State v. CoxState v. Cox
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Calvin F. Cox was originally charged in Box Butte County Court with operating a motor vehicle while under the influence of an alcoholic liquor, in violation of
PROCEDURAL FACTS
The information was filed in the Box Butte County District Court on July 30, 1993, following the sustaining of Cox’s motion to suppress by the Box Butte County Court on July 27, 1993. The county judge’s order suppressed all evidence obtained as a result of the “stop and seizure” of Cox, most notable
During trial, Cox objected to the admission of the blood test results. He also moved for a directed verdict at the close of the State’s case. Both the objection to evidence and the motion for directed verdict were grounded on Cox’s contention that certain provisions of
FACTS
On May 7, 1993, at approximately 1:05 a.m., Officer Eric Smithgall, a police officer in Alliance, Nebraska, observed Cox’s vehicle back out of a parking space and proceed southbound on Box Butte Avenue. Slightly farther south on that road, there was a pickup truck stopped in the southbound lane. Cox claimed that as he approached the pickup, the driver motioned for him to drive around the truck. Cox passed the pickup by driving his car left of the centerline and then returned to the proper lane and continued southbound. Smithgall testified that as Cox passed the truck, he did not appear to slow down or stop, and it was Smithgall’s opinion that Cox failed to use “due caution.” Smithgall similarly passed the truck and continued to follow Cox’s vehicle as it completed a U-turn in the road and headed back north. Smithgall observed that Cox’s car was weaving in the lane and swerving side to side for approximately two blocks. At that time, Smithgall activated his overhead lights and stopped Cox’s vehicle. Smithgall testified that he stopped the vehicle because he believed Cox committed a violation by driving left of the centerline, was not driving with due caution, and was swerving in his lane for two blocks.
When Smithgall approached Cox in his vehicle, he detected an odor of alcohol on Cox’s breath and noticed that Cox’s eyes were watery and his face was “flush.” Smithgall asked Cox if he had been drinking that evening, and Cox responded by admitting that he had had a few beers. At that point, Smithgall had Cox perform several field sobriety tests, including the “Rhomberg Maneuver,” the “finger to Nose/Earlobe Maneuver,” and the walking “heel to toe maneuver,” all of which were performed unsatisfactorily. Smithgall then conducted a preliminary breath test which resulted in a breath alcohol content reading of .174 and thereafter placed Cox under arrest for driving under the influence. Smithgall based his opinion that Cox was driving under the influence of alcohol on his visual observations, the odor of alcohol on Cox’s breath, and the unsatisfactory performance of the field sobriety maneuvers. Additional field sobriety tests were administered and videotaped at the police department. Cox consented to having a blood test taken by a registered nurse at Box Butte General Hospital.
ASSIGNMENTS OF ERROR
Cox’s brief asserts seven assignments of error. We read them as essentially asserting that the district court erred (1) in
receiving evidence of Cox’s body fluid alcohol content when the court was without jurisdiction of said property because there was no order from the county court transferring the property to the jurisdiction of the district court, pursuant to
SCOPE OF REVIEW
In construing a statute, an appellate court must look at the statutory objective to be accomplished, the problem to be remedied, or purpose to be served, and then place on the statute a reasonable construction which best achieves the purpose of the statute, rather than a construction defeating the statutory purpose. State v. Seaman, 237 Neb. 916, 468 N.W.2d 121 (1991).
It is well established that a motion for directed verdict is properly granted only when there is a complete failure of evidence to establish an essential element of the crime charged or evidence is so doubtful in character, lacking in probative value, that a finding of guilt cannot be supported by the evidence. See, e.g., State v. Filkin, 242 Neb. 276, 494 N.W.2d 544 (1993).
In determining the correctness of a trial court’s ruling on a motion to suppress, this court will uphold a trial court’s findings of fact unless those findings are clearly erroneous. State v. Dyer, 245 Neb. 385, 513 N.W.2d 316 (1994); State v. Hicks, 241 Neb. 357, 488 N.W.2d 359 (1992); State v. Thomas, 240 Neb. 545, 483 N.W.2d 527 (1992). In deciding whether the trial court’s findings on a motion to suppress are clearly erroneous, the reviewing court recognizes the trial court as the trier of fact and takes into consideration that the trial court has observed the witnesses testifying regarding the motion. State v. Pope, 239 Neb. 1009, 480 N.W.2d 169 (1992); State v. Melton, 239 Neb. 790, 478 N.W.2d 341 (1992).
ANALYSIS
Cox’s first three assignments of error are based upon
Where motions to suppress and for the return of seized property are made in courts inferior to the district court in cases involving violations of state laws, the county attorney may give notice to such court that the property in question will be further required as evidence, may then dismiss the action in such court and refile the complaint in the district court. In its order of dismissal the court shall order transfer of the property to the jurisdiction of the district court.
(Emphasis supplied.) It is the last sentence of this statute upon which Cox relies to support these assignments of error. His argument, as we understand it, is that there was no showing in the district court that the county court had entered an order transferring “the property” to the jurisdiction of the district court. In this case, the property includes the blood test results. Cox argues that without proof of the order from county court, the district court was “without jurisdiction” over the blood test results, and therefore, the blood test results, over which the court did not have jurisdiction, could not be received into evidence. Brief for appellant at 11. Cox concludes that in the absence of those test results, the State failed to prove its case against him, and moreover, the district court did not have jurisdiction to hear and determine the State’s case.
As a preface to our analysis, we note that the record before us does not contain a county court complaint charging Cox with violation of
Before engaging in a specific discussion of each of Cox’s assignments of error that rely upon
In
State v. Dail,
228 Neb. at 657, 424 N.W.2d at 102, the Supreme Court characterized this statute as permitting the
State to obtain an “interlocutory review of a ruling on a motion to suppress” which has been sustained in an inferior court. In
Dail,
the Supreme Court recognized that there was a specific statutory procedure which allowed for an interlocutory review of decisions of the
district
court sustaining a defendant’s motion to suppress, but that this statute did not apply to a county court’s sustaining of such a motion, and that
Thus, the interlocutory review envisioned by
Regarding the provision in
The Supreme Court has stated that when a court must interpret a statute that is in a series or collection all relating to a certain subject matter, these statutory components are in pari materia and may be considered conjunctively in determining the Legislature’s intent. State v. Garza, 242 Neb. 573, 496 N.W.2d 448 (1993); Gatewood v. Powell, 1 Neb. App. 749, 511 N.W.2d 159 (1993). A clause, paragraph, or provision in a section should be construed in connection with all other clauses, paragraphs, and provisions in the same and other sections of the statute connected therewith or relating thereto. Enyeart v. City of Lincoln, 136 Neb. 146, 285 N.W. 314 (1939). Finally, it is the recognized rule of statutory construction that where the same word is used repeatedly in the same act, unless the context requires otherwise, the word is to have the same meaning. Knoell v. Huff, 224 Neb. 90, 395 N.W.2d 749 (1986).
We believe that the obvious purpose of those provisions in the foregoing statutes which define which court has “jurisdiction” over the seized property is to assure safekeeping and custody of the property, as well as identifying which court has the authority, should the issue arise, to dispose of the property or funds and to determine rights therein, including questions respecting the title, possession, control, and disposition thereof. Such provisions also outline a mechanism enabling the physical transfer of seized property from one court to the other (when such a transfer is necessary) and assure accountability for the property.
We believe that such a construction harmonizes this provision of
The Nebraska Supreme Court has not ruled on the issues presented by Cox. He cites State v. Dail, 228 Neb. 653, 424 N.W.2d 99 (1988), in general support of his arguments, but Dail does not directly address these issues. Guided by general principles of law announced by the Supreme Court, we reach the conclusion that Cox’s assignments of error, although novel, are without merit.
“Jurisdictional Grounds.”
As to Cox’s assignment of error that the district court should haVe dismissed this case on jurisdictional grounds, Cox’s argument is that the issuing of the order by the county court was a necessary predicate to the district court having authority or jurisdiction to hear the case. Cox cites us to no authority for that proposition other than
State
v.
Dail, supra. Dail
does not hold, or even suggest, that such an order from county court is a necessity to a district court’s exercise of jurisdiction over a criminal charge once filed in county court and subsequently dismissed and refiled in district court. Indeed, a district court has original jurisdiction in all matters civil and criminal except where otherwise provided.
We do not construe
Admissibility of Blood Test Results.
Cox also directly presents the issue of whether the district court erred in admitting evidence of Cox’s blood test results without proof that the Box Butte County Court had entered an order to transfer “the property” to the jurisdiction of the district court. That evidence came in the form of exhibit 3 and consisted of a lab report from the Nebraska Department of Health laboratories containing the results of a test performed on a sample of Cox’s blood, with the results showing body fluid alcohol content at .211 grams per 100 milliliters. Obviously, the State had exhibit 3 at the district court trial, as it was physically offered into evidence.
Cox argues no grounds for the inadmissibility of this exhibit, other than the absence of the county court order. Implicit in this position is that there was insufficient foundation laid for its admission without proof that the district court had “jurisdiction” over the blood test results, i.e., “the property” as that phrase appears in
Cox apparently relies on the plain language of
Consistent with our construction of
Directed Verdict and Sufficiency of Evidence.
Cox contends that the district judge erred in overruling his motion for directed verdict made at the close of the State’s case. If we understand Cox’s argument, it is that the blood test results were inadmissible and, therefore, that the State had failed on its proof, or that the order of the county court transferring the results was an essential element of the State’s case, and failure to prove the order required a directed verdict.
A motion for directed verdict is properly sustained only when there is a complete failure to establish an essential element of the crime charged or the evidence is so doubtful in character, lacking in probative value, that a finding of guilt cannot be supported.by the evidence. State v. Filkin, 242 Neb. 276, 494 N.W.2d 544 (1993). If a defendant in a criminal prosecution, upon the overruling of a motion for directed verdict, proceeds with the trial and introduces evidence, he waives the appellate right to challenge, the correctness of the trial court’s overruling the motion, but may challenge the sufficiency of the evidence for the defendant’s conviction. State v. Dawson, 240 Neb. 89, 480 N.W.2d 700 (1992); State v. Gray, 239 Neb. 1024, 479 N.W.2d 796 (1992). Cox proceeded with the trial and offered evidence after the district judge overruled his motion. In any event, the blood test results were admissible, as we have already determined. Moreover, the order of the county court was not an essential element of the crime charged of driving under the influence of alcohol. Cox does not otherwise challenge the sufficiency of the evidence for his conviction. This assignment of error is, therefore, without merit.
Motion to Suppress.
Cox also alleges that the district court erred in overruling his motion to suppress because the arresting officer observed no violations of law prior to stopping his vehicle and was not able to articulate sufficient facts based on the totality of the circumstances to justify the investigatory stop. In determining the correctness of a trial court’s ruling on a motion to suppress, this court will uphold a trial court’s findings of fact unless those findings are clearly erroneous.
Cox asserts that the only reason Smithgall stopped his vehicle was because he drove left of the centerline while passing another vehicle stopped in the road. This action in and of itself may not be unlawful; however, the record reflects that Smithgall based the actual stopping of Cox’s vehicle upon other evidence as well. Smithgall testified that at the time of the stop, he believed the action taken by Cox in driving left of the centerline to get around the truck parked in the road was illegal, but that he also felt the vehicle was not being driven cautiously, since it failed to stop or slow down while passing the truck. As he continued to follow the vehicle, but prior to the stop, Smithgall observed the vehicle weaving in its lane and
The Supreme Court has previously stated that “ ‘ “[a] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” ’ ” State v. Dail, 228 Neb. 653, 658, 424 N.W.2d 99, 103 (1988). Accord State v. Thomte, 226 Neb. 659, 413 N.W.2d 916 (1987). An investigatory stop must be justified by an objective manifestation, based upon the totality of the circumstances, that the person stopped has been, is, or is about to be engaged in criminal activity. State v. Bridge, 234 Neb. 781, 452 N.W.2d 542 (1990); State v. Dail, supra; State v. Ege, 227 Neb. 824, 420 N.W.2d 305 (1988); State v. Thomte, supra. The purpose of an investigative stop is to clarify ambiguous situations. Even if it was equally probable that the vehicle or its occupants were innocent of any wrongdoing, the police must be permitted to act before their reasonable belief is verified by escape or fruition of the harm it was their duty to prevent. State v. Bridge, supra.
In this case, the evidence demonstrates that Smithgall had a reasonable suspicion for stopping the vehicle. Smithgall testified that it was his opinion that the car was not being driven cautiously, and he also observed the vehicle weaving and swerving from side to side in its lane. In State v. Thomte, 226 Neb. at 663, 413 N.W.2d at 919, the Supreme Court stated that “a vehicle weaving in its own lane of traffic provides an articulable basis or reasonable suspicion for stopping a vehicle for investigation regarding the driver’s condition in operating the weaving vehicle.” See, also, State v. Dail, supra. The district judge was the trier of fact in connection with the motion to suppress. His ruling was not clearly erroneous. See, e.g., State v. Pope, 239 Neb. 1009, 480 N.W.2d 169 (1992). This assignment of error is without merit.
CONCLUSION
The purpose of the provision of
Affirmed.