State v. Daniels

• Decision Date: 12 July 1985
• Docket Number: No. 84-922,84-922
• Parties: STATE of Nebraska, Appellee, v. Desmond D. DANIELS, Appellant.
• Court: Nebraska Supreme Court

Page 179

370 N.W.2d 179

220 Neb. 480

STATE of Nebraska, Appellee, v. Desmond D. DANIELS, Appellant.

No. 84-922.

Supreme Court of Nebraska.

July 12, 1985.

Syllabus by the Court

1. Convictions: Appeal and Error. In the review of the evidence in a criminal case, this court does not weigh the evidence or pass upon the credibility of witnesses, and we will sustain the verdict if, in taking the view of the evidence most favorable to the State, there is sufficient evidence to support it.

2. Police Officers and Sheriffs: Investigative Stops. Police officers must have a particularized and objective basis for suspecting the person stopped of criminal activity.

3. Trial: Evidence: Waiver. Failure to object to an offer of evidence waives the objection.

4. Drunk Driving: Witnesses: Testimony. A nonexpert witness may testify from his observation as to whether or not another is intoxicated, and the weight and sufficiency is for a jury to decide.

5. Police Officers and Sheriffs: Arrests. It is an affirmative defense to prosecution under Neb.Rev.Stat. § 28-904 (Cum.Supp.1984) if the peace officer involved was out of uniform and did not identify himself as a peace officer by showing his credentials to the person whose arrest is attempted.

Curtis A. Sikyta, Ord, for appellant.

Robert M. Spire, Atty. Gen., and Jill Gradwohl, for appellee.

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

WHITE, Justice.

This is an appeal from the order of the district court affirming the convictions and sentences of appellant for driving while intoxicated, third offense, and resisting arrest, in the county court for Loup County.

Taking a view of the facts most favorable to the State, the cause arose when the village marshal of Taylor observed the appellant's vehicle fail to stop at a stop sign, and negotiate a "wide angle turn." The marshal, who was not in uniform, followed the appellant's vehicle in a pickup truck that was equipped with a red light. The marshal followed appellant's car for approximately 1 1/2 miles to appellant's home west of Taylor, where appellant pulled into a farmyard of the home he occupied. During the time the marshal followed appellant's car, he observed the car drive "to the right, enough to take up the dirt along the shoulder of the road and then curved left to the center and to the right again."

The marshal approached appellant's car as appellant was emerging. The marshal noticed an odor of alcohol about the appellant's person, saw empty beer cans on the driver's side of the vehicle, and observed the appellant's eyes to be bloodshot. Appellant was informed the marshal was a police officer, shown the marshal's badge, and asked to walk to an area near the marshal's car and perform certain physical acts presumably indicative of sobriety or the lack thereof. During the walk, appellant appeared to be "unsure" and "kind of staggery, weavy." The "finger to nose" test was not performed to the "satisfaction" of the marshal, and appellant staggered and stepped to the side in the "heel to toe" test. Finally, appellant was unable to complete recitation of the alphabet, though he successfully recited the letters from A to L and O.

Sometime during the interview, the appellant determined to discontinue the conversation with the marshal and started walking toward his house. The marshal reached out to grab him, and appellant swung at him. A scuffle ensued, and appellant was subdued and handcuffed with the assistance of the marshal's brother-in-law. Appellant was then taken into custody and transferred to the jail in Broken Bow, Nebraska.

Appellant assigns as error (1) the court's finding that the marshal had probable cause to stop the appellant's car; (2) the court's failure to find that the evidence was insufficient to establish the offenses of driving while intoxicated and resisting arrest; (3) the court's allowing the opinion evidence of the State's witness to be admitted relative to the intoxicated state of appellant; and (4) the court's failure to find that the resistance of appellant was justified.

We affirm. We will discuss the alleged errors together. In the review of the evidence in a criminal case, this court does not weigh the evidence or pass upon the credibility of witnesses, and we will sustain the verdict if, in taking the view of the evidence most favorable to the State, there is sufficient evidence to support it. State v. Lichti, 219 Neb. 894, 367 N.W.2d 138 (1985); State v. Green, 217...