State v. Buescher, S-91-285

• Decision Date: 12 June 1992
• Docket Number: No. S-91-285,S-91-285
• Citation: 485 N.W.2d 192,240 Neb. 908
• Court: Nebraska Supreme Court
• Parties: STATE of Nebraska, Appellee, v. Dale W. BUESCHER, Appellant.

Page 192

485 N.W.2d 192

240 Neb. 908

STATE of Nebraska, Appellee, v. Dale W. BUESCHER, Appellant.

No. S-91-285.

Supreme Court of Nebraska.

June 12, 1992.

Syllabus by the Court

1. Convictions: Sentences: Ordinances: Appeal and Error. An analysis of assignments of error claiming that the evidence is insufficient to support a conviction under a municipal ordinance and that the sentence is excessive requires an examination of the specific ordinance involved.

2. Ordinances: Judicial Notice: Appeal and Error. An appellate court will not take judicial notice of an ordinance not in the record but assumes that a valid ordinance creating the offense charged exists, that the evidence sustains the findings of the trial court, and that the sentence is within the limits set by the ordinance.

Dennis R. Keefe, Lancaster County Public Defender, and Kristi Egger-Brown, Lincoln, for appellant.

Norman Langemach, Jr., Lincoln City Prosecutor, for appellee.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

PER CURIAM.

Defendant-appellant, Dale W. Buescher, was charged in the county court with violating various ordinances of the city of Lincoln by operating a motor vehicle while under the influence of alcoholic liquor, by operating a motor vehicle under a suspended license, by driving an improperly registered motor vehicle, and by resisting arrest. Following a bench trial, the trial court dismissed the driving while under the influence and improper registration charges and found Buescher guilty of driving a motor vehicle under a suspended license and of resisting arrest. He was then fined $150 and had his operator's license suspended for a year on the driving conviction, and he was fined $100 and ordered to spend 14 days in jail on the resisting arrest conviction. The district court affirmed, whereupon the appeal to this court ensued. Buescher asserts that the district court erred in failing to find that the county court erred in (1) denying him a jury trial, (2) finding the evidence sufficient to support the charges, and (3) imposing excessive sentences. We affirm.

No useful purpose would be served by detailing the circumstances leading to Buescher's arrest and convictions, for the ordinances under which he was charged are not in the record. We recently, in State v. King, 239 Neb. 853, 479 N.W.2d 125 (1992), reaffirmed that an analysis of assignments of error claiming that the evidence is insufficient to support a conviction under a municipal ordinance and that the sentence is excessive requires an examination of the specific ordinance involved. It is well established that an appellate court will not take judicial notice of an ordinance not in the record but assumes that a valid ordinance creating the offense charged exists, that the evidence sustains the findings of the trial court, and that the sentence is within the limits set by the ordinance. State v. King, supra. See, also, State v. Long, 206 Neb. 446, 293 N.W.2d 391 (1980); State v. Korf, 201 Neb. 64, 266 N.W.2d 86 (1978); State v. Sator, 194 Neb. 120, 230 N.W.2d 224 (1975); Foley v. State, 42 Neb. 233, 60 N.W. 574 (1894).

Without benefit of the ordinances in question, neither can we determine whether the trial court should have granted a jury trial. As noted in Hawkins Constr. Co. v. Director, 240 Neb. 1, 480 N.W.2d 183 (1992), courts are in no better position to declare the rights of the parties under an ordinance not in the record than they would be to declare the rights of parties to a contract not in the record.

What ought to be more than abundantly clear by this time is that a party charged under a municipal ordinance who seriously contemplates an appeal in the event of an adverse result needs to see to it that the trial record properly contains a copy of the ordinance under which the proceedings are conducted. In the absence of such a record, an appeal only wastes time and money--in this instance, as this appeal was taken in forma pauperis, the public's time and money.

AFFIRMED.

CAPORALE, Justice, dissenting.

I remain of the view expressed in my dissent in State v. Lewis, 240 Neb. 642, 483 N.W.2d 742 (1992). Having now twice expressed that view, I shall refrain from future dissent.

BOSLAUGH, J., joins in this dissent.

SHANAHAN, Justice, dissenting.

Constitutional considerations compel comment on the majority's creation of presumptions to dispose of appeals involving violations of municipal ordinances that are omitted from records presented for appellate review.

As reflected in the majority's opinion, in reviewing convictions for violations of ordinances, this court rejects appellate judicial notice of a subject ordinance which has been omitted from evidence in a trial court, and presumes or "assumes that a valid ordinance creating the offense charged exists [and] that the evidence sustains the findings of the trial court...." Therefore, in a prosecution for violation of an ordinance, this court treats existence of the ordinance as an evidential matter outside judicial notice and requires that a convicted defendant make the subject ordinance part of the record presented for appeal. However, in civil litigation, "a party seeking the benefit of [an ordinance must] plead and prove the existence of the ordinance...." Nevels v. State, 205 Neb. 642, 646, 289 N.W.2d 511, 513 (1980). Accord Zybach v. State, 226 Neb. 396, 411 N.W.2d 627 (1987). Thus, the evidential rule differs drastically, depending on whether the action is a prosecution for violation of an ordinance or a civil proceeding that implicates an ordinance as a claim or defense.

As an evidential matter in Buescher's case, the State failed to prove existence of the drunk driving ordinance and, consequently, failed to prove Buescher's violation of the ordinance. One does not have to delve into the depths of metaphysics to conclude that a person cannot violate a nonexistent ordinance. Moreover, criminal defendants, even those charged with traffic offenses, are afforded several constitutional and procedural safeguards, including the due process requirement that every factual element of an offense charged must be proved beyond a reasonable doubt. See, State v. Lomack, 239 Neb. 368, 476 N.W.2d 237 (1991); State v. Harney, 237 Neb. 512, 466 N.W.2d 540 (1991); State v. Jasper, 237 Neb. 754, 467 N.W.2d 855 (1991). See, also, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Since the ordinance under which Buescher was convicted is not established in the record, there is a devastating and destructive deficiency, a fundamental failure of proof, in the State's case against Buescher. As a matter of law, that absence of proof in reference to the drunk driving ordinance prevents a conviction of Buescher, since the State has failed to present any evidence concerning existence of the ordinance or its provisions, proof which is required for a prima facie case against Buescher and, moreover, is required as a basis for finding Buescher's guilt beyond a reasonable doubt.

Courts in several...