McCormack, J.
This case is before this court on further review of the decision of the Nebraska Court of Appeals.
On May 20, 2011, Taylor was arrested for driving under the influence of alcohol. On August 26, 2011, the State filed an information charging Taylor with DUI. The State alleged that it was his fourth offense, which would enhance the conviction to a Class IIIA felony. The State
On January 19, 2012, Taylor pled guilty to DUI. The State provided a factual basis for the offense, and the district court accepted Taylor's plea. The district court then immediately proceeded to an enhancement hearing.
At the enhancement hearing, the State presented five exhibits. For Taylor's 1999 and 2001 DUI convictions, the State offered the certified court records. The exhibits were entered without objection. The State testified that the Lancaster County Court could not locate the certified court record for Taylor's 2002 DUI conviction.
In lieu of the certified court record for the 2002 conviction, the State offered exhibits 1, 2, and 5. Exhibit 1 is a certified copy of the electronic records of case No. CR02-4882 from JUSTICE, an online court records retrieval system in Nebraska. Exhibit 1 contains the citation number, the date the case was filed, the plea date, and the sentencing date. Exhibit 2 is a certified copy of the bill of exceptions from that case. It includes the arraignment, the plea hearing, and the sentencing hearing. During the plea hearing for the 2002 conviction, the parties stipulated that there was a factual basis to accept Taylor's guilty plea. Exhibit 5 is a certified copy of Taylor's driving record from the Nebraska Department of Motor Vehicles. It shows the same citation date as exhibit 1, the same case number as exhibits 1 and 2, and the same judgment date as exhibit 2. Exhibit 5 lists the citation date as March 17, 2002. None of the three exhibits state the date of the offense.
Exhibit 2 was received by the district court without objection. Counsel for Taylor objected to exhibit 1 based on relevance and to exhibit 5 based upon foundation, relevance, hearsay, and hearsay within hearsay. The district court overruled these objections and received the evidence.
Using the three exhibits, the district court found that the State had met its burden of proof for the prior 2002 conviction. The court found that Taylor had three prior convictions and that the current DUI offense should be enhanced to a fourth offense. Following a hearing, the district court sentenced Taylor to 90 days' imprisonment, 3 years' probation, a $1,000 fine, and a license revocation of 15 years.
On appeal, the Court of Appeals affirmed and held that although there was no offense date in the record, it was clear from the exhibits the DUI offense occurred in 2002.
In his petition for further review, Taylor assigns that the Court of Appeals erred in finding that the court-certified copy of electronic JUSTICE records received as exhibit 1, a certified copy of the bill of exceptions received as exhibit 2, and a certified copy of Taylor's driving record were sufficient to establish Taylor's prior DUI conviction in case No. CR02-4882.
On a claim of insufficiency of the evidence, an appellate court, viewing and construing the evidence most favorably to the State, will not set aside a finding of a previous conviction for the purposes of
Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.
The question before us is whether the State must prove an exact offense date for a prior conviction to meet its burden in establishing Taylor's 2002 DUI conviction for purposes of enhancement. Taylor argues that because the State failed to prove an offense date, it cannot meet its burden to prove by a preponderance of the evidence that the violation in CRO2-4882 was committed within the 12 years previous to the conviction for fourth-offense DUI.
In order to prove a prior conviction for purposes of sentence enhancement, the State has the burden to prove the fact of prior convictions by a preponderance of the evidence, and the trial court determines the fact of prior convictions based upon the preponderance of the evidence standard.
Neb.Rev.Stat. § 60-6,197.03 (Reissue 2010) sets out the penalties for DUI convictions. The penalties include increased sentences for repeat DUI offenses. Neb. Rev.Stat. § 60-6,197.02 (Reissue 2010), which is the statute at issue in this case, explains how to determine prior DUI offenses for purposes of sentence enhancement. At the time of Taylor's arrest in 2011, § 60-6,197.02 stated:
(Emphasis supplied.)
Statutory language is to be given its plain and ordinary meaning, and this court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.
We find that the plain and ordinary meaning of § 60-6,197.02 does not require the State to prove the exact date of the prior offense. It states that "[p]rior conviction means a conviction for a violation committed within the twelve-year period prior to the offense for which the sentence is being imposed...."
Once the State meets it burden, § 60-6,197.02 shifts the burden to the defendant.
Before we address the evidence presented, Taylor argued in his brief and at oral argument that the district court erred in receiving exhibits 1 and 5 over Taylor's objections. However, we note that these objections were not assigned in his petition for further review. The only issue assigned by Taylor on further review is whether the State sufficiently met its burden. It is well established that a petition for further review and supporting memorandum brief must specifically set forth and discuss any error assigned to the Court of Appeals.
Here, the preponderance of the relevant evidence establishes that the offense at issue had to have occurred on or after September 1, 2001. At the plea hearing for the 2002 conviction, the district court repeatedly referenced that Taylor had been charged with DUI with a blood alcohol concentration of .08 of 1 gram or more by weight of alcohol per 210 liters of breath. This is crucial because in 2001, the Legislature had lowered the level from.10 of 1 gram to .08 of 1 gram.
After the district court found that the State had carried its burden concerning the 2002 DUI conviction, the district court properly shifted the burden back to Taylor.
Therefore, we affirm the Court of Appeals' decision that the district court correctly found that the relevant evidence makes it more likely than not that the 2002 DUI conviction's offense date was within 12 years of the 2011 DUI offense.
For purposes of enhancement of a DUI offense, the State is not required under § 60-6,197.02 to provide an exact offense date for prior convictions. Rather, the State is required to prove by the preponderance of the evidence that the prior offense occurred within the 12 years prior to the offense for which the defendant is being charged. In this case, the evidence establishes that Taylor's 2002 DUI conviction more likely than not occurred within the 12 years prior to his May 20, 2011, DUI offense. For this reason, we affirm the Court of Appeals' decision.
AFFIRMED.