State v. Buol ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/25/2023 09:10 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BUOL
Cite as 314 Neb. 976State of Nebraska, appellee, v.
Timothy A. Buol, appellant.
___ N.W.2d ___
Filed August 25, 2023. No. S-22-739.
1. Criminal Law: Courts: Appeal and Error. 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.
2. ____: ____: ____. When deciding appeals from criminal convictions in
county court, an appellate court applies the same standards of review
that it applies to decide appeals from criminal convictions in dis-
trict court.
3. Trial: Convictions: Evidence: Appeal and Error. An appellate court
will sustain a conviction in a bench trial of a criminal case if the prop-
erly admitted evidence, viewed and construed most favorably to the
State, is sufficient to support that conviction. In making this determi-
nation, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, evaluate explanations, or reweigh
the evidence presented, which are within a fact finder’s province for
disposition. Instead, the relevant question 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.
4. Appeal and Error. The filing of a statement of errors is simply a proce-
dural tool designed to frame the issues to be addressed in the appeal to
the district court.
5. Courts: Appeal and Error. The general rule is that when the district
court acts as an appellate court, only those issues properly presented
to and passed upon by the district court may be presented to a higher
appellate court. In such circumstances, absent plain error, an issue
raised for the first time in the Supreme Court or the Court of Appeals
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BUOL
Cite as 314 Neb. 976will be disregarded inasmuch as the district court cannot commit error
in resolving an issue never presented and submitted for disposition.
6. Drunk Driving: Blood, Breath, and Urine Tests: Evidence: Proof. A
driving under the influence offense can be shown either by evidence of
physical impairment and well-known indicia of intoxication or simply
by excessive alcohol content shown through a chemical test.
7. Drunk Driving: Blood, Breath, and Urine Tests: Proof. Matters of
delay between the operation or control of a vehicle and chemical testing
are properly viewed as going to the weight of the evidence.
Appeal from the District Court for Lancaster County, Robert
R. Otte, Judge, on appeal thereto from the County Court for
Lancaster County, Timothy C. Phillips, Judge. Judgment of
District Court affirmed.
Jonathan M. Braaten and Megan Langin, Senior Certified
Law Student, of Anderson, Creager & Wittstruck, P.C., L.L.O.,
for appellant.
Michael T. Hilgers, Attorney General, Erin E. Tangeman,
and Braden Dvorak, Senior Certified Law Student, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
Timothy A. Buol appeals from the district court’s order
affirming his convictions and sentences for driving under the
influence (DUI), 1 possession of an open alcoholic beverage
container, 2 and careless driving 3 after a bench trial before the
county court. Buol challenges the sufficiency of the evidence
to sustain his convictions. We conclude that the district court
did not err. Hence, we affirm.
1
Neb. Rev. Stat. § 60-6,196 (Reissue 2021).
2
Neb. Rev. Stat. § 60-6,211.08 (Reissue 2021).
3
Neb. Rev. Stat. § 60-6,212 (Reissue 2021).
- 978 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BUOL
Cite as 314 Neb. 976BACKGROUND
Bench Trial in County Court.
At a bench trial before the county court, the State presented
the testimony of a Lancaster County sheriff’s deputy. The dep-
uty testified that he was on general patrol when he responded
to a reported accident at approximately 10 p.m. on October
25, 2020. When the deputy arrived at the reported intersec-
tion, he observed an ambulance on the scene and a vehicle that
appeared to have slid off the road and into a ditch.
Relevant to this appeal, the deputy testified that he entered
the ambulance and encountered Buol lying on a gurney with a
“C-collar” around his neck. Buol told the deputy he was driv-
ing the vehicle and slid through the intersection. The deputy
noticed the “overwhelming odor of alcoholic beverage” and
asked Buol if he had consumed any alcoholic beverages that
evening. Buol responded that he had before driving and that he
had not consumed any additional alcohol since his vehicle slid
off the road. The deputy then conducted horizontal and vertical
gaze nystagmus tests. The tests indicated Buol was impaired
and, in the deputy’s opinion, under the influence of alcohol.
Buol was transported to a hospital, where a blood draw was
conducted sometime on October 26 after obtaining a warrant.
The deputy later received a test result that showed Buol had a
blood alcohol concentration (BAC) of .098.
In its written order, the county court found that the State
had met its burden of proof and adjudged Buol guilty of the
three counts: DUI, possession of an open alcoholic beverage
container, and careless driving.
Appeal in District Court.
Buol appealed from the judgment of the county court to the
district court. In doing so, Buol filed a statement of errors in
the county court and assigned a single error: “1. Insufficient
evidence to find [Buol] Guilty.”
In the district court, Buol filed a brief styled in the format
of a letter. In such brief, Buol argued only that there was
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BUOL
Cite as 314 Neb. 976insufficient evidence to sustain his conviction for operating a
motor vehicle while under the influence of alcohol. When the
appeal came before the district court, no arguments were pre-
sented and the matter was submitted on the parties’ briefing.
The district court concluded that the evidence presented
at trial was sufficient to sustain Buol’s DUI conviction and
that no abuse of discretion or error was shown in the record.
Accordingly, it affirmed the judgment of the county court. Buol
filed a timely appeal, and we moved this case to our docket. 4
ASSIGNMENT OF ERROR
Buol assigns that the evidence was insufficient to support
his convictions of (1) DUI, (2) possession of an open alcoholic
beverage container, and (3) careless driving.
STANDARD OF REVIEW
[1,2] 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. 5 When deciding appeals from criminal
convictions in county court, we apply the same standards of
review that we apply to decide appeals from criminal convic-
tions in district court. 6
[3] An appellate court will sustain a conviction in a bench
trial of a criminal case if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support that conviction. 7 In making this determination, an
appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, evaluate explanations,
4
See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022); Neb. Ct. R. App. P.
§ 2-102(C) (rev. 2022).
5
State v. Taylor, 310 Neb. 376, 966 N.W.2d 510 (2021).
6
Id.7
Id.- 980 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BUOL
Cite as 314 Neb. 976or reweigh the evidence presented, which are within a fact
finder’s province for disposition. 8 Instead, the relevant ques-
tion 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 rea-
sonable doubt. 9
ANALYSIS
Scope of Review.
As a preliminary matter, the State argues that Buol’s argu-
ments concerning the sufficiency of the evidence related to his
possession of an open alcoholic beverage container and care-
less driving are not properly before us. As noted above, Buol’s
statement of errors was filed in the county court and not in the
district court.
[4] The filing of a statement of errors is simply a procedural
tool designed to frame the issues to be addressed in the appeal
to the district court. 10 Neb. Ct. R. § 6-1518 (rev. 2022) provides
in relevant part:
Within 10 days of filing the bill of exceptions in
an appeal to 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. Each assign-
ment of error shall be separately numbered and para-
graphed. Consideration of the cause will be limited to
errors assigned, provided that the district court may, at its
option, notice plain error not assigned. 11
8
Id.
9
Id.
10
Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018).
11
See, also, Neb. Ct. R. § 6-1452 (rev. 2023) (stating Neb. Ct. R. § 6-1518
governs statement of errors requirement in appeals taken from county
court).
- 981 -
Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BUOL
Cite as 314 Neb. 976We have previously analogized the filing of a statement
of errors with separately stated assignments of error. 12 Under
that rule, any party who fails to properly identify and present
its claim does so at its own peril. 13 Depending on the par-
ticulars of each case, failure to comply with the mandates of
§ 2-109(D) may result in an appellate court waiving the error,
proceeding on a plain error review only, or declining to con-
duct any review at all. 14 In reviewing a judgment of a county
court, a district court has similar discretion.
[5] The general rule is that when the district court acts as
an appellate court, only those issues properly presented to and
passed upon by the district court may be presented to a higher
appellate court. 15 In such circumstances, absent plain error, an
issue raised for the first time in the Supreme Court or the Court
of Appeals will be disregarded inasmuch as the district court
cannot commit error in resolving an issue never presented and
submitted for disposition. 16
Before the district court, Buol argued only that there was
insufficient evidence to sustain his DUI conviction. Likewise,
the State’s response concerned only his DUI conviction. As
a result, the district court exercised its discretion, waived
Buol’s failure to file a statement of errors, and reviewed the
sufficiency of the evidence of his DUI conviction. On that
basis, we decline to review the sufficiency of the evidence
12
See Houser v. American Paving Asphalt, supra note 10. See, also, Neb. Ct.
R. App. P. § 2-109(D)(1)(e) (rev. 2022).
13
County of Lancaster v. County of Custer, 313 Neb. 622, 985 N.W.2d 612(2023).
14
Id.15
See, In re Estate of Trew, 244 Neb. 490, 507 N.W.2d 478 (1993); Haeffner
v. State, 220 Neb. 560, 371 N.W.2d 658 (1985). See, also, State v. Kubin,
263 Neb. 58, 638 N.W.2d 236 (2002); State v. Erlewine, 234 Neb. 855,
452 N.W.2d 764 (1990).
16
See, In re Estate of Trew, supra note 15; Haeffner v. State, supra note 15.
Cf. State v. Taylor, supra note 5.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BUOL
Cite as 314 Neb. 976for Buol’s possession of an open alcoholic beverage con-
tainer and careless driving convictions, and we consider
only whether the district court erred in affirming Buol’s
DUI conviction.
Sufficiency of Evidence for DUI Conviction.
[6] Under § 60-6,196, to warrant a conviction for DUI, the
essential elements the State must prove beyond a reasonable
doubt are (1) that the defendant was operating or was in actual
physical control of a motor vehicle and (2) that at the time the
defendant did so, he or she was either under the influence of
alcoholic liquor or any drug, or had a physical alcohol con-
centration in excess of the legal limits. 17 A DUI offense can
be shown either by evidence of physical impairment and well-
known indicia of intoxication or simply by excessive alcohol
content shown through a chemical test. 18 The district court
concluded that the evidence presented at trial was sufficient to
prove that Buol was operating a motor vehicle while under the
influence of alcohol. We agree.
At the bench trial, the deputy testified to the deputy’s obser-
vations of Buol’s physical impairment and well-known indicia
of intoxication, including Buol’s performance on the horizontal
and vertical gaze nystagmus tests and the presence of the odor
of alcohol, which established that Buol was under the influ-
ence of alcohol when the deputy arrived. Thereafter, chemical
testing showed that Buol had a BAC greater than the legal
limit. However, Buol argues that insufficient evidence was
presented to prove these elements at the time he was operating
or in actual physical control of a motor vehicle. In support,
Buol cites State v. Martin 19 and contends that no evidence was
adduced that established any timeframe based on the deputy’s
arrival on the scene.
17
See State v. Grutell, 305 Neb. 843, 943 N.W.2d 258 (2020).
18
State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008).
19
State v. Martin, 18 Neb. App. 338, 782 N.W.2d 37 (2010).
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BUOL
Cite as 314 Neb. 976In Martin, an officer was dispatched to an area in refer-
ence to “‘suspicious parties,’” where he observed a group of
people standing near a vehicle drinking beer, one of whom
was the defendant. 20 When the officer arrived, no one was in
the vehicle and there was nothing suspicious about the way the
vehicle was parked. The officer observed damage to the front
and passenger side of the vehicle, including a blown tire and a
missing side-view mirror. The defendant admitted to the officer
that he had been driving the vehicle when his vehicle struck
a curb and several mailboxes at a different location. While
interacting with the defendant, the officer observed well-known
indicia of intoxication displayed by the defendant. In that case,
the Nebraska Court of Appeals found that at trial, no evidence
was presented of the defendant’s impairment level when he
was operating the vehicle. Indeed, no evidence was adduced
that suggested when the defendant was driving his vehicle or
whether the defendant had consumed any alcoholic beverages
at that time.
The Court of Appeals did not address the limits of estab-
lishing a timeframe to draw a rational inference that the crime
was committed beyond a reasonable doubt in Martin, but
Buol’s case is readily distinguishable. The relevant question
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt. 21
Unlike Martin, the deputy came into contact with Buol at
the scene where his vehicle was in a ditch, no evidence was
presented that suggests another individual may have been driv-
ing, Buol showed visible signs of being intoxicated, and sub-
sequent chemical testing showed Buol’s BAC was in excess
of the legal limits. Further, the deputy testified that Buol
admitted to consuming alcoholic beverages before driving
20
Id. at 339, 782 N.W.2d at 39.
21
See State v. Taylor, supra note 5.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BUOL
Cite as 314 Neb. 976his vehicle and a lack of consumption after his vehicle slid
off the road. While Buol was no longer in his vehicle at the
time of the deputy’s arrival, and no evidence was presented to
establish a precise timeframe, when viewing the evidence in
the light most favorable to the prosecution, a rational infer-
ence could be drawn that Buol was intoxicated at the time
he was operating or in actual physical control of the vehicle.
The lack of a precise timeframe does not prevent a finder of
fact from inferring a timeframe. It is a matter of the weight of
the evidence.
For example, in State v. Blackman, 22 we found sufficient
evidence existed to sustain the defendant’s DUI conviction
when the officer arrived at the scene 15 to 20 minutes after
receiving a report that a vehicle was observed in a road-
side ditch and the officer observed symptoms of intoxica-
tion almost immediately upon encountering the defendant.
Under those circumstances, we held that any question of delay
between the operation or control of a vehicle and chemical
testing went to the weight of the evidence. We concluded that
it could “reasonably be inferred that the deputy found [the
defendant] where he had come to rest after losing control of
his motorcycle and that [the defendant’s] state of intoxication
at that time existed when he last operated the motorcycle on
the county road.” 23
[7] Similarly, in State v. Dinslage, 24 we reaffirmed our ear-
lier precedent that matters of delay between the operation or
control of a vehicle and chemical testing are properly viewed
as going to the weight of the evidence. In that case, the defend­
ant argued that because of the significant amount of alcohol
that the defendant consumed at “‘last call,’” 25 the chemical
22
State v. Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998).
23
Id. at 949, 580 N.W.2d at 551.
24
See State v. Dinslage, 280 Neb. 659, 789 N.W.2d 29 (2010) (citing State v.
Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990)).
25
Id. at 661, 789 N.W.2d at 32.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. BUOL
Cite as 314 Neb. 976testing, which was conducted approximately 50 minutes after
being stopped by law enforcement, was insufficient to establish
that the defendant had a BAC in excess of the legal limits when
the defendant was operating the vehicle at the time of her stop.
The timing of the defendant’s consumption and subsequent
chemical testing was an issue of the weight of the evidence to
be resolved by the finder of fact, which the trial court resolved
in rendering its verdict.
“A fact may be proved by direct evidence alone; by circum-
stantial evidence alone; or by a combination of the two.” 26 In
Buol’s case, sufficient circumstantial evidence was presented
for a rational trier of fact to have found beyond a reasonable
doubt that Buol was under the influence of alcoholic liquor
or had a physical alcohol concentration in excess of the legal
limits at the time he was operating or was in actual physical
control of a motor vehicle. Accordingly, the evidence was suf-
ficient to support his DUI conviction.
CONCLUSION
Sufficient evidence was presented at trial to sustain Buol’s
DUI conviction, and we therefore affirm.
Affirmed.
26
NJI2d Crim. 5.0. See State v. Miranda, 313 Neb. 358, 984 N.W.2d 261(2023).