State v. Bol

• Decision Date: 16 May 2014
• Docket Number: No. S–13–317.,S–13–317.
• Parties: State of Nebraska, appellee, v. Yai Bol, also known as Daniel D. Matit, appellant.
• Court: Nebraska Supreme Court

288 Neb. 144

846 N.W.2d 241

State of Nebraska, appellee,

v.Yai Bol, also known as Daniel D. Matit, appellant.

No. S–13–317.

Supreme Court of Nebraska.

Filed May 16, 2014.

Appeal from the District Court for Lancaster County: Paul D. Merritt, Jr., Judge. Affirmed.

Dennis R. Keefe, Lancaster County Public Defender, Jennifer M. Houlden, and, on brief, Elizabeth D. Elliott, for appellant.

Jon Bruning, Attorney General, George R. Love, and Joel R. Rische, Senior Certified Law Student, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller–Lerman, and Cassel, JJ.

Syllabus by the Court

1. Constitutional Law: Search and Seizure: Investigative Stops: Arrests: Probable Cause. The Fourth Amendment guarantees the right to be free of unreasonable search and seizure. This guarantee requires that an arrest be based on probable cause and limits investigatory stops to those made upon an articulable suspicion of criminal activity.

2. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and Error. In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, the appellate court reviews the trial court's findings for clear error. But whether those facts trigger or violate Fourth Amendment protections is a question of law that the appellate court reviews independently of the trial court's determination.

3. Criminal Law: Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. A traffic stop requires only that the stopping officer have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime.

4. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs: Probable Cause. If an officer has probable cause to stop a traffic violator, the stop is objectively reasonable.

5. Investigative Stops: Police Officers and Sheriffs: Probable Cause. In determining whether there is reasonable suspicion for an officer to make an investigatory stop, the totality of the circumstances must be taken into account.

6. Investigative Stops: Police Officers and Sheriffs: Probable Cause. The factual basis for an investigatory stop need not arise from the officer's personal observation, but may be supplied by information acquired from another person.

7. Investigative Stops: Arrests: Police Officers and Sheriffs: Probable Cause. Under what is commonly called the collective knowledge doctrine, an officer who does not have personal knowledge of the facts establishing probable cause for the arrest or reasonable suspicion for the stop may nevertheless make an arrest or a stop if the officer is merely carrying out directions of another officer who does have probable cause or reasonable suspicion.

8. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, 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. 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.

9. Prior Convictions: Proof. In a proceeding to enhance punishment because of prior convictions, the State has the burden of proving such prior convictions by a preponderance of the evidence.

10. Prior Convictions: Records: Proof. The existence of a prior conviction and the identity of the accused as the person convicted may be shown by any competent evidence, including the oral testimony of the accused and duly authenticated records maintained by the courts or penal and custodial authorities.

11. Drunk Driving: Prior Convictions: States. Under Nebraska law, a prior conviction for purposes of a prosecution for driving under the influence includes any conviction under a law of another state if, at the time of the conviction, the offense would have been a violation of Nebraska's driving under the influence statutes.

12. Drunk Driving: Prior Convictions: States: Proof. Where prior convictions of driving under the influence in other states are alleged as grounds for sentence enhancement, the prosecutor is required to present a court-certified copy or an authenticated copy of a prior conviction in another state which shall be prima facie evidence of such prior conviction.

13. Criminal Law: Judgments: Records. A court has inherent power in a criminal case to correct its records to reflect the “truth,” nunc pro tunc.

14. Judgments: Records. The purpose of an order nunc pro tunc is to correct a record which has been made so that it will truly record the action had, which through inadvertence or mistake was not truly recorded.

15. Judgments: Records. It is not the function of an order nunc pro tunc to change or revise a judgment or order, or to set aside a judgment actually rendered, or to render an order different from the one actually rendered, even though such order was not the order intended.

16. Judgments. Clerical errors may be corrected by an order nunc pro tunc, but judicial errors may not.

17. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

18. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

19. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime.

Stephan, J.

Yai Bol, also known as Daniel D. Matit, was convicted of one count of driving under the influence (DUI) with refusal of a chemical test and one count of driving during revocation. He appeals, challenging his convictions and sentences. Finding no error, we affirm the judgment of the district court.

I. FACTS

An information filed in the district court for Lancaster County charged Matit, also known as Bol, with three counts. The charges arose out of a traffic stop that occurred on May 7, 2012. The information was later amended to charge Bol, also known as Matit, with two counts: DUI with refusal of a chemical test, three prior convictions, and driving during revocation or impoundment, first offense. Because the operative information uses the name “Bol,” so will we in this opinion.

1. Motion to Suppress

Bol filed a motion to suppress evidence gathered during the traffic stop, claiming police lacked probable cause to initiate the stop. Sgt. Benjamin Miller of the Lincoln Police Department testified at a hearing on the motion. Miller testified that he was on patrol in the area of 13th and E Streets in Lincoln, Nebraska, at about 1:20 a.m. on May 7, 2012. While traveling west, he saw a sport utility vehicle (SUV) traveling east toward his patrol car begin to make a right turn at the intersection of 14th and E Streets, then erratically change direction, and then make another erratic turn, so that it ultimately made a complete U-turn and was heading west. The SUV did not use turn signals. After the SUV turned to head west, it almost immediately parked along the street. As Miller passed the SUV, he noticed it was parked almost 3 feet from the curb, which he believed was a violation of a city ordinance.

Miller decided to turn his car around and contact the driver of the SUV. As he did so, he saw Officer Anthony Gratz of the Lincoln Police Department turn onto E Street and drive toward the parked SUV. Miller asked Gratz to make contact with the driver of the SUV, because Gratz could get there more quickly. Gratz was thus the first officer to contact the SUV driver; Miller arrived shortly after Gratz.

After hearing this evidence, the district court denied Bol's motion to suppress. It found there was probable cause for police to initiate contact with the driver of the SUV based on Miller's observations of the erratic driving, the failure to use turn signals, and the manner in which the SUV was parked.

2. Trial

The case proceeded to a jury trial. At trial, Miller again explained what he observed prior to contacting the driver of the SUV and explained that he learned upon contacting the driver that he was Bol. Miller testified that he immediately noticed both that Bol had “bloodshot, watery eyes” and that there was an “odor of alcoholic beverage coming” from Bol and the SUV.

Bol agreed to participate in field sobriety tests, and Miller administered three: the horizontal gaze nystagmus test, the nine-step walk-and-turn test, and the one-leg stand test. Miller testified that Bol showed signs of impairment on each test. After Miller administered the tests, he placed Bol in his patrol car and asked him to take a preliminary breath test. Bol refused.

Miller then transported Bol to a detoxification center. At the center, Miller read Bol a postarrest chemical test advisement form, which informed Bol that he was required to take a chemical test and that refusal to do so was a separate crime. Bol refused to submit to the chemical test. Miller testified that after Bol refused the chemical test, Miller read Bol his Miranda rights.¹ Miller further testified that based upon his experience and training, Bol was under the influence of alcohol.

After Miller's testimony, ...