CONNOLLY, J.
Jeffrey McCave was in his car, parked in the driveway of his father's house. While he was listening to music on the car radio, his father told him to turn the volume down and leave. After he refused, his father called the police. The police, after a confrontation, arrested McCave for trespass and driving under the influence of alcohol (DUI). Later, the State additionally charged him with resisting arrest, refusing to submit to a chemical breath test, and possessing an open container of alcohol in a vehicle.
A jury convicted McCave of DUI, refusing to submit, and trespass. It deadlocked on the resisting arrest charge. The county court then convicted him of possessing an open container. It declared a mistrial, however, on the resisting arrest charge. On appeal to the district court, the court affirmed the judgments in all respects.
This appeal presents several interrelated issues:
1. Did the evidence show that McCave had operated or was in actual physical control of his vehicle on a public highway or on private property that is open to public access?
2. Did the evidence show that McCave possessed an open container of alcohol on a public highway or in a public parking area?
3. Does an officer's lack of probable cause for a DUI arrest bar a prosecution for refusing to submit to a chemical test?
4. In the criminal trespass prosecution, was evidence showing that McCave's stepmother had consented to McCave's presence at her house admissible?
Police officers arrested McCave at his father's house in the early morning hours. The arrest stemmed from a family dispute between McCave and his father, John McCave (John). The officers came to the house at John's request after McCave refused to leave the property as John had requested. The officers initially arrested McCave for trespass; afterward, they informed him that he was under arrest for
At the suppression hearing and at trial, McCave argued that the officers lacked probable cause for his arrest. The county court overruled McCave's motion to suppress evidence at both proceedings. At trial, the court sustained the State's hearsay objections to Ashleigh Kudron's testimony and struck her testimony. Kudron was McCave's girlfriend. Her testimony would have shown that McCave's stepmother, Susan McCave (Susan), had consented to McCave's staying at the house. The court overruled McCave's motion for a directed verdict at the close of the State's case.
The jury found McCave guilty of DUI, refusing to submit to a chemical test, and trespass. It failed to reach a verdict on the resisting arrest charge, and the court declared a mistrial. After dismissing the jury, the court found McCave guilty of possessing an open container in a motor vehicle.
For the DUI and refusing to submit convictions, the county court sentenced him to 30 days in jail and 2 years of probation, and to pay a $1,000 fine. The court ordered him not to operate a vehicle as a term of his probation. For the trespassing conviction, the court sentenced him to 10 days in jail. The court fined him $50 for the open container conviction.
McCave assigns, restated and renumbered, that the district court erred in affirming the county court's judgment because the county court improperly (1) overruled his motion to suppress evidence, (2) excluded as hearsay testimony intended to show that he was or believed that he was licensed to remain on the property, (3) overruled his motion for a directed verdict, (4) instructed the jury, and (5) imposed excessive sentences.
In an appeal of a criminal case from the county court, the district court acts as an intermediate court of appeals, and its review is limited to an examination of the record for error or abuse of discretion.
When reviewing a judgment for errors appearing on the record, an appellate court's inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable.
We first address the district court's conclusion that McCave had appealed from
We do not acquire jurisdiction of an appeal unless a party is appealing from a lower tribunal's final order or judgment.
Generally, an order entered during the pendency of a criminal case is final only when no further action is required to completely dispose of the pending case.
The district court relied on two federal appellate decisions to conclude that it had jurisdiction: U.S. v. Abrams
The Second Circuit in Abrams concluded that requiring a defendant to delay an appeal until a court renders judgment for every count would result in one of two
In King, the defendant pleaded guilty to, and the court sentenced him on, 19 counts of a 50-count indictment. The Ninth Circuit concluded that it had jurisdiction over his appeal even though the remaining counts were still pending. The Ninth Circuit concluded that the defendant's guilty pleas to a subset of the charges had created a de facto severance of the case. It concluded that permitting a defendant to begin serving a sentence before obtaining the right to appeal would violate due process. It determined that "the court's interest in ensuring a defendant has the right to appeal a sentence when he begins serving it outweighs the government's concerns about piecemeal appellate review."
In contrast, the minority rule generally depends upon a stay of the execution of sentence. The First Circuit's decision in U.S. v. Leichter
The other leading federal case adopting the minority rule also depended upon a stay of execution. In U.S. v. Kaufmann,
The majority approach is more persuasive and more consistent with Nebraska law. As stated, a conviction is a final judgment for appeal purposes after
Moreover, the majority approach also avoids trial management issues. The potential for delays could pressure the State to dismiss those counts on which the jury has deadlocked.
We conclude that when the trial court has declared a mistrial as to one or more counts in a multicount charging instrument, the better course is to treat those counts as severed—to be resolved in a new proceeding. This rule will permit a defendant to appeal his conviction and sentence rather than waiting until a court enters judgment on every count. The district court did not err in exercising jurisdiction over McCave's appeal. We now turn to the merits of his appeal.
McCave argues that the county court erred in failing to suppress evidence derived from his DUI arrest. He argues that the officers lacked probable cause to believe that he had operated or been in actual physical control of a vehicle while intoxicated. He argues that he was not on property open to public access because he was sitting in a car which was parked on a residential driveway with its motor not running.
The State views it differently. It argues that McCave was in physical control of the vehicle and that the vehicle was not entirely on private property. Relying on State v. Prater,
In reviewing a trial court's ruling on a motion to suppress based on the
Two officers responded to John's complaint. Faz testified at the suppression hearing. He stated John told him that McCave was intoxicated and causing a disturbance and that he wanted the officers to remove him. Faz stated that John said that McCave had been at his house earlier, left, and then returned intoxicated and caused a disturbance. After speaking to John, the officers walked around to the side of the house, where the detached garage and driveway abutted a side street. Faz stated that the vehicle was parked in the driveway, straddling the sidewalk.
Faz recognized McCave from previous complaints and saw him sitting in the driver's seat. The motor was not running, but the keys were in the ignition. Faz saw a beer can in the console. When Faz asked McCave what he was doing, he first responded, "`Nothing,'" but then stated that he was leaving. Faz stated that McCave was about to start the engine, but he never turned the motor on, and he stepped out of the car when asked to do so.
In exiting the car, McCave backed away from the officers, yelling that they had no right to contact him on private property. The officers believed that he was intoxicated and arrested him for trespass. From his conversation with John, Faz did not know how long McCave had been in the vehicle on the driveway. He also did not know the means by which McCave had left the house or whether he was driving. Faz saw Kudron and knew that she was McCave's girlfriend. But he did not speak to her or ask whether she had driven the vehicle.
After arresting McCave for trespass, Faz returned and spoke to John and Susan. John stated that he had been asleep. Susan stated that McCave had returned about a half-hour to an hour before John woke up. Faz did not ask Susan whether she had allowed McCave to be on the property. Later, Faz read McCave the postarrest advisement form for DUI. McCave refused to submit to a chemical breath test.
The county court concluded that the circumstantial evidence was sufficient to show that McCave had been driving. It reasoned that the officers could infer that he had been driving because he had stated that he was leaving when the officers first approached him.
Under Neb.Rev.Stat. § 60-6,196(1) (Reissue 2010), it is unlawful for a person to operate or be in the actual physical control of any motor vehicle while under the influence of alcohol or a drug. Here, the police initially arrested McCave for trespass. But the postarrest chemical test advisement form that Faz later read to McCave informed him that he was also under arrest for DUI.
The Fourth Amendment to the U.S. Constitution and article I, § 7, of the Nebraska Constitution protect individuals against unreasonable searches and seizures by the government.
Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.
Under Neb.Rev.Stat. § 60-6,108(1) (Reissue 2010), Nebraska's DUI statutes do not apply to a person's operation or control of a vehicle on private property that is not open to public access. So we first address whether McCave was in actual physical control of a vehicle on private property with public access when he was sitting in a parked vehicle which was on a residential driveway but overhanging a public sidewalk.
In Prater,
We concluded that whether the apartment building parking lot was open to public access was "primarily a question of fact."
But Prater is not controlling here. When §§ 60-6,108 and 60-6,196 are read consistently, they show that the Legislature intended to prohibit intoxicated persons from operating or being in control of a vehicle even on private property if other motorists might access that property and be endangered by their conduct. But Neb.Rev.Stat. § 60-649 (Reissue 2010) defines a private road or driveway to mean "every way or place in private ownership and used for vehicular travel by the owner and those having express or implied permission from the owner but not by other persons."
So, unlike the question presented in Prater, the public access question here presents a question of statutory interpretation. As a matter of law, we conclude that under § 60-649, a residential driveway is not private property that is open to public access.
Nor do we think that the driveway's characterization as private property without public access changed just because McCave's vehicle overhung the sidewalk. Neb.Rev.Stat. § 60-662 (Reissue 2010) defines a sidewalk as "that portion of a highway between the curb lines, or the lateral lines of a roadway, and the adjacent property lines, intended for use by pedestrians." Because a sidewalk is not intended for use by vehicles, an intoxicated person in a parked vehicle on a private driveway does not endanger other motorists merely because the vehicle overhangs the sidewalk. We do not believe the Legislature intended to make a citizen drinking a beer while cleaning out his vehicle parked in his driveway guilty of a crime because the vehicle is overhanging the sidewalk.
We reject the State's argument that criminal liability under § 60-6,196 extends to intoxicated persons in control of a vehicle parked on a residential driveway, regardless of whether part of the vehicle crosses a sidewalk. Accordingly, the arresting officers did not have probable cause to believe that McCave was an intoxicated person in actual control of a vehicle on private property open to public access. We next address the county court's conclusion that based on circumstantial evidence, the officers had probable cause to believe that McCave had been driving while intoxicated.
The county court concluded that because McCave had stated that he was leaving while he was in his vehicle with the keys in the ignition and the motor off, the officers could infer that McCave drove to John and Susan's house intoxicated. We disagree. Obviously, if McCave had committed an offense in front of the officers,
These facts are distinguishable from the majority of cases in which an officer stops a motorist for a traffic violation or driving erratically and then observes physical signs of intoxication. It is true that in DUI cases, circumstantial evidence can establish a person's operation of a motor vehicle.
In most of those cases, the facts showed that the defendant, who exhibited signs of intoxication, was found alone in a vehicle in a place where the vehicle could not have been unless the defendant drove it there.
In reversing, we emphasized the circumstances that precluded an inference that the defendant became intoxicated after the accident, when he was no longer driving:
It is true that the circumstances the officers encountered when they arrested McCave gave them probable cause to believe that he was intoxicated. According to Faz, when the officers arrived, John told them that McCave was intoxicated and causing a disturbance. When the officers approached McCave in the vehicle, his conduct and a beer in the vehicle's console supported a reasonable belief that he was intoxicated. But unlike in our earlier cases, the facts known to the officers were insufficient to support a conclusion that McCave had operated his vehicle while intoxicated.
A citizen informant who has personally observed the commission of a crime is presumptively reliable.
More important, the fact that John and Susan told the officers that McCave had left the house and returned did not indicate the means by which he had left or returned. No witness reported that McCave was driving a vehicle at any time, and the officers did not pose this critical question to McCave or any witness. Before officers invoke the power of a warrantless arrest, the Fourth Amendment requires them to investigate the basic evidence for the suspected offense and reasonably question witnesses readily available at the scene, at least when exigent circumstances do not exist.
John's statement that McCave had left and returned to the house and the officer's observation of McCave in his vehicle gave the officers reasonable suspicion to temporarily detain McCave while they investigated whether he had been driving while intoxicated. But the officers did not attempt to determine the relevant facts. They did not ask McCave or the witnesses how he had left the house or returned; they saw Kudron but did not speak to her; and they did not attempt to discover from a reliable source whether McCave was intoxicated when he returned to the house or if he had been drinking alcohol after he returned to the house. Instead, Faz stated, "I guess I just inferred with the beer being in the car that him and the beer got there by the vehicle."
But the facts did not support this inference when two other possibilities were equally plausible. McCave could have left and returned to the house intoxicated without driving. Or he could have become intoxicated after returning to the house. In contrast to events in our previous cases, the officers did not encounter a suspect in his or her vehicle who admitted to driving at some point before the encounter
McCave's illegal arrest did not bar the State from prosecuting him for the charged offenses with evidence that was untainted by the illegal arrest.
The State contends that suppressing tainted evidence would not have made a difference in the outcome. It argues that the only improperly admitted evidence would have consisted of the beer can that the police seized from McCave's vehicle. But the evidence that the court should have suppressed also included McCave's statements to officers after his arrest and his refusal to take the chemical breath test.
An erroneous admission of evidence is prejudicial to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.
Here, we cannot conclude that the admission of this evidence did not materially influence the outcome of the case. Because the county court did not suppress this evidence, we reverse the judgment of conviction for the DUI charge.
Upon finding reversible error in a criminal trial, an appellate court must determine
At trial, the direct evidence established that McCave never drove his vehicle after arriving at John and Susan's house in the afternoon before his arrest. Kudron had been staying with McCave at his mother's house, where he lived. She testified that Susan invited her and McCave to come over for a visit in the afternoon. John and Susan lived a couple of blocks from McCave's mother. McCave drove his vehicle over and parked in John and Susan's driveway. The witnesses disputed whether or by how much the vehicle hung over the sidewalk while parked in the driveway. Only the officers testified that the vehicle was straddling the sidewalk.
McCave did not consume any alcohol during the day, before or after arriving at John's house. Soon after arriving at John and Susan's house, he gave Kudron his car keys. She testified that he frequently did this so he would not be tempted to drive if he drank a couple of beers. At some point, McCave's mother came over to visit also. Close to evening, McCave walked her home and stated that he was going out with his friends afterward to a bar about five blocks away. John told McCave not to come back if he was intoxicated. Kudron stayed at the house, visiting Susan.
McCave was gone until around 11:30 p.m. or midnight, and John had retired to his room before McCave returned. Kudron did not believe that McCave was intoxicated when he returned. McCave told her that he was going to the "bottle shop" to get a couple of beers and some cigarettes and that he did not know whether he would walk or get a ride. Kudron stated that she still had his car keys. When he returned, McCave told Kudron that he had gotten a ride to the bottle shop and walked back. He had purchased two cans of beer.
McCave drank one beer in the house while watching television with Susan and Kudron. At some point, John observed McCave drinking a beer in the house and argued with Susan, but then went back to his room. After an hour or so of watching television, McCave, Kudron, and Susan went outside to listen to music from McCave's car stereo. Kudron stated that she put the keys in the ignition so they could listen to the radio while they stood outside the car. After about 45 minutes, Kudron and Susan went inside to get cigarettes.
John testified that he went outside and asked McCave to turn the music off and walk home. John stated that the motor was not running, the lights were off, and no one was in the vehicle with McCave. He also stated that McCave turned the music up louder after he went in, so he went back out to say that he would call the police if McCave did not turn it off and go home. John called the police around 1 or 1:30 a.m. He testified that he told the officers that he thought McCave had been drinking but did not say that he was drunk. He never saw McCave drinking any alcohol until after McCave had returned to the house.
The officers testified to basically the same facts that the State presented at the suppression hearing. They arrested McCave for trespass. Because they
In reviewing the sufficiency of the evidence for this conviction, we consider whether the evidence would have been sufficient if the court had properly admitted evidence of the beer seized from McCave's vehicle and his subsequent statements to the officers. Only where evidence lacks sufficient probative value as a matter of law may an appellate court set aside a guilty verdict as unsupported by evidence beyond a reasonable doubt.
First, McCave was on private property as a matter of law, not on a public highway and not on private property open to public access. The State spent considerable time establishing the position of the vehicle on the driveway. But as discussed, even if the officers were correct that the vehicle completely crossed the sidewalk, the sidewalk did not change the private character of the residential driveway. So the State could not support the DUI conviction by showing that McCave was in actual control of a vehicle on a public highway or private property that was open to public access.
Moreover, the State offered no new evidence that McCave had been operating a vehicle on a public highway while intoxicated. We have already determined that the circumstantial evidence failed to give the officers probable cause for his arrest for this charge. So without any new evidence offered at trial establishing that he had driven his vehicle, we also conclude that the State's circumstantial evidence failed as a matter of law to establish McCave's operation of vehicle on a public highway. Thus, double jeopardy does not permit a retrial on this charge.
At the start of the suppression hearing, McCave tied the "refusing to submit" charge to whether the officers had probable cause for an arrest. He argued that the issue was whether the private driveway was open to public access and "whether or not they had probable cause to arrest him for a DUI and make him submit to a chemical test." The court overruled the motion but agreed that if the officers did not have probable cause for an arrest, then McCave's refusal to submit to a test would not be at issue. We interpret McCave's argument, under his failure to suppress assignment of error, to be that the officers lacked authority to require him to submit to a chemical test because they lacked probable cause for the DUI arrest.
We agree that the unlawful arrest barred the State from prosecuting McCave for refusing to submit to a chemical breath test, in violation of Neb.Rev.Stat. § 60-6,197(3) (Reissue 2010). To be prosecuted for refusing to submit to a chemical test under § 60-6,197(3), the person must be an arrestee as described in subsection (2):
So the validity of a refusing to submit charge under § 60-6,197(3) depends upon the State's showing a valid arrest under § 60-6,197(2).
Under § 60-6,197(2), a peace officer can require a person to submit to a chemical test of his or her blood, breath, or urine when the following circumstances are present: (1) The officer has arrested the person for committing an offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a vehicle and under the influence of alcohol or drugs; and (2) the officer has reasonable grounds to believe that the person was driving or was in the actual physical control of a motor vehicle in this state while under the influence of alcohol or drugs, in violation of § 60-6,196. In addition, the person's conduct must not have occurred on "private property which is not open to public access."
Law enforcement officers must have probable cause to arrest a person for driving under the influence.
McCave assigns that the trial court erred in failing to sustain his motion for a directed verdict. In a criminal trial, after a court overrules a defendant's motion for a dismissal or a directed verdict, the defendant waives any right to challenge the trial court's ruling if the defendant proceeds with trial and introduces evidence. But the defendant may challenge the sufficiency of the evidence for the conviction.
In reviewing 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.
The State concedes that the evidence did not support this conviction. It submits that there is no evidence that McCave's vehicle was located in a public parking area or on a public highway as required by the open container statute. We agree.
After the jury found McCave guilty of the DUI charge, the county court separately convicted him of possessing an open container. We agree with the State that a public sidewalk is not a public parking area. The county court apparently relied on the DUI conviction to conclude that the circumstantial evidence was sufficient to show that McCave had possessed an open container while on a public highway. But the jury instruction permitted the jury to convict McCave because it found that he had operated or been in control of a vehicle on a highway or private property open to public access. Thus, the verdict failed to show that the jury believed that McCave had operated a vehicle on a highway. Under the State's arguments, it could have concluded that a residential driveway was private property open to public access.
We need not reach here, however, the issue whether circumstantial evidence can support an open container conviction. We have already determined that the circumstantial evidence was insufficient as a matter of law to prove that McCave had driven his vehicle on a public highway. Obviously, it necessarily follows that the State's circumstantial evidence could not have proved that he had possessed an open container of alcohol on a public highway. We also reverse this conviction.
McCave assigns that the district court erred in affirming the county court's ruling that Susan's statements were inadmissible hearsay. McCave argues that her statements, permitting him to be at the house, were offered not for the truth of the matter asserted but to show the effect that they had on him. That is, the statements explain why he reasonably believed he was licensed to be at the property. He also argues that proof of Susan's consent would have negated the knowledge and communication elements of the trespass charge.
McCave relies on the withdrawn portion of our opinion in State v. Parker
The State contends that the withdrawn portion of Parker is not authority for any subsequent case. It also contends that Susan's statements were offered for the
We agree that the county court's hearsay ruling excluding Susan's statements involved the knowledge element of the trespass charge and the "reasonable belief" component of the statutory defense.
The State could convict McCave of second degree criminal trespass only if it proved that he knew he was not licensed or privileged to be at John and Susan's residence: "A person commits second degree criminal trespass if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by: (a) Actual communication to the actor...."
Neb.Rev.Stat. § 28-522(3) (Reissue 2008) provides an affirmative defense against a prosecution for this trespass charge if "[t]he actor reasonably believed that the owner of the premises or other person empowered to license access thereto would have licensed him to enter or remain."
At trial, Kudron testified that close to evening, McCave told her that he was going to walk his mother, Patricia, home and then go to the bar. Kudron stated that he gave her his car keys and was gone for a couple of hours. She did not believe that he was intoxicated when he returned. Upon his return, he had told her that he was going to walk or get a ride to the bottle shop to get beer. But the court sustained the State's hearsay objection to Kudron's testimony that Susan told McCave that he could have only a couple of beers. Kudron then testified that McCave returned after 25 minutes with two cans of beer. At this point, John came out of his bedroom and became upset when he saw McCave drinking a beer. When Kudron stated that Susan told John that she had given McCave permission to be there, the court sustained the State's motion to strike the statement.
Later, McCave made an offer of proof, asserting that if the court had permitted Kudron to testify, she would have stated the following: When McCave returned from the bar, he asked Susan for permission to go to the bottle shop and buy a couple of beers. Susan stated that he could do that, but that he could have only two beers. When John came downstairs and was angry because McCave was drinking a beer, Susan told him that she had given McCave permission to stay there.
McCave argued that Susan's statement was not hearsay because it had legal significance and was relevant to whether he reasonably believed he was licensed to remain on the property. But the court again sustained the State's objection. It concluded that the purpose for offering the statements was blurred but that, to some extent, the statements were offered for the truth of the matter asserted.
The district court affirmed the ruling. It did not specifically address whether Susan's statements had legal significance apart from whether they were relevant to showing that McCave reasonably believed he was licensed to remain on the property. But it concluded that in other cases where
Apart from rulings under the residual hearsay exception, an appellate court reviews for clear error the factual findings underpinning a trial court's hearsay ruling and reviews de novo the court's ultimate determination to admit evidence over a hearsay objection.
We first address the State's argument that because Susan's statements were offered for the truth of the matter asserted, only Susan could have testified to what she had previously stated without raising a hearsay problem. The State's argument is inconsistent with Nebraska's statutory definition of hearsay: "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
Susan's previous statements to McCave and John were a declarant's out-of-court statements, not statements that Susan made while she was testifying as a witness. And she was not a party. Thus, if the State were correct that her statements were offered for the truth of the matter asserted, then—even if she had testified to her previous statements—they would have been hearsay unless they fell within a definitional exclusion under § 27-801(4)(a) or a statutory exception.
If an out-of-court statement is not offered for proving the truth of the
We have previously explained that words that constitute a verbal act are not hearsay even if they appear to be.
We stated that "where testimony is offered to establish [the] existence of a statement rather than to prove [the] truth of that statement, the hearsay rule does not apply."
This statement does not mean that any out-of-court statement is admissible to show that it was made.
So the county court and district court incorrectly reasoned that Susan's statements were inadmissible because offering them to show her consent could not be separated from the truth of the matter asserted. Common examples of verbal acts are words that constitute contractual agreements or terms, or words that establish an agency relationship.
Susan's statements were obviously relevant to the central issues. Remember, the State could convict McCave of second degree criminal trespass only if it proved that he intended to be on the property knowing that he was not licensed or privileged to do so. If the trier of fact had believed that Susan had made the offered statement, it would have negated the State's claim that McCave knew he was not licensed to be on the property. Because her statements to McCave were verbal acts that were relevant to the central issue in the case, they were not inadmissible as hearsay.
Similarly, Susan's statements authorizing McCave to be at the residence and informing John that she had done so were relevant under § 28-522 (the statutory affirmative defense) to determine whether McCave reasonably believed that she would have licensed him to enter or remain on the premises. Section 28-522 appears to apply mainly when a defendant cannot show an explicit license to be on the premises. But there is obviously an overlap between negating the knowledge element of the trespass charge and proving the affirmative defense, and McCave was entitled to assert both defenses. So in addition to showing that she consented to McCave's presence at her residence, Susan's statements were also relevant to show the effect that they had on McCave: i.e., to show that because of her statements, he reasonably believed that she would have licensed him to remain.
We agree with the State that the withdrawn portion of our decision in Parker
Because this recognized rule applies, we decline McCave's invitation to consider whether or when the "impact on the listener" category of nonhearsay statements should include more general statements to explain the course of events or to provide context to the evidence presented.
As noted, the district court also concluded that even if the county court's hearsay ruling was incorrect, it was harmless error. The district court reasoned that John had revoked Susan's authorization of McCave to enter or remain on the property. We disagree because this conclusion is inconsistent with the plain language of the affirmative defense under § 28-522.
Under § 28-521(1)(a), an actor must know that he is not licensed or privileged to enter because of an actual communication to the actor. But the statute does not specify who must make the communication. In contrast, the affirmative defense under § 28-522 applies if the defendant reasonably believed that "the owner of the premises or other person empowered to license access thereto would have licensed him to enter or remain."
Moreover, allowing one owner to revoke the consent of another co-owner is inconsistent with cotenancy principles that permit a cotenant to license access to the property without the consent of another cotenant, at least absent an agreement to the contrary.
In sum, both the county court and the district court erred in concluding that Susan's statements were inadmissible hearsay. And we cannot conclude that the improper exclusion of evidence central to the knowledge element of the trespass charge and McCave's reasonable belief under the affirmative defense did not prejudice his right to a meaningful opportunity to present a complete defense.
Because we have found that the county court's exclusion of Susan's statements was reversible error, we must also consider whether the admitted evidence
The State presented evidence that John had told McCave to leave the premises twice. As discussed, John's statements did not revoke Susan's license to McCave to be on the premises if proved. But John told McCave to leave, and Susan's statements were not admitted into evidence. Moreover, the State may have rebutted evidence of Susan's statements if the court had admitted them. So we conclude that double jeopardy does not preclude a remand for a new trial on the trespass charge.
Because we have reversed McCave's DUI conviction, we need not reach his assignment that the county court erred in failing to instruct the jury on the definition of a driveway. Because we have reversed his convictions and remanded for a new trial on the only remaining charge, second degree trespass, we need not reach his assignment that the sentences for his convictions were excessive.
We conclude that the lower courts erred in failing to determine that the officers lacked probable cause to arrest McCave for DUI. Because they lacked probable cause, McCave's arrest for DUI was unlawful and the county court erred in failing to suppress evidence derived from the arrest. This error was not harmless. And because the evidence was insufficient as a matter of law to support the guilty verdict, double jeopardy precludes a retrial on this charge. The unlawful arrest also rendered McCave's conviction for refusing to submit to a chemical test unlawful.
We conclude that the evidence was insufficient as a matter of law to sustain McCave's conviction for possessing alcohol in an open container.
Finally, the county court erred in excluding evidence relevant to the second degree trespass charge and the statutory defense to that charge. Although the evidence was sufficient to support the guilty verdict, the erroneous evidentiary ruling was not harmless. We reverse this conviction and remand for a new trial only on that charge.
We reverse the judgments of conviction for DUI, refusing to submit to a chemical test, and possessing an open container. We remand the cause with directions to vacate these convictions and sentences and to dismiss the charges.
REVERSED AND REMANDED WITH DIRECTIONS.
