. § 60-6,196 (Reissue 1993), should be reversed, based upon its determination that the evidence adduced at his trial was insufficient to sustain the conviction. State v. Blackman, 6 Neb.App. 294, 572 N.W.2d 101 (1997). We granted the State's petition for further review and conclude that the evidence, while mostly circumstantial, was sufficient to sustain the conviction.


In a complaint filed on June 5, 1996, the State alleged that while in Keith County on May 31, 1996, Blackman did "operate or have actual physical control of a motor vehicle while under the influence of alcoholic liquor or of any drug, or when he had a concentration of ten-hundredths of one gram or more by weight of alcohol per two hundred ten Dion John Neumiller, a deputy sheriff with the Keith County Sheriff's Department, testified that at approximately 10 p.m. on May 31, 1996, he was notified that a motorcycle was observed in a ditch along a county road in rural Keith County. When Neumiller arrived at the scene 15 to 20 minutes later, he observed the motorcycle in the ditch north of the road and a man, later identified as Blackman, "laying [sic] on the east side of the motorcycle with his feet in the ditch and his back up on the roadway." Neumiller described his initial encounter with Blackman as follows:

                liters of his breath."   A bench trial was held on October 7, 1996, in the county court for Keith County.  Two witnesses testified for the State

When I arrived the male wasn't moving. I exited my patrol vehicle and asked him if everything was okay. At that point, he did move, and he advised me that he had been westbound when he met two vehicles. After the second vehicle passed him, he lost control of the motorcycle and went into the north ditch and high centered it there.

Neumiller also testified that after he asked Blackman if he was hurt, Blackman "pretty much insisted that he could still ride the motorcycle" and that Blackman stated before the accident occurred, he was going home. Additionally, Neumiller testified that Blackman advised him that "he needed help getting the motorcycle out of the ditch and back up onto the roadway." However, Neumiller did not observe Blackman on the motorcycle at any point prior to or after arriving on the scene, and on cross-examination, Neumiller could not recall whether the keys to the motorcycle were in the ignition or if the motor was warm to the touch after he arrived at the scene.

During their encounter, Neumiller detected "a strong odor of an alcoholic beverage coming from" Blackman. When questioned, Blackman told Neumiller that he had not consumed alcohol since the previous evening. Neumiller observed that Blackman was able to stand without assistance but had difficulty walking, that his speech was slurred, and that his eyes were bloodshot. Blackman was unable to perform field sobriety tests satisfactorily. Based upon these observations and his education, training, and law enforcement experience, Neumiller formed the opinion that Blackman was under the influence of alcohol and arrested him on suspicion of DUI. Neumiller then transported Blackman to the Keith County Corrections Center.

Officer David Kling of the Ogallala Police Department testified that at the time of Blackman's arrest, Kling held a valid Class B permit to operate an Intoxilyzer 5000 machine. Kling administered an Intoxilyzer test to Blackman after Neumiller transported him to the corrections center. Following the 15-minute statutory observation period, which began at 11:11 p.m., Kling conducted the test and obtained the results at 11:28 p.m. Kling testified that he conducted the test in accordance with the rules and regulations of the state Department of Health. The parties stipulated that the Intoxilyzer was properly maintained and calibrated at the time of the test. The Intoxilyzer test results, received over Blackman's relevancy objection, established that Blackman had .134 grams of alcohol per 210 liters of breath as of 11:28 p.m., approximately 11/2 hours after Neumiller received the dispatcher's notice which led to his roadside encounter with Blackman.

The State rested following Kling's testimony, and Blackman moved for a directed verdict, asserting the prosecution's failure "to show any time that [Blackman] was in actual control of a motor vehicle, so as to constitute a reasonable time prior to the testing procedure that he was in control of the vehicle." After the court overruled this motion, Blackman rested without presenting evidence and renewed his motion for directed verdict. Following closing arguments, the trial court issued the following ruling from the bench:

The Court finds from an examination of the evidence that the State of Nebraska has met its burden of proof and finds the defendant, William C. Blackman, guilty of Driving Under the Influence of Alcoholic Liquor under ... § 60-6,196(1)(c), Class W Misdemeanor.

A journal entry filed on October 10, 1996, states that the court found Blackman guilty of " 'Driving Under the Influence of Alcoholic Blackman appealed to the district court for Keith County, alleging that the judgment of the county court was contrary to the facts and contrary to law. The district court found no error and affirmed Blackman's conviction and sentence. Blackman then perfected a timely appeal to the Court of Appeals, which, in a 2-to-1 opinion, reversed, with directions to dismiss.

                Liquor.' "   The court subsequently imposed sentence, which included 6 months' probation, a $200 fine plus costs, revocation of Blackman's operator's license for 60 days, an order that he not consume or possess alcohol, and an order that he submit to random chemical testing at his own expense

In the majority opinion, the Court of Appeals found that "[t]he undisputed evidence produced by the State was that Blackman was lying by his motorcycle and that he was under the influence of alcohol at the time Officer Neumiller arrived at the scene." State v. Blackman, 6 Neb.App. 294, 299, 572 N.W.2d 101, 104 (1997). However, the majority viewed the critical issue as "whether there is sufficient direct or circumstantial evidence from which a fact finder could infer that Blackman's intoxication and his operation or control of his motorcycle on a public road occurred simultaneously, not that Blackman was intoxicated when Officer Neumiller arrived." Id. at 298, 572 N.W.2d at 104. The majority concluded that because there was no direct or circumstantial evidence establishing when the accident occurred, the State failed to meet its burden of proving that "the breath test was administered within a reasonable time after Blackman last drove his motorcycle on a public road or highway," id. at 299, 572 N.W.2d at 104, and therefore, that the Intoxilyzer result should have been excluded from evidence. Id. at 299, 572 N.W.2d at 104. In addition, the majority held that Neumiller's testimony was insufficient to sustain the conviction because the State failed "to prove that Blackman's last act of driving occurred within a time period such that the intoxicated condition, in which he was found at the scene, had been continuous since his last act of driving." Id. at 300, 572 N.W.2d at 105. The Court of Appeals, therefore, reversed the decision of the district court and remanded the cause with directions to dismiss. The dissenting judge concluded that there was circumstantial evidence sufficient to affirm Blackman's conviction. We granted the State's petition for further review.


Restated, Blackman contends in his assignments of error that (1) the Intoxilyzer test was not timely administered and, therefore, should not have been admitted into evidence; and (2) his conviction was contrary to the evidence.


In a bench trial of a criminal case, the trial court's findings have the effect of a jury verdict and will not be set aside unless clearly erroneous. State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997); State v. Christner, 251 Neb. 549, 557 N.W.2d...

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