State v. Emrich

557 N.W.2d 674, 251 Neb. 540, 1997 Neb. LEXIS 24
CourtNebraska Supreme Court
DecidedJanuary 17, 1997
DocketS-96-024
StatusPublished
Cited by17 cases

This text of 557 N.W.2d 674 (State v. Emrich) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Emrich, 557 N.W.2d 674, 251 Neb. 540, 1997 Neb. LEXIS 24 (Neb. 1997).

Opinions

Fahrnbruch, J.

Robert R. Emrich appeals his conviction for operating or being in the actual physical control of a motor vehicle upon the public streets and highways within Red Willow County while he had a concentration of .10 of 1 gram or more by weight of alcohol per 100 milliliters of his blood.

Following a bench trial conviction in the Red Willow County Court, Emrich was placed on probation for 18 months. Among the provisions of his probation, Emrich was ordered to pay a $200 fine and ordered not to drive a motor vehicle for any purpose for 60 days.

Emrich appealed his conviction and sentence to the district court for Red Willow County, but failed to comply with Neb. Ct. R. of Cty. Cts. 52(I)(G) (rev. 1996), which reads as follows:

Within 10 days of the filing of the bill of exceptions in the district court, the appellant shall file with the district court a statement of errors, which shall consist of a separate, concise statement of each error a party contends was made by the trial court. . . . Consideration of the case will be limited to errors assigned and discussed.

The rule further provides that the district court may, at its option, notice a plain error not assigned.

The district court reviewed Emrich’s case for plain error and upheld the county court’s conviction and sentence of Emrich. Thereafter, Emrich filed an appeal in the Nebraska Court-of Appeals. This court authorized that this appeal be transferred to its docket.

We reverse the decision of the district court for Red Willow County and remand the cause to the district court with direction to remand the matter to the county court for a new trial.

[542]*542ASSIGNMENT OF ERROR

In this court, Emrich submits only one assignment of error: The district court erred in affirming the county court’s decision finding that the administrative license revocation postarrest advisement (advisory form) read to Emrich was adequate.

STANDARD OF REVIEW

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. Christner, post p. 549, 557 N.W.2d 707 (1997); 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. Christner, supra; State v. Lujano, ante p. 256, 557 N.W.2d 217 (1996); 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. Christner, supra; 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 [543]*543must be dismissed. State v. Christner, supra; 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).

FACTS

At approximately 1:30 a.m. on April 8, 1995, McCook police officer Larry Kinne stopped a pickup truck containing three people for investigation of “suspicious behavior.” The truck was being driven by Emrich, and it contained two female passengers. The vehicle had been parked close to the front door of a closed, local law office when Kinne passed by it. At that time, Kinne observed a male in the driver’s seat of the truck and another person kneeling or squatting down by the front door of the law office. A female who was standing by a door of the truck was behaving nervously, according to Kinne.

Kinne circled the block in his police cruiser and had radio contact with his superior. Kinne testified that as he approached the site of the law office, the people he had previously observed near the law office got into the truck. The truck backed out from where it had been parked and then proceeded down the street. At that time, Kinne turned around in the law office parking lot, activated his cruiser’s emergency lights, and stopped the truck, which Emrich was driving.

When Kinne made personal contact with the occupants of the truck, he detected a fairly strong odor of alcohol coming from inside the truck. When he talked to the driver, who he later determined was Emrich, Kinne noticed that Emrich’s eyes were bloodshot and that his speech was slurred and “thick-tongued.”

While Kinne questioned the truck’s occupants about what they were doing at the law office site, Emrich admitted he had been drinking. In response to Kinne’s request, Emrich exited the truck he had been driving. Kinne noted that when Emrich got out of his truck he hung onto its door to support himself, he swayed from side to side in a somewhat circular motion, and he wavered to the side as he was walking. Kinne then asked Emrich to perform some field sobriety tests.

In all, Kinne had Emrich perform six sobriety tests. For the first test, Emrich was to recite the alphabet, which he did correctly, but his speech was slurred. On the second test, a finger [544]*544dexterity test, Emrich did not touch the tip of his finger to the tip of his thumb as directed. The thumb touched more to the top of the knuckle as opposed to the tip of the fingeri During the third test, a orie-leg stand, Emrich swayed from side to side and bounced on one foot, contrary to the instructions given him. He also failed to follow other instructions on how to perform the test.

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Cite This Page — Counsel Stack

Bluebook (online)
557 N.W.2d 674, 251 Neb. 540, 1997 Neb. LEXIS 24, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-emrich-neb-1997.