State v. King

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
STATE V. KING
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
STATE OF NEBRASKA, APPELLEE,
V.
DEVONTE M. KING, APPELLANT.
Filed March 28, 2023. No. A-22-567.
Appeal from the District Court for Lincoln County: PATRICK M. HENG, Judge. Affirmed.
Devonte M. King, pro se.
Douglas J. Peterson, Attorney General, and Austin N. Relph for appellee.
RIEDMANN, BISHOP, and ARTERBURN, Judges.
BISHOP, Judge.
INTRODUCTION
Devonte M. King appeals from the order of the Lincoln County District Court affirming
his convictions and sentences in the county court, which arose from King driving without a driver’s
license, proof of insurance, or proper license plates. King contends his constitutional rights were
violated as a result of his convictions. He claims he is not subject to Nebraska statutes regarding
the operation of a motor vehicle on public highways and further argues that the statutes under
which he was convicted are unconstitutional. We recently decided a case involving King’s similar
convictions in Hamilton County, Nebraska, and many of the arguments he made on appeal in that
case, he makes again here. See State v. King, No. A-21-872, 2022 WL 3036180 (Neb. App. Aug.
2, 2022) (selected for posting to court website). As we did previously, we affirm King’s
convictions and sentences.
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BACKGROUND
An amended complaint was filed on November 2, 2021, in the county court for Lincoln
County charging King with “No Proof of Insurance” pursuant to Neb. Rev. Stat. § 60-3,167
(Reissue 2021), a Class II misdemeanor; “No Operator’s License” pursuant to Neb. Rev. Stat.
§ 60-484 (Reissue 2021), a Class III misdemeanor; and “Unlawful or Fictitious Plates” pursuant
to Neb. Rev. Stat. § 60-399(1) (Reissue 2021), a Class III misdemeanor. All charges related to
King’s operation of a motor vehicle upon a street, alley, or public roadway or highway in Lincoln
County, Nebraska, on or about November 1, 2021.
A bench trial took place on March 24, 2022, at which time the county court also took up a
motion to dismiss filed by King. King appeared pro se, choosing not to have an attorney; however,
stand-by counsel was available to him. After considering King’s written arguments and those made
by the State, the court overruled King’s motion and the case proceeded to trial. Officer Alexander
Parker from the North Platte Police Department testified that on November 1, 2021, at
approximately 8:20 p.m., he saw a vehicle make an improper turn and then he also noticed a sign
or placard that said “Private Property” where the vehicle’s license plate should have been. After
initiating a traffic stop, Officer Parker asked King for his name and license, to which King
responded that he was not going to give him any documents. King was arrested for “obstruction.”
Once placed in handcuffs, King started getting “mouthy,” “acting very confrontational, . . .
verbally confrontational.” Once at the detention center, King’s identity was determined by “people
at the jail” and with jail records. According to “NCJIS records,” there was no active insurance on
King’s vehicle and King did not have an active driver’s license. Officer Parker also confirmed that
there were “placards on the vehicle in place of a state-issued license plate.”
King informed the county court that he had “no evidence,” he did “nothing wrong,” and
“[t]here’s nothing to prove.” King further indicated that “[e]verything is in writing.” “But, about
the fake license plate, . . . it’s just a sticker . . . [and] that’s freedom of speech.” The court proceeded
to find King guilty of all three charges and sentenced King to pay fines of $200 (no proof of
insurance), $75 (no operator’s license), and $50 (fictitious plates), and he was given 60 days to
pay. A written order consistent with the court’s orally pronounced findings and sentences was
entered the same day.
On April 7, 2022, King appealed to the district court. In his statement of errors filed on
April 19, he claimed that the “state of Nebraska and its employees are infringing on [his] liberty
and religious beliefs to be free. They are doing so by way of imprisonment and fines for not being
a participant and contracting with the state’s motor vehicle program.” He asserted that “[a]ll of the
statutes infringe and deny [him his] right to liberty and the pursuit of happiness, as well as [his]
right to own and acquire private property”; that his “Right to liberty and religion of freedom
supersedes the State and its employees’ powers to imprison and force license taxes on [him] and
[his] private property via drivers [sic] license and license plate registration”; and “Everything the
people own does not have to be commercialized and taxed by the government.” He asserted that
he did “nothing wrong,” that “[a]ll taxes are voluntary,” and that “Nebraska and its employees are
going beyond the Federal and State constitutional limitations, by forcing people to be tax slaves.”
He claimed he did not reside in any state, was not a resident or inhabitant, and was “a free and
independent man” whose liberty was “protected and guaranteed by various constitutions.” He
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claimed that he did not “consent to participation in the DMV program,” and that “[i]mprisoning
[him] for not paying the state and DMV taxes is slavery.” King included citations to the U.S. Code
(definition of “motor vehicle” and “used for commercial purposes”), the U.S. Constitution, U.S.
Supreme Court cases, and the Nebraska Constitution.
A hearing was held before the district court on July 11, 2022. King appeared pro se (with
stand-by counsel); he presented no evidence and made no arguments to the court. He informed the
court that he had filed “paperwork” for the court to review.
The State argued that there was sufficient evidence presented for all three of King’s
convictions. The State noted that King’s statement of errors is “a mixed bag of Federal Code as
well as [s]tate statutes, constitution” and that “[t]his is a prosecution under the law of the State of
Nebraska, not under federal [law] that the US Code would apply to.” The State then addressed
King’s argument that state statutes regulating the use of a motor vehicle are unconstitutional,
stating that such statutes fall under “a public need exception” and are necessary to ensure “that the
vehicles are safe, that the operator of that vehicle is properly trained,” and “in the event that the
operator of that vehicle is involved in an accident, whether negligently or not, that the automobile
is properly insured to cover any costs of any negligence from the operator.” The district court took
take the matter under advisement.
On July 25, 2022, the district court entered an order affirming the convictions and sentences
of the county court. The district court took judicial notice of the county court transcript, King’s
statement of errors, King’s affidavits, the county court bill of exceptions, and two documents filed
by King on July 11: a “Revocable Trust Declaration” and a “Certification of Voluntary Surrender
of License” (signed by King on July 27, 2021). It found that it was “clear that the State proved
each of the Counts 1, 2 and 3 beyond a reasonable doubt” and noted that, although King appeared
pro se at trial, he had “stand-by counsel during the proceedings.” It acknowledged that King’s
position at trial and on appeal was that “the State or Department of Motor Vehicles have no
jurisdiction over him as a private citizen owning a private automobile”; that “the statutes relied
upon by the State in this matter deprive [King] of his ‘life, liberty or property without due process
of law’”; and that “the State cannot require him to obtain a [driver’s] license or to register his
automobile.”
The district court found “that the record does not show that there was an abuse of discretion
on the part of the county court,” and that “the county court’s decision conforms with the law, is
supported by competent evidence and is neither arbitrary, capricious nor unreasonable, and the
fines imposed were within the statutory limits.” The district court affirmed the judgment of the
county court and stated that King’s “appeal is denied.”
King now appeals the district court’s decision.
ASSIGNMENTS OF ERROR
King, pro se, raises allegations that his constitutional rights were violated and that the
Nebraska statutes regulating the use of motor vehicles do not apply to him and are unconstitutional.
We note that King’s brief does not comply with appellate court rules in that it does not include a
separate assignments of error section as mandated by Neb. Ct. R. § 2-109(D) (rev. 2022). His brief
primarily consists of numbered citations to various United States Supreme Court cases, the U.S.
Constitution, and the Nebraska Constitution. While his brief contains a separate “Argument”
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section, King intersperses throughout his brief various arguments and assertions that his
constitutional rights were violated. Depending on the particulars 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, or declining to conduct any review at all. Great Northern Ins. Co. v. Transit
Auth. of Omaha, 308 Neb. 916, 958 N.W.2d 378 (2021), disapproved on other grounds, Clark v.
Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022). In following the rules promulgated by
the Nebraska Supreme Court, pro se litigants are held to the same standards as a litigant represented
by counsel. See Friedman v. Friedman, 290 Neb. 973, 863 N.W.2d 153 (2015). Due to King’s
failure to comply with the formatting requirements for an appellate brief, we proceed to review the
record for plain error. Our references to specific pages of King’s brief are based on the page
number that would be associated with the page had the brief’s pages been properly numbered,
which they were not.
STANDARD OF REVIEW
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. State v. Collins, 307 Neb. 581, 950 N.W.2d 89 (2020). Both the district court
and a higher appellate court generally review appeals from the county court for error appearing on
the record. Id. When reviewing a judgment for errors appearing on the record, an appellate court’s
inquiry is whether the decision conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable. Id. When deciding appeals from criminal
convictions in county court, we apply the same standards of review that we apply to decide appeals
from criminal convictions in district court. Id.Plain error is error plainly evident from the record and of such a nature that to leave it
uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).
ANALYSIS
King’s previous convictions in Hamilton County are nearly identical to those in the present
case, and King raised similar arguments on appeal in that case as he does again here. See State v.
King, No. A-21-872, 2022 WL 3036180 (Neb. App. Aug. 2, 2022) (selected for posting to court
website). In his previous appeal, King was convicted of driving without a driver’s license, vehicle
registration, or proof of insurance, and he argued on appeal that “Nebraska law regulating the
operation of a motor vehicle on its public highways is not applicable to him, as he was not ‘engaged
in commercial activity.’” Id. at *3. He claimed that “the state cannot ‘constitutionally deny [his]
right to use the interstate-highway unless there is iron clad proof [he] was engaged in commercial
activity’ and that the state may not ‘impose a charge for the enjoyment of a right granted by the
federal constitution.’” Id. He also argued that he was “deprived of his ‘Right to enjoyment of Life
and Liberty.’” Id.
Here, King argues that “[N]ebraska continues to deprive [him] of life[,] liberty[,] and
property under the guise of commercial activity and the false legal presumption that [he is] a
resident or US citizen.” Brief for appellant at 3. He claims that he was “imprisoned for over 100
days, and had [his] property stolen, all under the guise of commercial activity . . . and [he was a]
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US citizen under voluntary servitude.” Id. at 7. He states that he is “not a driver” and he “do[es]
not operate or drive a motor vehicle in a commercial capacity.” Id. He further claims he has “the
right and liberty to acquire private property and use it as [he] choose[s], including moving from
point A to point B” and that “[i]t is unconstitutional to deprive [him] of the right to do so.” Id.
Like he did in his previous appeal, he argues that the State “may not impose a charge for
the enjoyment of a right granted by the Federal Constitution.” Brief for appellant at 4. He claims
that “[a]ll statutes are repugnant to the U.S. Constitution,” the state “shall not deny, infringe or
punish [him] for the enjoyment of inherent and inalienable liberty rights,” and the State may not
“turn rights into a privilege and force license, tax, and DMV contracts.” Id. at 2.
As we found in King’s previous appeal, these arguments are without merit. The United
States Supreme Court has upheld state statutory schemes requiring individuals to obtain licenses
and register their vehicles before legally being able to use their vehicles on state highways. See
Hendrick v. Maryland, 235 U.S. 610, 35 S. Ct. 140, 59 L. Ed. 385 (1915) (in absence of national
legislation, state may rightfully prescribe uniform regulations necessary for public safety and order
in respect to operation upon its highways of all motor vehicles--those moving in interstate
commerce as well as others; such regulations may include requiring registration of such vehicles
and licensing of their drivers). The Nebraska Supreme Court has similarly upheld the applicability
of licensing and registration requirements pursuant to Nebraska statutes. See, e.g., State v. Meints,
223 Neb. 199, 388 N.W.2d 813 (1986) (contention that driving of motor vehicle is activity which
is not subject to regulation by requiring that driver be licensed is without merit); Peterson v.
Department of Public Works, 120 Neb. 517, 234 N.W. 95 (1931) (state may exact compensation
in form of licensing and registration fees for use of public highways by motor vehicle).
To the extent King claims that Nebraska’s statutory scheme imposes an impermissible
charge on the exercise of his constitutional rights, the Nebraska Supreme Court has observed that
such statutes do not “directly interfere[] with the rights of citizens of the United States to pass
through the state.” Peterson v. Department of Public Works, 120 Neb. at 522, 234 N.W. at 97.
Rather, the statutes “attempt[] to regulate the operation of dangerous machines [in the form of
motor vehicles] on the highways, and to charge for the use of valuable facilities.” Id. It thus follows
that Nebraska’s licensing and registration requirements do not charge King to exercise his
constitutional right to interstate travel; rather, the statutes charge King for the operation of a motor
vehicle on public highways. See id. In light of this precedent, King’s argument that he is not subject
to Nebraska’s licensing and registration requirements fails.
King does not dispute that he was operating a motor vehicle without a driver’s license,
proof of insurance, or proper license plates. We find no plain error in the district court’s decision
to affirm King’s convictions and sentences.
CONCLUSION
For the reasons set forth above, we affirm the order of the district court affirming King’s
convictions and sentences.
AFFIRMED.
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