City of Beatrice v. Meints ( 2014 )

Decisions of the Nebraska Court of Appeals
CITY OF BEATRICE v. MEINTS 805
Cite as 21 Neb. Ct. App. 805
offered at the hearing. There is no means of assessing related
costs to Busch. The Commission’s assigned error on cross-
appeal is without merit.
CONCLUSION
We conclude that none of Busch’s assignments of error
have merit. The record reflects that the Commission acted
within its jurisdiction in affirming Busch’s termination from
his job, and its decision was supported by sufficient, relevant
evidence. We find that the Commission’s cross-appeal is also
without merit.
Affirmed.
City of Beatrice, State of Nebraska, appellee,
v.
Daniel A. Meints, appellant.
___ N.W.2d ___
Filed March 11, 2014. Nos. A-12-1083 through A-12-1107.
1. Constitutional Law: Search and Seizure: Appeal and Error. Whether histori-
cal facts trigger or violate Fourth Amendment protections is a question of law
that an appellate court reviews independently of the trial court’s determination.
2. Statutes: Judgments: Appeal and Error. The meaning of a statute is a question
of law, on which an appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court below.
3. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitu-
tionality and construction of a statute are questions of law, regarding which an
appellate court is obligated to reach conclusions independent of those reached by
the court below.
4. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard 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.
5. Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless
searches and seizures are per se unreasonable under the Fourth Amendment, sub-
ject only to a few specifically established and well-delineated exceptions, which
must be strictly confined by their justifications.
6. Warrantless Searches: Search and Seizure: Proof. In the case of a search and
seizure conducted without a warrant, the State has the burden of showing the
applicability of one or more of the exceptions to the warrant requirement.
Decisions of the Nebraska Court of Appeals
806 21 NEBRASKA APPELLATE REPORTS
7. Warrantless Searches. The warrantless search exceptions recognized by the
Nebraska Supreme Court include (1) searches undertaken with consent or
with probable cause, (2) searches under exigent circumstances, (3) inventory
searches, (4) searches of evidence in plain view, and (5) searches incident to a
valid arrest.
8. Police Officers and Sheriffs: Search and Seizure: Evidence. A warrantless
seizure is justified under the plain view doctrine if (1) a law enforcement officer
has a legal right to be in the place from which the object subject to the seizure
could be plainly viewed, (2) the seized object’s incriminating nature is imme-
diately apparent, and (3) the officer has a lawful right of access to the seized
object itself.
9. Constitutional Law: Warrantless Searches: Search and Seizure: Police
Officers and Sheriffs. The Fourth Amendment’s prohibition against unreason-
able searches and seizures generally requires a law enforcement officer to have
probable cause to conduct a warrantless search without consent.
10. Search and Seizure: Probable Cause. Probable cause to search requires that the
known facts and circumstances are sufficient to warrant a person of reasonable
prudence in the belief that contraband or evidence of a crime will be found.
11. Judgments: Appeal and Error. Where the record adequately demonstrates that
the decision of the trial court is correct, although such correctness is based on a
ground or reason different from that assigned by the trial court, an appellate court
will affirm.
12. Appeal and Error. An appellate court is not obligated to engage in an analysis
that is not necessary to adjudicate the case and controversy before it.
13. Ordinances: Presumptions. All ordinances are presumed to be valid.
14. Municipal Corporations: Ordinances: Statutes. The power of a municipality to
enact and enforce any ordinance must be authorized by state statute.
15. ____: ____: ____. Where there is a direct conflict between a municipal ordinance
and a state statute, the statute is the superior law. However, if the ordinance and
statute in question are not contradictory and can coexist, then both are valid.
16. Municipal Corporations: Courts. The general rule is that courts should give
great deference to a city’s determination of which laws should be enacted for the
welfare of the people.
17. Statutes. The meaning of a statute is a question of law, and statutory language is
given its plain and ordinary meaning.
18. Criminal Law: Statutes. Whether a particular course of conduct involves one or
more distinct offenses under a statute depends on how a legislature has defined
the allowable unit of prosecution.
19. Appeal and Error. To be considered by an appellate court, an alleged error must
be both specifically assigned and specifically argued in the brief of the party
asserting the error.
Appeals from the District Court for Gage County, Daniel
E. Bryan, Jr., Judge, on appeal thereto from the County Court
for Gage County, Steven B. Timm, Judge. Judgment of District
Court affirmed.
Decisions of the Nebraska Court of Appeals
CITY OF BEATRICE v. MEINTS 807
Cite as 21 Neb. Ct. App. 805
Terry K. Barber, of Barber & Barber, P.C., L.L.O., for
appellant.
Gregory A. Butcher, Beatrice City Attorney, for appellee.
Moore, Pirtle, and Bishop, Judges.
Pirtle, Judge.
INTRODUCTION
Daniel A. Meints appeals the order of the district court for
Gage County affirming in part and reversing in part an order of
the Gage County Court.
BACKGROUND
Meints was charged on June 21, 2011, with 12 separate
counts of violating Beatrice City Code § 16-623 (2002) on
25 separate dates in the months of May and June 2011. On
September 19, Meints filed a “corrected” motion to suppress
evidence, and the matter was heard in the county court for
Gage County on October 3. All matters were consolidated for
the purpose of the hearing.
Steve Printy, a code enforcement officer for the City of
Beatrice, testified. One of his job requirements is to look for
or monitor unregistered motor vehicles. Printy testified that on
March 15, 2011, he observed Meints’ Beatrice property from
the public street. He found motor vehicles with expired license
plates, motor vehicles with no license plates, and motor vehi-
cles whose engines, wheels, or parts had been removed, altered,
damaged, or otherwise allowed to deteriorate so that the motor
vehicle was not capable of being driven on its own power. He
did not observe a residence, fencing, or closed buildings on
March 15. He took pictures of the property from the public
street, the adjacent alley, and the adjacent property not owned
by Meints. Printy did not enter Meints’ property and did not
seize any objects or evidence. Printy repeated this process on
15 separate dates between May 23 and June 17. Printy testified
that the purpose for the visits was to observe the property and
reinspect for junk or unlicensed motor vehicles.
Joe McCormick of the Beatrice Police Department testi-
fied that on March 15, 2011, he was dispatched to Meints’
Decisions of the Nebraska Court of Appeals
808 21 NEBRASKA APPELLATE REPORTS
Beatrice property and observed motor vehicles with expired
license plates, vehicles with no license plates, and vehicles
in an inoperable condition. McCormick testified he made
these observations from the public street and did not observe
a residence, fencing, closed buildings, or “no trespassing”
signs. McCormick testified that he believed Meints was in
violation of the Beatrice City Code regarding unregistered
motor vehicles and that he had probable cause to enter the
property. He entered the property, took photographs of the
motor vehicles at issue, and recorded vehicle identifica-
tion numbers (VIN numbers). McCormick did not enter any
vehicles, open any car doors, enter any structures, move any
items, or seize any objects while obtaining VIN numbers and
taking photographs.
McCormick returned to Meints’ Beatrice property on May
23, 2011, and made similar observations. He testified that
the condition of the property was the same except that there
was a “no trespassing” sign attached to a tree. Meints was
present and informed McCormick he did not want him on his
property. On that day also, McCormick believed Meints was
in violation of the city code and he had probable cause to
enter. He entered the property to take photographs and record
VIN numbers to determine whether there were violations of
the city code. Again, McCormick did not enter any vehicles,
open any car doors, enter any structures, move any items,
or seize any objects while obtaining VIN numbers and tak-
ing photographs. McCormick issued a citation to Meints for
violations on May 23 and subsequently repeated this process,
with the same observations for probable cause and further
citations issued, on 10 additional dates between May 23 and
June 16.
Meints cross-examined Printy and McCormick and offered
evidence, including a copy of a discovery response by Meints
containing McCormick’s police reports from May 15 to 23,
2011, photographs of the motor vehicles in question, and reg-
istration printouts for the vehicles based upon VIN numbers.
The trial court overruled Meints’ motion to suppress after the
submission of briefs by the parties.
Decisions of the Nebraska Court of Appeals
CITY OF BEATRICE v. MEINTS 809
Cite as 21 Neb. Ct. App. 805
On January 18, 2012, Meints filed a “Motion for Leave to
Withdraw Plea,” a “Motion to Quash,” and a “Plea in Bar,”
2 days prior to trial. The trial court overruled the motion for
leave to withdraw on January 20, noting Meints had ample
opportunity to raise the issue prior to trial.
At trial on January 20, 2012, McCormick and Printy both
testified, as did several other officers. McCormick testi-
fied that on March 15, 2011, he was dispatched to Meints’
Beatrice property and there witnessed vehicles with expired
or no license plates. He believed that he had probable cause
to obtain VIN numbers which were in plain view, and he
ran those numbers through the “NCJIS” computer system of
“Beatrice communications” to review Department of Motor
Vehicles records. The court received an exhibit which con-
tained an image log and photographs taken by McCormick
on March 15. McCormick returned to the property on May
23, 24, and 27 through 29 and June 6, 7, 10 through 12,
and 16 to inspect the property, take photographs, and record
VIN numbers of the 10 vehicles in continual violation of the
city code.
Printy testified he observed the same 10 vehicles in viola-
tion on May 23 through 27 and 31, 2011, as well as June 3, 6
through 10, and 15 through 17. Two other officers made similar
observations on June 8 and 9 and on May 25, 26, 30, and 31,
as well as June 3, 4, 13, and 14, respectively.
On March 30, 2012, the trial court found Meints guilty on
all counts across all dates and overruled Meints’ motion to
quash and plea in bar. Meints appealed this matter to the dis-
trict court for Gage County on May 16. The matter was heard
in the district court on September 6. Evidence was adduced,
exhibits were offered and received, and arguments were sub-
mitted by brief. On October 19, the district court affirmed
the trial court’s decisions on counts I through X across all 25
dates. The district court reversed the trial court’s findings of
guilt as to counts XI and XII across all 25 dates and ordered
that the case be remanded to the county court with directions
to dismiss on those latter two counts. Meints appealed the deci-
sion of the district court on November 19.
Decisions of the Nebraska Court of Appeals
810 21 NEBRASKA APPELLATE REPORTS
The 25 cases were consolidated at trial and on appeal to the
district court. Cases Nos. A-12-1083 through A-12-1107 are
also consolidated for purposes of this appeal.
ASSIGNMENTS OF ERROR
Meints asserts the court erred in overruling Meints’ suppres-
sion motion, finding that the city’s proof was sufficient to find
him guilty, failing to find that § 16-623 of the Beatrice City
Code is invalid, and finding that Meints’ multiple prosecutions
under the city code did not violate the Double Jeopardy Clause
of the Fifth Amendment to the U.S. Constitution.
Meints also asserts the court erred in overruling Meints’ plea
in bar, overruling Meints’ motion to quash, overruling Meints’
motion for leave to withdraw his earlier plea, and not find-
ing that § 16-623 is unconstitutional. However, these issues
were not addressed in Meints’ brief and will not be addressed
on appeal. See Wulf v. Kunnath, 285 Neb. 472, 827 N.W.2d
248 (2013).
STANDARD OF REVIEW
[1] An appellate court applies a two-part standard of review
to suppression issues. With regard to historical facts, the court
reviews the trial court’s findings for clear error. “[W]hether
those facts trigger or violate Fourth Amendment protections
is a question of law that we review independently of the trial
court’s determination.” State v. Bromm, 285 Neb. 193, 197, 826
N.W.2d 270, 274 (2013).
[2] The meaning of a statute is a question of law, on which
an appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court
below. State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696
(2012), cert. denied ___ U.S. ___, 133 S. Ct. 2359, 185 L. Ed.
2d 1082 (2013).
[3] The constitutionality and construction of a statute are
questions of law, regarding which we are obligated to reach
conclusions independent of those reached by the court below.
See State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
[4] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination
Decisions of the Nebraska Court of Appeals
CITY OF BEATRICE v. MEINTS 811
Cite as 21 Neb. Ct. App. 805
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. State v. Ross, 283 Neb. 742, 811 N.W.2d
298 (2012).
ANALYSIS
Motion to Suppress.
Meints asserts the county court should have granted his
motion to suppress the observations and photographic evidence
collected by the officers on his property. Meints asserts that
he did not give consent for anyone, including code enforce-
ment or police officers, to enter his property and that he had a
reasonable expectation of privacy. He asserts the property con-
taining the motor vehicles was subject to an unlawful search
and seizure. Therefore, he asserts, all photographs and obser-
vations of his property should have been suppressed.
There is no dispute that the officers entered the property
without a warrant to record VIN numbers and take photo-
graphs. The trial court in this case found, and the district court
affirmed, that the warrantless entry and “seizure” of VIN num-
bers were justified under the open fields exception.
The open fields exception states that the special protection
accorded by U.S. Const. Amend. IV to the people in their
“persons, houses, papers, and effects” is not extended to open
fields. Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68
L. Ed. 98 (1924). The U.S. Supreme Court has held that neither
probable cause nor a warrant is required to carry out police
searches of open fields. Oliver v. United States, 466 U.S. 170,
104 S. Ct. 1735, 80 L. Ed. 2d 214 (1984). The Court held that
the touchstone of Fourth Amendment analysis is the question
of whether a person has a constitutionally protected, reason-
able expectation of privacy. Id. The Nebraska Supreme Court
has held that the asserted expectation of privacy in open fields
is not an expectation that society recognizes as reasonable, as
these lands are usually accessible to the public and police in
ways that a home, an office, or a commercial structure would
not be. State v. Havlat, 222 Neb. 554, 385 N.W.2d 436 (1986).
The court in Havlat applied the exception to a warrantless
Decisions of the Nebraska Court of Appeals
812 21 NEBRASKA APPELLATE REPORTS
search of a grain and livestock operation on a fenced property.
In doing so, the court discussed the open fields exception in the
context of rural areas where the cultivation of crops, hunting,
and fishing occur.
Meints argues that the open fields exception is inappli-
cable here because the property in question was located within
the city. Without deciding whether the open fields exception
applies here, we approach this appeal by first examining the
law with regard to warrantless searches and seizures.
[5,6] Warrantless searches and seizures are per se unrea-
sonable under the Fourth Amendment, subject only to a few
specifically established and well-delineated exceptions, which
must be strictly confined by their justifications. State v. Borst,
281 Neb. 217, 795 N.W.2d 262 (2011). In the case of a search
and seizure conducted without a warrant, the State has the bur-
den of showing the applicability of one or more of the excep-
tions to the warrant requirement. Id.
[7] The warrantless search exceptions recognized by the
Nebraska Supreme Court include (1) searches undertaken with
consent or with probable cause, (2) searches under exigent cir-
cumstances, (3) inventory searches, (4) searches of evidence in
plain view, and (5) searches incident to a valid arrest. Id.
The city asserts the search of Meints’ Beatrice property
was appropriate, because the vehicles and license plates were
in plain view and the officers had probable cause to enter
the property.
[8] A warrantless seizure is justified under the plain view
doctrine if (1) a law enforcement officer has a legal right to be
in the place from which the object subject to the seizure could
be plainly viewed, (2) the seized object’s incriminating nature
is immediately apparent, and (3) the officer has a lawful right
of access to the seized object itself. Id.
While the vehicles and some of the license plates were
observable in plain view from the sidewalks where the officers
had a legal right to be, VIN numbers were not. The plain view
doctrine would not justify the recording of VIN numbers and
the taking of photographs, because such were obtained only
after the officers went onto Meints’ property. We therefore turn
to an examination of whether law enforcement in this case
Decisions of the Nebraska Court of Appeals
CITY OF BEATRICE v. MEINTS 813
Cite as 21 Neb. Ct. App. 805
had probable cause to conduct the warrantless search without
Meints’ consent.
[9,10] The Fourth Amendment’s prohibition against unrea-
sonable searches and seizures generally requires a law enforce-
ment officer to have probable cause to conduct a warrantless
search without consent. J.P. v. Millard Public Schools, 285
Neb. 890, 830 N.W.2d 453 (2013), citing State v. Borst, supra.
Probable cause to search requires that the known facts and
circumstances are sufficient to warrant a person of reasonable
prudence in the belief that contraband or evidence of a crime
will be found. State v. Howard, 282 Neb. 352, 803 N.W.2d
450 (2011).
Beatrice City Code § 16-621 (1999) defines a “junked motor
vehicle” as follows:
A motor vehicle on which the engine, wheels or other
parts have been removed, altered, damaged or otherwise
so treated or allowed to deteriorate that the motor vehicle
is incapable of being drawn under its own power. A
motor vehicle which does not have an unexpired license
plate or plates affixed thereto shall be presumed to be a
junked motor vehicle; provided, that such presumption
may be rebutted.
McCormick testified that when he arrived at Meints’
Beatrice property, he stood on a public street. From this loca-
tion, he could observe motor vehicles with expired license
plates, vehicles with no license plates, and vehicles in inoper-
able condition. These vehicles fit the definition in § 16-621 of
junked motor vehicles, and there is a presumption based on
such observations that the property owner was in violation of
the city code. McCormick testified that he believed Meints was
in violation of the Beatrice City Code regarding unregistered
motor vehicles and that he believed he had probable cause to
enter the property to take photographs and record VIN num-
bers of the vehicles, which VIN numbers were to be used to
search for the corresponding records within the Department of
Motor Vehicles’ database to confirm the registration status of
each vehicle.
In light of these facts, and the provisions in the city code, it
was reasonable for McCormick to believe that expired license
Decisions of the Nebraska Court of Appeals
814 21 NEBRASKA APPELLATE REPORTS
plates and the associated VIN numbers on the corresponding
vehicles could be evidence of a crime, therefore affording
him probable cause to lawfully enter the property to record
this information.
McCormick testified that once he entered the property, he
did not enter any vehicles, open any doors, enter any struc-
tures, move any items, or seize any objects while recording
VIN numbers and photographing the property.
[11] Based upon our review of the evidence, we find
McCormick and the Beatrice police officers had a legal right
to be on a public street to observe the vehicles and the associ-
ated license plates. Several vehicles on the property could be
observed from the street and could be presumed to be in vio-
lation of the city code. As stated above, McCormick’s obser-
vations of expired license plates gave him probable cause to
enter the property to record VIN numbers and take additional
photographs to determine whether the photographs and obser-
vations were evidence of a crime; thus, he had a lawful right
of access to the “seized” evidence. We find the county court
properly overruled Meints’ motion to suppress the photographs
and observations of the officers, although for a reason which
differs from that found by the trial court. Where the record
adequately demonstrates that the decision of the trial court
is correct, although such correctness is based on a ground or
reason different from that assigned by the trial court, an appel-
late court will affirm. State v. Huff, 279 Neb. 68, 776 N.W.2d
498 (2009).
[12] Having found that the warrantless search was under-
taken with probable cause, we need not address the lower
courts’ findings that the open fields exception to the prohibi-
tion of warrantless searches and seizures existed in this case.
An appellate court is not obligated to engage in an analysis that
is not necessary to adjudicate the case and controversy before
it. State v. Jimenez, 283 Neb. 95, 808 N.W.2d 352 (2012).
Sufficiency of Evidence.
Meints was charged with violating § 16-623 of the Beatrice
City Code (“[p]arked, junked or unregistered motor vehicles”)
on occasions constituting 12 counts over 25 separate days.
Decisions of the Nebraska Court of Appeals
CITY OF BEATRICE v. MEINTS 815
Cite as 21 Neb. Ct. App. 805
Section 16-623(a) of the city code states, in part:
It shall be unlawful for any person to park, store, leave or
permit the parking, storing or leaving of any junked motor
vehicle, or parts of a motor vehicle, on private property
within the city for a period of time in excess of twenty-
one (21) days. It shall be unlawful for any person in
charge or control of any private property within the city,
whether as owner, tenant, occupant, lessee or otherwise,
to allow any motor vehicle which has been unregistered
for more than twenty-one (21) days to remain upon any
private property. Any motor vehicle allowed to remain on
private property in violation of this subsection shall con-
stitute a nuisance and shall be abated.
Meints asserts the city has not proved beyond a reasonable
doubt that the vehicles were unregistered. He does not chal-
lenge that these were motor vehicles, upon his private property,
all there in excess of the 21-day period, or that they remained
there on 25 separate days after the expiration of the 21-day
period. He also concedes that each vehicle on each date had
either an expired license plate or no license plate at all. While
he concedes the vehicles were not licensed, he asserts that the
charge is lack of registration of the vehicles and that there is no
evidence they were not registered.
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.
State v. Ross, 283 Neb. 742, 811 N.W.2d 298 (2012). The rel-
evant 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
a crime beyond a reasonable doubt. Id.
In addressing this argument, both the county court and the
district court found that the fact that a vehicle does not have
a valid license plate is strong circumstantial evidence that the
vehicle is also unregistered.
The Nebraska Revised Statutes provide that motor vehicle
registration and license plates are regulated by the Motor
Decisions of the Nebraska Court of Appeals
816 21 NEBRASKA APPELLATE REPORTS
Vehicle Registration Act. Neb. Rev. Stat. § 60-389 (Reissue
2010) states that when a person applies for registration of
a motor vehicle, “the department shall, upon registration,
assign to such motor vehicle or trailer a distinctive registra-
tion number in the form of a license plate.” Neb. Rev. Stat.
§ 60-3,100 (Reissue 2010) also states that the Department of
Motor Vehicles shall issue to every person whose motor vehi-
cle or trailer is registered two fully reflectorized license plates
to be displayed on the front and back of each registered motor
vehicle or trailer. The certificate of registration contains the
same registration number denoted on the license plates. Neb.
Rev. Stat. § 60-390 (Reissue 2010).
Several officers testified that they observed the lack of up-
to-date license plates and that from that information, one could
infer that the relevant vehicles on Meints’ Beatrice property
were unregistered. In addition, Beatrice police officers testified
that they obtained VIN numbers for the vehicles observed on
the property and searched a computer system for corresponding
Department of Motor Vehicles records. Some of the vehicles
were unregistered, some of them did not have identifiable VIN
numbers, and some VIN numbers did not produce records
within the system to obtain registration records.
The lack of up-to-date license plates, taken together with
the condition of the vehicles, the lack of information in the
Department of Motor Vehicles system, and the photographs
and observations of the police officers on March 15, 2011, and
continuing through May and June 2011, are sufficient for a
rational trier of fact to find the essential elements of the crimes
charged beyond a reasonable doubt. The district court did not
err in affirming the decision of the trial court.
Validity of § 16-623.
Meints alleges the city code is invalid because it criminal-
izes conduct which is not criminal under the Nebraska Revised
Statutes. He argues that the time limit in the state statute
regulating unregistered vehicles is 30 days, that the limit in the
Beatrice City Code regulating the same is 21 days, and that
there is therefore an irreconcilable conflict which makes the
city ordinance unenforceable.
Decisions of the Nebraska Court of Appeals
CITY OF BEATRICE v. MEINTS 817
Cite as 21 Neb. Ct. App. 805
[13-15] All ordinances are presumed to be valid. Village of
Winside v. Jackson, 250 Neb. 851, 553 N.W.2d 476 (1996).
However, the power of a municipality to enact and enforce
any ordinance must be authorized by state statute. State v.
Loyd, 265 Neb. 232, 655 N.W.2d 703 (2003). Where there
is a direct conflict between a municipal ordinance and a
state statute, the statute is the superior law. See id. However,
if the ordinance and statute in question are not contradic-
tory and can coexist, then both are valid. Jacobson v. Solid
Waste Agency of Northwest Neb., 264 Neb. 961, 653 N.W.2d
482 (2002).
As it is written, § 16-623 of the Beatrice City Code prohibits
the storage of junked or unregistered vehicles for more than 21
days and labels any vehicle so stored as a nuisance.
Meints asserts the city’s ordinance reflecting a 21-day period
for storage of unregistered motor vehicles is in conflict with
the Nebraska Revised Statutes. He cites to five Nebraska stat-
utes which permit the operation, towing, or parking of motor
vehicles or trailers without registration for up to 30 days: Neb.
Rev. Stat. §§ 60-362 (Reissue 2010), “[r]egistration required;
presumption”; 60-365 (Reissue 2010), “[o]peration of vehicle
without registration; limitation; proof of ownership”; 60-366
(Reissue 2010), “[n]onresident owner; registration; when; reci-
procity”; 60-376 (Reissue 2010), “[o]peration of vehicle with-
out registration; In Transit sticker; records required; proof
of ownership”; and 60-3,164 (Reissue 2010), “[o]peration or
parking of unregistered vehicle; penalty.”
Meints fails to take into account that §§ 60-362, 60-365,
and 60-3,164 apply to motor vehicles or trailers operated,
parked, or towed on the highways of this state; § 60-366
governs registration requirements for a narrow group of non-
residents of this state; and § 60-376 governs the operation of
a vehicle without registration while the vehicle is in transit.
The city ordinance is not in conflict with the Nebraska stat-
utes cited by Meints, because the ordinance is specifically
geared toward vehicles parked, stored, or left on private
property within the city, not on public roads within the state.
As the city ordinance is not in conflict with the statutes, they
may coexist.
Decisions of the Nebraska Court of Appeals
818 21 NEBRASKA APPELLATE REPORTS
Meints also alleges the ordinance criminalizes that which
is not criminal under the Nebraska Revised Statutes. Meints
concedes that the city has discretion to determine what con-
stitutes a nuisance, but asserts that the city may not categorize
something that is lawful under the Nebraska statutes to be a
nuisance in Beatrice.
[16] The city is authorized by Neb. Rev. Stat. § 18-1720
(Reissue 2012) to “define, regulate, suppress and prevent
nuisances, and to declare what shall constitute a nuisance,
and to abate and remove the same.” The Nebraska statutes
do not address or regulate the placement or open storage of
unlicensed, unregistered, or junk motor vehicles upon private
property. This falls within the discretion of the city, as autho-
rized by § 18-1720. In addition, the district court also notes
that a similar ordinance regulating and prohibiting junked
vehicles was upheld by the Nebraska Supreme Court in Village
of Brady v. Melcher, 243 Neb. 728, 502 N.W.2d 458 (1993).
The general rule is that courts should give great deference to
a city’s determination of which laws should be enacted for the
welfare of the people. See Giger v. City of Omaha, 232 Neb.
676, 442 N.W.2d 182 (1989).
For the reasons stated above, we find that this assignment of
error is without merit.
Double Jeopardy.
Meints asserts his multiple prosecutions for violations of
§ 16-623 of the Beatrice City Code violate the Double Jeopardy
Clause of the Fifth Amendment to the U.S. Constitution.
Meints questions the city’s authority to pass an ordinance
which allows a separate offense for each day a violation
occurs, but cites no authority for this assertion.
As we noted, previously, § 18-1720 grants all cities in
Nebraska the power and authority to define, regulate, suppress,
and prevent nuisances; to declare what shall constitute a nui-
sance; and to abate and remove the same. Every city and vil-
lage is authorized to exercise such power and authority within
its zoning jurisdiction.
Decisions of the Nebraska Court of Appeals
CITY OF BEATRICE v. MEINTS 819
Cite as 21 Neb. Ct. App. 805
[17] The meaning of a statute is a question of law, and
statutory language is given its plain and ordinary meaning. See
State v. Magallanes, 284 Neb. 871, 824 N.W.2d 696 (2012).
An appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and
unambiguous. Id.
The plain meaning of § 18-1720 is that the Legislature gives
permission to each city to define, regulate, suppress, and pre-
vent nuisances as they are defined by each city. Beatrice chose
to define a nuisance as one existing on each separate day in
excess of a 21-day period, and its city code stated that each
day’s violation thereof is a distinct offense.
We note that Meints was on notice that the vehicles on his
property constituted a violation of the city code. Code enforce-
ment officer Printy and Beatrice police officers visited Meints’
Beatrice property on March 15, 2011. On March 23, Printy
sent Meints a “Notice to Remove” letter informing him that he
was in violation of the Beatrice City Code. The letter contains
the language of § 16-623(a) and the definition in § 16-621 of a
“junked motor vehicle” discussed above. The letter concludes
with a warning, stating:
If the vehicle is not removed by the date specified . . .
a citation will be issued requiring you to appear in court.
The penalty for this offense is a fine of a minimum of
$100 up to a maximum fine of $500.00 per vehicle. A dif-
ferent citation may be issued for each day that the viola-
tion continues.
Beatrice police returned to the property on May 23, 2011,
well after the designated 21 days had passed, and the officers
found that the property remained in the same condition. After
ascertaining that the same vehicles were present, McCormick
issued a citation. This process continued on 10 additional dates
through June 16.
Meints had ample notice that he was in violation of the
city code, and he was informed that each day could, and often
did in fact, result in another citation. Meints was aware that
Printy visited the property and that Beatrice police officers
Decisions of the Nebraska Court of Appeals
820 21 NEBRASKA APPELLATE REPORTS
entered the property and issued citations. Meints was given
over 2 months to abate the cited nuisance, and he failed to
do so.
Meints asserts acts constituting a course of conduct are not
punishable separately if the Legislature intends to punish the
course of conduct. See U.S. v. Horodner, 993 F.2d 191 (9th
Cir. 1993). He cites to U.S. v. Jones, 403 F.3d 604 (8th Cir.
2005), which states the court’s belief that Congress intended
the crime of possession to refer to a course of conduct, rather
than individual acts of dominion, and its ultimate conclusion
that the continuous possession of the same firearm constitutes
a single offense.
[18] The Nebraska Supreme Court has stated that whether
a particular course of conduct involves one or more distinct
offenses under a statute depends on how a legislature has
defined the allowable unit of prosecution. State v. Al-Sayagh,
268 Neb. 913, 689 N.W.2d 587 (2004). The Nebraska Supreme
Court considered whether two separate counts of possession
of the same firearm were two distinct violations, based on the
statutory language, in State v. Williams, 211 Neb. 650, 319
N.W.2d 748 (1982). The court stated:
Neither the statute itself nor the history leading to its
enactment gives us any indication as to whether the
Legislature intended that each day constitute a separate
offense or whether the offense is one which is considered
in the law as a continuing offense. Certainly it would
have been easy enough for the Legislature to have so pro-
vided if that was its intent.
State v. Williams, 211 Neb. at 655, 319 N.W.2d at 751.
In this case, the intent of the drafters of the Beatrice City
Code is clear, and the “allowable unit of prosecution” is clearly
defined. The ordinance explicitly states that each day a viola-
tion of any of its provisions continues shall constitute a distinct
offense and be punishable as such.
Further, multiple sections of the Nebraska Revised
Statutes contain provisions detailing separate offenses for
each day upon which they continue. The following are a
few examples: Neb. Rev. Stat. §§ 12-512.08 and 12-618
(Reissue 2012) (perpetual care), 71-5733(3) (Reissue 2009)
Decisions of the Nebraska Court of Appeals
CITY OF BEATRICE v. MEINTS 821
Cite as 21 Neb. Ct. App. 805
(Nebraska Clean Indoor Air Act), 46-266 (Reissue 2010) (irri-
gation works), 60-6,373 (Reissue 2010) (vehicle emissions),
71-6329 and 71-6331 (Reissue 2009) (Residential Lead-Based
Paint Professions Practice Act), and 71-6312 (Reissue 2009)
(Asbestos Control Act). As the trial court pointed out, if such
provisions were not in place, the practical effect would be that
one who once pays a fine has been granted license to maintain
a perpetual nuisance.
Meints also asserts the Double Jeopardy Clause was vio-
lated by citing him for multiple vehicles based upon identi-
cal 21-day periods without registration. The language of the
city code states, “Any motor vehicle allowed to remain on
private property in violation of [§ 16-623(a)] shall constitute
a nuisance and shall be abated.” By stating that any vehicle
so stored constitutes a nuisance, it appears that the draft-
ers intended to allow each nuisance to be separately cited
and abated.
We find that Meints’ prosecution for the continual violation
of the city code by storing multiple vehicles beyond the 21-day
period specified in the city code did not violate the Double
Jeopardy Clause of the Fifth Amendment.
Remaining Assignments of Error.
[19] To be considered by an appellate court, an alleged error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error. Wulf v. Kunnath, 285
Neb. 472, 827 N.W.2d 248 (2013).
Meints also asserts the trial court erred in overruling Meints’
plea in bar, overruling Meints’ motion to quash, overruling
Meints’ motion for leave to withdraw his earlier plea, and not
finding that § 16-623 is unconstitutional. These errors were
assigned but not argued in Meints’ brief; therefore, we do not
consider these errors upon appeal.
CONCLUSION
Upon our review, we find that the district court did not err
in affirming the decision of the trial court finding Meints guilty
of 10 counts of violating § 16-623 of the Beatrice City Code
on 25 separate days. We find that Meints’ Fourth Amendment
Decisions of the Nebraska Court of Appeals
822 21 NEBRASKA APPELLATE REPORTS
rights were not violated and that there was sufficient evidence
to support the trial court’s finding that Meints was guilty
on such counts beyond a reasonable doubt. We find that the
Beatrice City Code does not contradict state law and does not
criminalize conduct which is lawful under any state statute.
We also find that multiple prosecutions for the violations of
the Beatrice City Code do not violate the Double Jeopardy
Clause of the Fifth Amendment. We affirm the decision of the
district court.
Affirmed.
Stacy Bolles, wife of Gregory Bolles, deceased,
on her behalf and on behalf of others eligible
for benefits pursuant to Neb. R ev. Stat.
§ 48-122 et seq., appellee, v. Midwest
Sheet Metal Co., Inc., appellant.
___ N.W.2d ___
Filed March 11, 2014. No. A-13-203.
1. Workers’ Compensation: Judgments: Evidence: Appeal and Error.
Under Neb. Rev. Stat. § 48-185 (Reissue 2010), a judgment of the Workers’
Compensation Court may be modified, reversed, or set aside based on the ground
that there is not sufficient competent evidence in the record to warrant the making
of the order, judgment, or award.
2. Workers’ Compensation: Appeal and Error. In determining whether to affirm,
modify, reverse, or set aside a judgment of the Workers’ Compensation Court,
an appellate court will not disturb the findings of fact of the trial judge unless
clearly wrong.
3. Workers’ Compensation: Evidence: Appeal and Error. In testing the suf-
ficiency of the evidence to support the findings of fact by the Workers’
Compensation Court, the evidence is considered in the light most favorable to
the successful party, every controverted fact is resolved in favor of the successful
party, and the successful party has the benefit of every inference that is reason-
ably deducible from the evidence.
4. Workers’ Compensation: Judgments: Evidence: Appeal and Error. Workers’
Comp. Ct. R. of Proc. 11(A) (2011) requires the Workers’ Compensation Court to
write decisions that provide the basis for a meaningful appellate review.
5. ____: ____: ____: ____. Workers’ Comp. Ct. R. of Proc. 11(A) (2011) requires
the judge to specify the evidence upon which the judge relies.