Yai Bol, also known as Daniel D. Matit, was convicted of one count of driving under the influence (DUI) with refusal of a chemical test and one count of driving during revocation. He appeals, challenging his convictions and sentences. Finding no error, we affirm the judgment of the district court.
An information filed in the district court for Lancaster County charged Matit, also known as Bol, with three counts. The charges arose out of a traffic stop that occurred on May 7, 2012. The information was later amended to charge Bol, also known as Matit, with two counts: DUI with refusal of a chemical test, three prior convictions, and driving during revocation or impoundment, first offense. Because the operative information uses the name "Bol," so will we in this opinion.
Bol filed a motion to suppress evidence gathered during the traffic stop, claiming police lacked probable cause to initiate the stop. Sgt. Benjamin Miller of the Lincoln Police Department testified at a hearing on the motion. Miller testified that he was on patrol in the area of 13th and E Streets in Lincoln, Nebraska, at about 1:20 a.m. on May 7, 2012. While traveling west, he saw a sport utility vehicle (SUV) traveling east toward his patrol car begin to make a right turn at the intersection of 14th and E Streets, then erratically change direction, and then make another erratic turn, so that it ultimately made a complete U-turn and was heading west. The SUV did not use turn signals. After the SUV turned to head west, it almost immediately parked along the street. As Miller passed the SUV, he noticed it was parked almost 3 feet from the curb, which he believed was a violation of a city ordinance.
Miller decided to turn his car around and contact the driver of the SUV. As he did so, he saw Officer Anthony Gratz of the Lincoln Police Department turn onto E Street and drive toward the parked SUV. Miller asked Gratz to make contact with the driver of the SUV, because Gratz could get there more quickly. Gratz was thus the first officer to contact the SUV driver; Miller arrived shortly after Gratz.
After hearing this evidence, the district court denied Bol's motion to suppress. It found there was probable cause for police to initiate contact with the driver of the SUV based on Miller's observations of the erratic driving, the failure to use turn signals, and the manner in which the SUV was parked.
The case proceeded to a jury trial. At trial, Miller again explained what he observed prior to contacting the driver of the SUV and explained that he learned upon contacting the driver that he was Bol. Miller testified that he immediately noticed both that Bol had "bloodshot, watery eyes" and that there was an "odor of alcoholic beverage coming" from Bol and the SUV.
Bol agreed to participate in field sobriety tests, and Miller administered three: the horizontal gaze nystagmus test, the nine-step walk-and-turn test, and the one-leg stand test. Miller testified that Bol showed signs of impairment on each test. After Miller administered the tests, he placed Bol in his patrol car and asked him to take a preliminary breath test. Bol refused.
Miller then transported Bol to a detoxification center. At the center, Miller read Bol a postarrest chemical test advisement form, which informed Bol that he was required to take a chemical test and that refusal to do so was a separate crime. Bol refused to submit to the
After Miller's testimony, the State rested. Bol's counsel then moved for a directed verdict, which was denied. Counsel for the State then informed the court, "I guess there's an issue we have to take up as far — There's a trial stipulation that did not get into evidence." The court then acknowledged that there had been no evidence presented on the charge of driving under revocation and asked, "So, are we going to take out" that count? The State responded that it was asking for leave to reopen its case in chief to submit a written stipulation entered into by the parties on the revocation issue, which stipulation it had inadvertently failed to offer into evidence. Over Bol's objection, the court allowed the State to offer the written stipulation as an exhibit. The stipulation states that on May 7, 2012, Bol's driver's license had been administratively revoked.
Bol then testified in his own defense. He acknowledged that he also goes by the name "Daniel Matit." He stated that he performed the U-turn because he was looking for a parking spot and there was one available on the south side of the street. He thought the turn might have been erratic because his SUV was quite large and he was having trouble with its power steering. Bol testified that he parked the SUV close to the curb. He denied drinking on May 7, 2012, and testified that Miller gave him Miranda warnings prior to asking him to take a preliminary breath test. Bol stated that he refused that test and the later chemical test based on his understanding that anything he said or did could be used against him. Bol admitted that he was read the postarrest chemical test advisement and that he understood it was a crime not to take the test.
Gratz also testified and generally corroborated Miller's testimony about how the traffic stop occurred. He was unable to recall many details about the stop, however. After deliberation, the jury returned a verdict of guilty on both counts.
A sentence enhancement hearing was held on February 14, 2013. The State attempted to establish that Bol had three prior DUI convictions: one in Hall County, Nebraska, and two in Vermont. Bol objected to the Vermont convictions. After an enhancement hearing, the district court entered an order finding Bol had two prior DUI convictions, making the current conviction a third offense. Four days later, the court entered an order "nunc pro tunc," finding Bol had three prior DUI convictions, making the current conviction a fourth offense.
Bol was sentenced to 2 to 3 years' imprisonment for fourth-offense DUI with refusal of a chemical test and to 6 months' imprisonment for driving under revocation, the sentences to run concurrently. He filed this timely appeal.
Bol assigns (1) the district court abused its discretion in failing to grant the motion to suppress, (2) the district court abused its discretion by allowing the State to reopen its case after it rested, (3) the evidence adduced at trial was insufficient to sustain a conviction for DUI with refusal of a chemical test, (4) the district court erred in finding the Vermont convictions were valid prior convictions for purposes
The Fourth Amendment guarantees the right to be free of unreasonable search and seizure. This guarantee requires that an arrest be based on probable cause and limits investigatory stops to those made upon an articulable suspicion of criminal activity.
Bol argues that the police lacked authority to contact him. A traffic stop requires only that the stopping officer have specific and articulable facts sufficient to give rise to a reasonable suspicion that a person has committed or is committing a crime.
Bol contends the motion to suppress should have been granted, because Gratz, the first officer to make contact with him, did not personally testify about the facts justifying the stop. Bol contends that it is "unreasonable that the Court should rely upon an officer's explanation of what another officer considered appropriate grounds to initiate a traffic stop."
In determining whether there is reasonable suspicion for an officer to make an investigatory stop, the totality of the circumstances must be taken into account.
After it rested, the State requested leave to reopen its case in chief in order to submit an exhibit that it had inadvertently failed to offer into evidence. The court allowed the State to do so. Bol asserts this was error.
In criminal prosecutions, the withdrawal of a rest in a trial on the merits is within the discretion of the trial court.
Bol relies heavily on State v. Gray.
Two other Nebraska cases are also of import. In State v. Thomas,
In State v. McKay,
The instant case is also much more similar to Thomas than to Gray. It is true that without the evidence submitted by the State after being allowed to withdraw its rest, Bol could not have been convicted of driving during a period of revocation. However, Thomas makes it clear that withdrawal of rest to fill in gaps in proof is proper, as long as the court does not advocate for or advise the State to withdraw its rest. Here, Bol argues that the court alerted the State that it had failed to offer proof of the driving on revocation charge and thus acted improperly. But this is not what the record shows. It is clear that the State initiated discussion about the lack of proof on the revocation charge with the court, and it was only after the State had initiated the discussion that the court agreed there had been a lack of proof on the issue. On the facts before us, the court did not improperly abdicate its role as a neutral fact finder and did not abuse its discretion in allowing the State to withdraw its rest to put on additional evidence.
Bol argues the evidence was insufficient to support the jury's verdict. 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.
In his brief, Bol challenges the sufficiency of the evidence as it relates to both his conviction for DUI and his conviction for refusing to submit to a chemical test. But his arguments go to nothing more than the credibility of the witnesses or factual disputes between the witnesses. Viewed in the light most favorable to the State, the evidence is sufficient to support both convictions.
At the enhancement hearing, the State sought to establish that Bol had three prior DUI convictions: one in Hall County and two in Vermont. Bol does not dispute the Hall County conviction, but he contends on appeal that the State failed to prove that he was the defendant in the two Vermont prosecutions.
In a proceeding to enhance punishment because of prior convictions, the State has the burden of proving such prior convictions by a preponderance of the evidence.
Under Nebraska law, a prior conviction for purposes of a DUI prosecution includes any conviction under a law of another state if, at the time of the conviction, the offense would have been a violation of Nebraska's DUI statutes.
One of the Vermont convictions was in 2006. The 2006 Vermont conviction record identifies the defendant as "Yai Bol" and "Yai D. Bol," born on January 1, 1986. At the enhancement hearing, Bol testified that he was born on January 1, 1986. Thus, Bol has the same name and birth date as the person convicted of DUI in Vermont in 2006. This is sufficient to establish a prima facie showing that he is that person.
Bol contends that because he denied being the person convicted in Vermont in 2006, the burden shifted to the State to show he was that person. But we do not see any such denial in the record before us. At the enhancement hearing, Bol was not asked any questions about the 2006 Vermont conviction, and he made no reference to it in his testimony. Accordingly, the prima facie showing was not rebutted, and the evidence was sufficient to establish that Bol was the same person convicted of DUI in Vermont in 2006.
The other Vermont conviction occurred in 2009. The record from this conviction identifies the defendant at various places as "Daniel A. Matit," "Daniel D. Matit," and "Daniel Matit," born on January 1, 1989. It was established at trial
There is also fingerprint evidence linking Bol to a person named "Yai Bol" who resided in Vermont in 2009. David Sobotka, a fingerprint examiner for the identification bureau of the Lincoln Police Department, testified that he compared fingerprint cards of "Yai Dau Bol" and "Daniel Deng Matit" which he obtained from the "IAFIS" database of the Federal Bureau of Investigation (FBI). The fingerprints did not match, and Sobotka testified that this meant that there is a "Daniel Matit" who is not the same person as the "Yai Bol" who provided the fingerprints.
But Sobotka also compared the fingerprints of "Yai Dau Bol" obtained from the FBI database to fingerprints from "Daniel Deng Matit" taken by the Lincoln Police Department on May 7, 2012, and determined they were made by the same person. He also compared Bol's fingerprints from the FBI database and Matit's fingerprints taken by the Grand Island, Nebraska, police department in 2011 and determined they were made by the same person. Finally, Sobotka compared the same fingerprints of Bol from the FBI database with those of a "Yai Bol" who was arrested in Vermont on various charges in May 2009, approximately 2 months after the Vermont DUI conviction which is at issue. Again, the two sets of fingerprints matched. The date of birth of "Yai Bol" on the Vermont fingerprint card was January 1, 1986. Also, the photograph on the Vermont fingerprint card bears a striking resemblance to the photographs on the Lincoln and Grand Island fingerprint cards.
Thus, the record reflects (1) that Bol had the same name as the person convicted of DUI in Vermont in 2009, (2) that Bol lived in Vermont in 2009, (3) that Bol owned a green Ford Explorer registered in Mississippi which matches the description of the vehicle operated by the person who was convicted of DUI in Vermont in 2009, and (4) that the date of birth on the 2009 Vermont conviction matches the date of birth which Bol gave to Grand Island police when he was arrested for DUI in 2011. On this record, the State proved by a preponderance of the evidence that Bol is the same person who was convicted of DUI in Vermont in 2009.
For completeness, we note Bol's additional argument that the State should not be permitted to rely on the principle of collateral estoppel to argue that he is barred from challenging the use of the 2009 Vermont conviction to enhance his current conviction on the ground that it was used to enhance a DUI conviction in Lancaster County, Nebraska, in 2012. It
When entering a judgment of conviction for DUI, "the court shall, as a part of the judgment of conviction, make a finding on the record as to the number of the convicted person's prior convictions."
At the subsequent sentencing hearing, the court stated, "I truly do not understand how or why I typed and then signed [the order] showing a third offense rather than a fourth offense, because those findings were not and are not consistent with the evidence presented at the enhancement hearing." The court continued by noting that the order nunc pro tunc reflected the evidence from the enhancement hearing that Bol had three prior DUI convictions that could be used for enhancement purposes. The court also noted that it had determined Bol was represented by counsel or waived counsel at all critical stages in each of those cases. Bol argues that the court erred in issuing the order nunc pro tunc changing the number of prior convictions.
A court has inherent power in a criminal case to correct its records to reflect the "truth," nunc pro tunc.
In State v. Painter,
In this case, as in Painter, the error in question was a misstatement by the judge, not an error by a scrivener. Thus, the second order which modified the court's finding with respect to the number of prior convictions cannot be properly termed an order nunc pro tunc. But if the court had jurisdiction and authority to enter the second order, its incorrect characterization as an order nunc pro tunc is of no consequence.
Relying upon State v. Cousins,
But these cases are not controlling here, because we are not dealing with a purported modification of a sentence. Instead, the district court's order finding there were two prior convictions was simply a finding of fact which, like other facts in the case, would subsequently be considered by the court in imposing a sentence. Nothing prevents a court from changing a factual finding while it still has jurisdiction over the case.
In State v. Hausmann,
Bol contends the sentences imposed by the district court are excessive. DUI, aggravated fourth offense, is a Class III felony.
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
The presentence report indicates that Bol has filed two other appeals. One, decided by this court, involved a conviction for DUI, fourth offense, a Class III felony.
The sentences imposed by the trial court were within the statutory limits. Based on Bol's criminal record and after considering
For the reasons discussed, we affirm the judgment of the district court.
AFFIRMED.