Stephan, J.
Daniel D. Matit, also known as Yai Bol, was charged with and convicted of fourth-offense driving while under the influence (DUI). Matit was sentenced to a term of imprisonment of 2 to 3 years and his driver's license was revoked for 15 years. He appeals his conviction and sentence. Finding no reversible error, we affirm.
At approximately 1 a.m. on March 5, 2012, Sgt. Benjamin Miller of the Lincoln Police Department was conducting surveillance in a marked police car in the area of 13th and E Streets in Lincoln, Nebraska. Miller's car was parked about 1 ½ blocks east of an apartment complex he was watching. Miller saw a vehicle parked on a concrete drive between the street and the sidewalk in what Miller referred to as "the city right of way" in front of the apartment complex. At various times, he saw people approach the vehicle.
On five separate occasions, Miller observed the taillights of the vehicle come on and saw exhaust coming from the tailpipe, making him believe the vehicle had been started, as if to drive away. Each time, the vehicle's engine stayed on for a few
Based on his observations, Miller made contact with the person in the vehicle, who provided identification demonstrating that he was Matit. Miller later learned that Matit also uses the name "Yai Bol" and that the vehicle was registered to Bol. Miller noticed that Matit's eyes were bloodshot and watery and that there was a strong odor of alcoholic beverage about Matit's person. In addition, Matit's speech was slurred and his dexterity was poor. Miller asked Matit to get out of the car, and when Matit did not cooperate, Miller opened the door and helped him out of the vehicle. As they approached Miller's police car, Miller noticed that Matit stumbled and staggered. Miller administered the horizontal gaze nystagmus test to Matit and observed impairment. Miller did not ask Matit to complete additional standardized field sobriety tests, because Matit was uncooperative and Miller was concerned about safety. Miller asked Matit to take a preliminary breath test. Matit refused, and Miller transported him to a detoxification center. After Matit was placed under arrest, he provided a breath sample. The test showed Matit's blood alcohol level was .216.
Matit was charged by information in Lancaster County District Court with DUI, over .15 concentration, and three prior convictions. One of the prior offenses was alleged to have occurred in Hall County, Nebraska, and the other two were alleged to have occurred in Vermont.
Matit filed a motion to suppress in which he asserted that police "lacked probable cause to contact, stop, detain, and/or arrest" him. He generally argued that Miller was not justified in pursuing a DUI investigation after contacting him, because he was parked on private property. After conducting a suppression hearing, the district court entered an order denying the motion. The court found that Matit's vehicle was "parked in virtually the middle of that portion of the concrete drive located between the street and the sidewalk (i.e., in the public right-of-way), facing towards the courtyard of the apartment complex." After considering this court's decisions in State v. Prater
The case proceeded to trial, at which Miller testified as a witness for the State as summarized above, and Matit testified in his own behalf. Matit acknowledged that he also uses the name "Yai Bol." He testified that on March 5, 2012, he visited a friend at the 13th and E Streets location and remembered sitting in the vehicle in the drive, but he did not remember starting the vehicle. He said the vehicle was never moved while he was there. He was drinking beer that night, starting at 11 p.m. while at a friend's house. Although he admitted he was intoxicated, Matit denied drinking any alcohol in the car. He also denied urinating on a tree.
The jury found Matit guilty of DUI with a concentration of more than .15 of 1 gram or more by weight of alcohol per 210 liters of his breath at the time he was operating or in the actual physical control of a motor vehicle. After an enhancement hearing,
Matit assigns, restated, (1) that the district court erred in overruling his motion to suppress for lack of probable cause to arrest because his vehicle was on private property not open to public access, (2) that the evidence was insufficient to support his conviction, (3) that the district court erred in ruling that two prior convictions could be used for sentence enhancement, (4) that the district court erred in issuing an order nunc pro tunc which changed the number of prior convictions from two to three, and (5) that the district court abused its discretion by imposing an excessive sentence.
In reviewing a trial court's ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, an appellate court applies a two-part standard of review. Regarding historical facts, we review the trial court's findings for clear error, but whether those facts trigger or violate Fourth Amendment protections is a question of law that we review independently of the trial court's determination.
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 relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.
Nebraska's DUI statutes do not apply to operation or control of a vehicle on private property that is not open to public access.
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.
The key inquiry in this case is whether it was reasonable for Miller to conclude that Matit's vehicle was situated on property which was open to public access. We considered the question of whether a roadway was open to public access in State v. Prater
In McCave,
Matit's vehicle was parked on a paved area between the sidewalk and the street. The arresting officer testified that he understood this area was a part of the city's right-of-way. He also testified that he had observed the area on other occasions and had seen vehicles park in and then leave the paved area. He understood the paved area was so used by both residents of the apartment complex and nonresidents. Based on this evidence, the district court did not err in finding that Miller had a reasonable belief that the vehicle was situated on property that was open to public access.
Miller was justified in approaching the vehicle after observing the driver exit the vehicle and urinate on a tree, which was an unlawful act. When Miller encountered Matit in an intoxicated state, he had probable cause for the arrest because he had observed Matit start the vehicle on several occasions while it was situated on what the officer reasonably believed to be a part of a public roadway. The district court did not err in denying Matit's motion to suppress.
The State charged Matit with violating Neb.Rev.Stat. § 60-6,196 (Reissue 2010) by operating or being in actual physical control of a motor vehicle upon a highway or anywhere throughout the state except for private property not open to public access while under the influence of alcohol, or with a concentration of .08 of 1 gram or more by weight of alcohol per 210 liters of his breath. Matit does not dispute the fact that he had a breath alcohol concentration in excess of the lawful limit at the time of his arrest. But he challenges the sufficiency of the evidence to support his conviction on the ground that the State did not prove that he operated or was in actual physical possession of a motor vehicle on a roadway or other area to which the public had access. Our standard of review with respect to this claim is very narrow, in that we must find the evidence to be sufficient if there is any evidence, when viewed in a light favorable to the prosecution, upon which a rational finder of fact could conclude that the State met its burden of proof beyond a reasonable doubt.
The evidence with respect to Matit's operation or physical control of the vehicle came primarily from the testimony of Miller. He testified that on five separate occasions, he saw Matit start the parked vehicle. Miller could tell the vehicle had been started, because the headlights and taillights came on and exhaust came out of the tailpipe. Each time, the vehicle's engine ran for a few minutes and was then turned off. When Miller approached the vehicle, he saw the ignition keys near the console next to the driver's seat.
Circumstantial evidence may serve to establish the operation of a motor vehicle for purposes of the DUI statutes.
Miller testified at trial, as he did at the suppression hearing, that Matit's vehicle was situated on the paved area between the street and the sidewalk. He testified that based upon his understanding of the laws and ordinances of the city of Lincoln, the area where the vehicle was parked was a public right-of-way owned by the city of Lincoln. He testified that no portion of Matit's vehicle impeded the sidewalk. Miller also testified that the area between the street and the sidewalk was open to both pedestrian and vehicular traffic. Whether Matit's vehicle was situated on property open to public access was a question of fact.
Matit argues that the sentence imposed on him is excessive. He was sentenced to a term of 2 to 3 years in prison, to be served consecutively to his sentences in another DUI case. His driver's license was also revoked for 15 years.
Matit was found guilty of a Class III felony,
When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime.
The presentence report indicates that Matit has filed two other appeals. One was recently resolved by this court in State v. Bol,
The sentence imposed by the trial court was within the statutory limits for a Class III felony. Based on Matit's criminal record and considering all of the relevant sentencing factors, we conclude the district court did not abuse its discretion in imposing the sentence.
Matit argues the district court erred in using two prior Vermont convictions to enhance his sentence and in issuing an order nunc pro tunc changing the number of prior convictions from two to three. Both of these assignments of error arise from proceedings that were consolidated at trial with proceedings involving a separate DUI prosecution of Matit. The appeal from that separate prosecution was resolved by this court in State v. Bol,
For the reasons discussed, we affirm the judgment of the district court.
AFFIRMED.