State v. Montoya
| Decision Date | 09 March 2021 |
| Docket Number | No. A-20-029.,A-20-029. |
| Citation | 957 N.W.2d 190,29 Neb.App. 563 |
| Parties | STATE of Nebraska, appellee, v. Lorenzo R. MONTOYA, appellant. |
| Court | Nebraska Court of Appeals |
Joseph D. Nigro, Lancaster County Public Defender, and Matthew Meyerle, for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis, for appellee.
Lorenzo R. Montoya appeals his jury conviction of refusal to submit to a chemical test with two prior convictions, a Class IIIA felony, and the conviction by the district court of refusal to submit to a preliminary breath test (PBT), a Class V misdemeanor. For the reasons stated herein, we affirm.
In August 2018, two Lancaster County deputy sheriffs, Daniel Sarnes and Samuel Bachman, received a dispatch around 2:37 a.m. regarding a male slumped over the steering wheel of a vehicle. Deputy Sarnes was the first law enforcement officer at the scene and was informed by medical personnel that they believed the driver, identified as Montoya, was intoxicated. Deputy Sarnes, who was concerned Montoya was not fit to drive, initiated contact with Montoya, who was still in his vehicle. Deputy Sarnes asked Montoya for his driver's license, his vehicle registration, and his proof of insurance documents; Montoya did not have his driver's license in his possession and had difficulty retrieving his other documents. A short time later, Montoya refused Deputy Bachman's request that Montoya take a PBT. Montoya was arrested for driving under the influence of alcohol and was later charged with count I, refusal to submit to a chemical test with two prior convictions; count II, third-offense driving under the influence; and count III, refusal to submit to a PBT.
Prior to trial, Montoya filed a motion to suppress evidence related to the initial stop of his vehicle and the evidence seized as a result of the stop. The aforementioned facts were adduced at this hearing along with testimony from Deputies Sarnes and Bachman.
Deputy Sarnes testified that the nature of the dispatch call concerned a vehicle parked on the road with a male slumped over the steering wheel, with no indication of his consciousness level. When Deputy Sarnes arrived at the scene, medical personnel, who interacted with Montoya, informed Deputy Sarnes that they believed Montoya was intoxicated. Because Deputy Sarnes was concerned that Montoya was unable to drive, he approached Montoya and asked for his documents, which Montoya produced, after some difficulty, except for his driver's license. Deputy Sarnes observed that Montoya's vehicle was parked on the road within 2 feet of the grassy edge of the gravel road.
Deputy Bachman recalled that around 2:37 a.m., a dispatch call went out, and that the nature of the call was that a man was slumped over the steering wheel of the vehicle. When Deputy Bachman arrived on the scene at approximately 2:52 a.m., he saw Deputy Sarnes interacting with Montoya, so Deputy Bachman approached the vehicle from the passenger side. He observed one unopened "bottle of Fireball ... the size of a shooter" in the center console of the vehicle. Deputy Bachman also noticed that Montoya had bloodshot, watery eyes, and he smelled alcohol emanating from Montoya. After making these observations, Deputy Bachman asked Montoya to complete the horizontal gaze nystagmus test, the nine-step walk-and-turn test, and the one-legged stand test. Deputy Bachman testified that Montoya exhibited a level of impairment on all the tests, which suggested he was under the influence of alcohol. Based on Montoya's field sobriety test results, Deputy Bachman requested that Montoya take a PBT, but Montoya refused. Deputy Bachman testified that he believed Montoya was unable to operate a motor vehicle because he was under the influence of alcohol as demonstrated by his appearance and field sobriety test results. Deputy Bachman also testified Montoya's vehicle was stopped on the road but was not pulled off to the side of the road.
After the hearing, the court concluded that notwithstanding Montoya's argument that the deputies did not have reasonable cause or articulable suspicion to stop or detain him, they did have a duty and a right to investigate someone stopped on the roadside in a manner similar to Montoya and that after contacting Montoya, their determination he had been drinking led to their investigation of him. In furtherance of this finding, the district court noted it had watched the video showing the arrest of Montoya by the deputies and noted the location where Montoya's vehicle was parked on the road. The court ultimately denied Montoya's motion to suppress in its entirety.
Prior to trial, Montoya filed motions in limine to limit the testimony of Deputies Sarnes and Bachman regarding the content of dispatch's call about Montoya's being slumped over his steering wheel and portions of the video showing law enforcement's discussion thereof with Montoya. Montoya argued this evidence should be limited because neither deputy had personal knowledge that Montoya was slumped over his steering wheel and these statements constituted hearsay. The district court denied the motions, explaining the dispatch call provided information which the State could use to build its case.
Montoya filed a demand for a jury trial on count III, refusal to submit to a PBT, which motion was denied by the district court. The court explained that because there is no possibility of a jail sentence on count III, the count should be treated like an infraction, and that Montoya was not entitled to a jury trial on that count.
In October 2019, a jury trial was held regarding count I, refusal to submit to a chemical test with two prior convictions, and count II, third-offense driving under the influence. Testimony was elicited from Deputies Sarnes and Bachman.
Deputy Sarnes’ testimony was consistent with his testimony provided during the suppression hearing and set forth above. He further explained that Montoya wore wristbands, the kind commonly given out to bar patrons who are at least 21 years old; that Montoya told law enforcement he left Lincoln, Nebraska, to return to his home in Crete, Nebraska, and decided to take the gravel road to "see the surroundings"; and that Montoya rejected the PBT by saying no and waving his hand at the PBT device. The State also offered the video of the stop of Montoya's vehicle, which was received by the district court over Montoya's objection in the form of a renewal of his motion in limine.
Deputy Bachman also testified in a manner consistent with his testimony during the suppression hearing. When Deputy Bachman testified regarding the dispatch call, Montoya interposed hearsay and confrontation objections, thereby renewing his motion in limine, which the district court ultimately overruled. Deputy Bachman testified regarding the events leading to Montoya's arrest and explained that after Montoya refused the PBT, law enforcement arrested him on suspicion of driving under the influence.
Deputy Bachman explained that following Montoya's arrest, he asked Montoya to submit to a "DataMaster" breath test and explained that refusing this test would constitute a separate charge. Subsequent to this explanation, Montoya refused to submit to a breath test.
The jury found Montoya guilty of count I, refusal to submit to a chemical test, but not guilty of count II, driving under the influence. The court found Montoya guilty of count III, refusal to submit to a PBT. At an enhancement hearing, the court determined count I was Montoya's third offense and sentenced Montoya to 30 months’ imprisonment followed by 12 months of postrelease supervision and revoked Montoya's operator's license for 15 years. The court ordered Montoya to pay a $100 fine for his conviction on count III.
Montoya's assignments of error, consolidated and restated, are that (1) the district court erred in denying his motion to suppress, (2) the district court erred in denying his demand for a jury trial on the misdemeanor charge, (3) the district court erred in denying his motion in limine and permitting the testimony at trial, (4) the evidence was insufficient to support his convictions, and (5) the sentence imposed on count I was excessive.
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, an 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 an appellate court reviews independently of the trial court's determination. State v. Shiffermiller , 302 Neb. 245, 922 N.W.2d 763 (2019).
When a motion to suppress is denied pretrial and again during trial on renewed objection, an appellate court considers all the evidence, both from the trial and from the hearings on the motion to suppress. Id.
The ultimate determinations of reasonable suspicion to conduct an investigatory stop and probable cause to perform a warrantless search are reviewed de novo, and findings of fact are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. Id.
In reviewing a criminal conviction for 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. State v. Smith , 302 Neb. 154, 922 N.W.2d 444 (2019). 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...
To continue reading
Request your trial
-
State v. Meyer
... ... Before ... addressing Meyer's claims, we note that the district ... court found that the community caretaking exception applied ... justifying the search of Meyer's vehicle. In State v ... Montoya , 29 Neb.App. 563, 571, 957 N.W.2d 190, 198 ... (2021), this court explained: ... An exception to the Fourth Amendment's warrant ... requirement is the community caretaking exception. State ... v. Shiffermiller , [302 Neb. 245, 922 N.W.2d 763 (2019)] ... The ... ...
-
State v. Smith
... ... probation or incarceration, and an appellate court will ... uphold the court's decision denying probation absent an ... abuse of discretion. State v. Wills , 285 Neb. 260, ... 826 N.W.2d 581 (2013); State v. Montoya , 29 Neb.App ... 563, 957 N.W.2d 190 (2021) ... Whether ... a sentence constitutes cruel and unusual punishment in ... violation of the Eighth Amendment presents a question of law, ... which an appellate court resolves independently of the lower ... ...
-
State v. Petties
... ... investigatory stop and probable cause to perform a ... warrantless search are reviewed de novo, and findings of fact ... are reviewed for clear error, giving due weight to the ... inferences drawn from those facts by the trial judge ... State v. Montoya , 29 Neb.App. 563, 957 N.W.2d 190 ... (2021) ... When a ... motion to suppress is denied pretrial and again during trial ... on renewed objection, the appellate court considers all ... evidence, both from trial and from the hearing on motion to ... ...
-
State v. Dicini
... ... trial court whether to impose probation or incarceration, and ... an appellate court will uphold the court's decision ... denying probation absent an abuse of discretion. State v ... Wills, 285 Neb. 260, 826 N.W.2d 581 (2013); State v ... Montoya, 29 Neb.App. 563, 957 N.W.2d 190 (2021) ... Whether ... a claim of ineffective assistance of trial counsel can be ... determined on direct appeal presents a question of law, which ... turns upon the sufficiency of the record to address the claim ... ...