State v. Christner
| Decision Date | 17 January 1997 |
| Docket Number | No. S-96-200,S-96-200 |
| Citation | 251 Neb. 549,557 N.W.2d 707 |
| Parties | STATE of Nebraska, Appellee, v. Kelly R. CHRISTNER, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the decision made by the court below.
2. Judgments: Trial: Evidence: Proof: Appeal and Error. In a bench trial of a law action, including a criminal case tried without a jury, erroneous admission of evidence is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's factual findings necessary for the judgment or decision reviewed; therefore, an appellant must show that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through use of erroneously admitted evidence in a case tried without a jury.
3. Convictions: Appeal and Error. In determining whether evidence is sufficient to sustain a conviction in a bench trial, 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. 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. The trial court's findings have the effect of a jury verdict and will not be set aside unless clearly erroneous.
4. Convictions: Evidence: Appeal and Error. On appeal, if it appears the evidence is sufficient to support a conviction, the cause may be remanded to the district court for further proceedings; if the evidence is not sufficient, the cause must be dismissed.
5. Trial: Evidence: Records: Appeal and Error. The erroneous admission of evidence in a bench trial of a law action, including a criminal case tried without a jury, is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's necessary factual findings. A reversal is warranted in such a case if the record shows that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through the use of erroneously admitted evidence.
G. Peter Burger, of Burger & Bennett, P.C., McCook, for appellant.
Don Stenberg, Attorney General, and David T. Bydalek, Lincoln, for appellee.
Kelly R. Christner claims that due to the test result from an improperly obtained sample of his blood, a Red Willow county judge convicted him of operating or being in the actual physical control of a motor vehicle while he had an excessive concentration of alcohol in his body.
Upon Christner's appeal to the district court for Red Willow County, that court affirmed Christner's county court conviction. Christner then appealed to the Nebraska Court of Appeals. We transferred the matter to this court's docket pursuant to our authority to regulate the dockets of the two appellate courts.
We reverse Christner's conviction and direct that the charge against him be dismissed.
The sole charge against Christner, for which he was convicted in the Red Willow County Court, was that Christner, while operating a motor vehicle upon the public streets and highways within Red Willow County, violated that portion of Neb.Rev.Stat. § 60-6,196 (Reissue 1993) which provides, in pertinent part: "It shall be unlawful for any person to operate or be in the actual physical control of any motor vehicle: ... (b) When such person has a concentration of ten-hundredths of one gram or more by weight of alcohol per one hundred milliliters of his or her blood...."
Christner entered a not guilty plea to the charge and waived a jury trial. At a bench trial, certain facts contained in the arresting officer's report and certain other facts were received in evidence by stipulation of the parties. It was also stipulated that if certain witnesses were called to testify, they would lay the necessary foundation for the introduction into evidence of exhibit 5, which is a report of the McCook Community Hospital clinical laboratory. The report reflects that shortly after Christner was arrested, a sample of his blood was taken, and that a chemical test of it revealed that Christner had a concentration of .10 of 1 gram or more by weight of alcohol per 100 milliliters of his blood, to-wit: .188. Christner objected to the court's receiving in evidence the test result, because he was not adequately advised of the consequences of his taking or refusing to submit to a blood test. The trial court overruled Christner's objection and admitted into evidence the result of his blood test.
The status of this appeal is such that if Christner's blood test result should not have been received in evidence, then there was insufficient evidence to convict him of the violation with which he was charged. On the other hand, if the trial court properly received into evidence Christner's blood test result, Christner's conviction should be affirmed.
Restated, Christner contends that the trial court erred in (1) receiving into evidence the result of his blood test and (2) finding that the evidence supported a finding that he had .10 of 1 gram or more by weight of alcohol per 100 milliliters of his blood, in violation of § 60-6,196.
Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the decision made by the court below. State v. Lujano, 251 Neb. 256, 557 N.W.2d 217 (1996); State v. Johnson, 250 Neb. 933, 554 N.W.2d 126 (1996); Smith v. State, 248 Neb. 360, 535 N.W.2d 694 (1995).
In a bench trial of a law action, including a criminal case tried without a jury, erroneous admission of evidence is not reversible error if other relevant evidence, admitted without objection or properly admitted over objection, sustains the trial court's factual findings necessary for the judgment or decision reviewed; therefore, an appellant must show that the trial court actually made a factual determination, or otherwise resolved a factual issue or question, through use of erroneously admitted evidence in a case tried without a jury. State v. Lujano, supra; State v. Lomack, 239 Neb. 368, 476 N.W.2d 237 (1991). See, also, State v. Chambers, 241 Neb. 66, 486 N.W.2d 481 (1992).
In determining whether evidence is sufficient to sustain a conviction in a bench trial, 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. 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. The trial court's findings have the effect of a jury verdict and will not be set aside unless clearly erroneous. State v. Johnson, supra; State v. Hand, 244 Neb. 437, 507 N.W.2d 285 (1993).
On appeal, if it appears the evidence is sufficient to support a conviction, the cause may be remanded to the district court for further proceedings; if the evidence is not sufficient, the cause must be dismissed. State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987). See State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
Under his first assignment of error, Christner contends that the administrative license revocation postarrest advisement (advisory form) read to him prior to his agreeing to take a blood test did not adequately advise him of the consequences of submitting to a blood test, as required by Neb.Rev.Stat. § 60-6,197(10) (Reissue 1993) and this court's decision in Smith v. State, 248 Neb. 360, 535 N.W.2d 694 (1995). Specifically, Christner contends that the advisory form did not advise him that the result from his blood test could be used against him in a criminal proceeding. It is undisputed that the advisory form read to Christner prior to his blood test was the same as the advisory form adjudged statutorily inadequate under § 60-6,197(10) in Smith.
In Smith, we addressed the issue of whether an arresting officer, by reading an advisory form, gave a driver-arrestee adequate notice, as required by § 60-6,197(10), of the consequences of failing a chemical test. We held that the advisory form read to the defendant in Smith prior to the administration of his chemical breath test failed to fully inform him of the consequences of submitting to, or submitting to and failing, a chemical test as mandated by § 60-6,197(10). That statute, in relevant part, provides:
Any person who is required to submit ... to a chemical blood, breath, or urine test or tests ... shall be advised of (a) the consequences of refusing to submit to such test or tests and (b) the consequences if he or she submits to such test and the test discloses the presence of a concentration of alcohol in violation of subsection (1) of section 60-6,196.
(Emphasis supplied.)
We held in Smith v. State, 248 Neb. at 365, 535 N.W.2d at 697-98, that "[t]he sensible reading of § 60-6,197(10) indicates that the Legislature intended drivers to be advised of the natural and direct legal consequences...
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