State v. Brauer
| Citation | 743 N.W.2d 655,16 Neb. App. 257 |
| Decision Date | 18 December 2007 |
| Docket Number | No. A-07-256.,A-07-256. |
| Parties | STATE of Nebraska, Appellee v. Chad A. BRAUER, Appellant. |
| Court | Court of Appeals of Nebraska |
James D. McFarland, of McFarland Law Office, for appellant.
Jon Bruning, Attorney General, and George R. Love, Columbus, for appellee.
Chad A. Brauer appeals an order of the district court which affirmed the county court's conviction and sentencing of Brauer on a charge of second-offense driving under the influence of alcohol (DUI). On appeal, Brauer asserts that the district court erred in denying Brauer's motion for reconsideration and rehearing, in which Brauer asserted that the county court had entered an ambiguous judgment by finding Brauer guilty of DUI or operating a motor vehicle with an impermissible blood alcohol concentration. Additionally, Brauer asserts that the district court erred in affirming the county court's orders denying Brauer's motions in limine and for suppression of statements and that the district court erred in affirming Brauer's conviction. We find that based on the entire record, it is clear that in its judgment, the county court found Brauer guilty of both DUI and operating a motor vehicle with an impermissible blood alcohol concentration. Additionally, we find no merit to Brauer's assertions concerning his pretrial motions and we find that there was sufficient evidence to support Brauer's conviction. We affirm.
On October 24, 2004, Trooper Jarrod Connelly was on patrol when he observed a vehicle driven by Brauer exceeding the speed limit. Trooper Connelly stopped the vehicle and made contact with Brauer and the vehicle's other two occupants. According to Trooper Connelly, he detected an odor of alcohol coming from inside the vehicle. Trooper Connelly asked Brauer if he had consumed any alcohol, and Brauer replied, "`[A] couple.'" Trooper Connelly then asked Brauer to step back to the patrol car "so [he] could ... isolate the odor" of alcohol.
Brauer sat in the passenger seat of Trooper Connelly's patrol car, and Trooper Connelly detected an odor of alcohol on Brauer's breath. Trooper Connelly observed that Brauer's eyes were bloodshot and watery. Trooper Connelly asked Brauer again if he had consumed alcohol, and Brauer replied that he had consumed "`four beers.'" Trooper Connelly administered a number of field sobriety tests, during which Brauer displayed signs of impairment. Trooper Connelly then administered a preliminary breath test, the result of which was "above ... the legal limit."
Based on his observations and experience, Trooper Connelly believed that Brauer was under the influence of alcohol. As a result, Trooper Connelly placed Brauer under arrest. Trooper Connelly transported Brauer to a hospital where his blood was drawn for a blood alcohol concentration test.
On November 9, 2004, the State filed a complaint in county court charging Brauer with DUI or with operating a motor vehicle when his blood alcohol content was .08 grams of alcohol or more per 100 milliliters of blood, pursuant to Neb.Rev.Stat. § 60-6,196 (Reissue 2004). The State alleged that this was a second offense. On November 12, Brauer entered a plea of not guilty.
On February 23, 2005, Brauer filed a motion in limine to exclude from trial the result of the preliminary breath test. At trial, the county court ruled that the preliminary breath test result was admissible solely for the purpose of determining whether Trooper Connelly had probable cause to arrest Brauer.
On March 23, 2005, Brauer filed a motion to suppress the statements he made to Trooper Connelly indicating that he had consumed four beers prior to driving. On May 6, the county court entered an order overruling the motion to suppress.
On November 2, 2005, Brauer filed a motion in limine to exclude from trial the result of the blood test. Brauer argued at the hearing on the motion that the sample was not properly refrigerated after testing to allow him to independently test it. On January 18, 2006, the county court entered an order overruling this motion in limine.
On May 26, 2006, a bench trial was held. On May 31, the county court entered an order finding Brauer guilty. The county court's order specifically held that Brauer was guilty of operating a motor vehicle "while under the influence of alcoholic liquor or while he had a concentration of eight-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his blood." (Emphasis supplied.) On August 31, the county court entered an order sentencing Brauer.
On September 14, 2006, Brauer filed a notice of appeal to the district court. On February 5, 2007, the district court entered an order reversing in part and affirming in part. The district court held that the county court erred in admitting the result of the blood test and, accordingly, in finding Brauer guilty of operating a motor vehicle while having an impermissible blood alcohol content. However, the district court held that there was sufficient evidence to sustain Brauer's conviction on the basis of Brauer's being under the influence of alcohol.
On February 16, 2007, Brauer filed a motion for reconsideration and rehearing, asserting that the county court's judgment had been ambiguous. On March 6, the district court pronounced a ruling on the motion, but did not enter a written, signed, and file-stamped order. Also on March 6, Brauer filed his notice of appeal. On April 9, the district court entered a written, signed, and file-stamped order overruling the motion for reconsideration and rehearing. Although the motion for reconsideration and rehearing was not a proper motion to be filed in this case where the district court was sitting as an intermediate court of appeals, see Goodman v. City of Omaha, 274 Neb. 539, 742 N.W.2d 26 (2007), Brauer's appeal was timely because it was filed within 30 days of entry of the district court's final order on February 5.
Brauer has assigned three errors on appeal: (1) The district court erred in denying Brauer's motion for reconsideration and rehearing, in which Brauer asserted that the county court had entered an ambiguous judgment by finding Brauer guilty of DUI or operating a motor vehicle with an impermissible blood alcohol concentration; (2) the district court erred in affirming the county court's orders denying Brauer's motions in limine and for suppression of statements; and (3) the district court erred in affirming Brauer's conviction.
First, Brauer argues that the county court's use of the word "or" in the judgment convicting Brauer rendered the verdict ambiguous because it is not clear whether the county court intended to find Brauer guilty of (1) DUI or (2) driving while having an impermissible concentration of alcohol in his blood. We conclude, based on the entire record, that Brauer was charged and tried on alternate theories, the evidence received by the county court supported a conviction on both theories, and the county court's order, despite its use of the word "or," was a finding of guilt on both theories.
Resolution of this issue requires us to ascertain the meaning of the county court's judgment. In other contexts, it has been recognized that the meaning of a judgment is determined, as a matter of law, by its contents. Davis v. Crete Carrier Corp., 15 Neb.App. 241, 725 N.W.2d 562 (2006); In re Interest of Teela H., 3 Neb. App. 604, 529 N.W.2d 134 (1995). Unless the language used in a judgment is ambiguous, "`the effect of the decree must be declared in the light of the literal meaning of the language used.'" In re Interest of Teela H., 3 Neb.App. at 609, 529 N.W.2d at 138, quoting Bokelman v. Bokelman, 202 Neb. 17, 272 N.W.2d 916 (1979).
See Label Concepts v. Westendorf Plastics, 247 Neb. 560, 528 N.W.2d 335 (1995). If the language of a judgment is ambiguous, there is room for construction. Id.; Davis v. Crete Carrier Corp., supra. A judgment is ambiguous if a word, phrase, or provision has at least two reasonable but conflicting meanings. Davis v. Crete Carrier Corp., supra. In ascertaining the meaning of an ambiguous judgment, resort may be had to the entire record. Id.
The above propositions are in many ways similar to the existing framework that guides our resolution of issues where a court sentencing a criminal defendant has pronounced an ambiguous sentence. In that context, it has been held that if it is unclear what the trial court intended in imposing a sentence because of a discrepancy between the oral pronouncement of sentence and the written judgment imposing sentence, that ambiguity can be resolved by relying on the oral pronouncement of sentence. See State v. Temple, 230 Neb. 624, 432 N.W.2d 818 (1988). On the other hand, if an oral pronouncement of sentence is invalid but the written judgment imposing sentence is valid, the written judgment is looked to and considered controlling. See State v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995). We have also held that where there is an ambiguity in the judgment indicating that a finding of guilt was based on a plea of guilty where the record demonstrates that there was a trial and the finding of guilt was based on the evidence adduced thereon, we look to the record and presume that a plea of not guilty was entered prior to or at trial. See State v. Erb, 6 Neb.App. 672, 576 N.W.2d 839 (1998).
In the present case, Brauer was charged in county court by a complaint that alleged Brauer was guilty of operating a motor vehicle "while under the influence of alcoholic liquor ... or while he had" an impermissible concentration of alcohol in his blood. (Emphasis supplied.) The language of the complaint is based on the language of § 60-6,196(1), which provides three separate grounds for finding that a defendant is guilty of DUI. A review of the record demonstrates that...
To continue reading
Request your trial
-
State v. Prue, No. 21, September Term, 2009 (Md. App. 6/8/2010)
...facts.5 Furthermore, neither of the two cases from other jurisdictions, relied on by Judge Harrell, supports his view. State v. Brauer, 16 Neb. App. 257, 743 N.W.2d 655 (2007), did not involve the absence of a verdict on a count or anything remotely similar to such absence.6 The other out-o......
-
State Of Md. v. Prue
...facts.5 Furthermore, neither of the two cases from other jurisdictions, relied on by Judge Harrell, supports his view. State v. Brauer, 16 Neb.App. 257, 743 N.W.2d 655 (2007), did not involve the absence of a verdict on a count or anything remotely similar to such absence.6 The other out-of......
-
State v. Franklin
...... of whether sentences were imposed consecutively or. concurrently was invalid but validity was cured by. court's written journal notation correctly setting forth. consecutive sentences as required by relevant statute);. State v. Brauer , 16 Neb.App. 257, 743 N.W.2d 655. (2007) (if oral pronouncement of sentence invalid but written. judgment imposing sentence valid, written judgment considered. controlling). . . However,. in this case, the confusion created by the oral. ......
-
State v. Franklin
...... of whether sentences were imposed consecutively or. concurrently was invalid but validity was cured by. court's written journal notation correctly setting forth. consecutive sentences as required by relevant statute);. State v. Brauer , 16 Neb.App. 257, 743 N.W.2d 655. (2007) (if oral pronouncement of sentence invalid but written. judgment imposing sentence valid, written judgment considered. controlling). . . However,. in this case, the confusion created by the oral. ......