State v. Laflin

23 Neb.App. 839

875 N.W.2d 919

State of Nebraska, appellee,

v.Ryan M. Laflin, appellant.

No. A-15-505

Court of Appeals of Nebraska.

Filed March 22, 2016

Lee Timan and Kyle Manley, of Clark & Timan, P.C., for appellant.

Douglas J. Peterson, Attorney General, and George R. Love, Lincoln, for appellee.

Irwin, Pirtle, and Riedmann, Judges.

Irwin, Judge.

I. INTRODUCTION

Ryan M. Laflin appeals his conviction for first-offense driving during revocation. On appeal, Laflin argues that the trial court abused its discretion by bringing the insufficiency of the evidence demonstrating venue to the State's attention and inviting the State to withdraw its rest in order to present additional evidence. Additionally, Laflin argues that the arresting sergeant's testimony should have been suppressed as a result of an unlawful seizure.

Upon our review, we find that the trial court abused its discretion by bringing the insufficiency of the evidence to the State's attention and permitting the State to withdraw its rest. We further conclude that the remaining evidence is insufficient to sustain Laflin's conviction. Accordingly, we reverse, and remand.

II. BACKGROUND

Laflin was charged in the county court for Gage County with driving during revocation, first offense. Before trial, Laflin filed a motion to suppress. In the motion, Laflin argued that he had been unlawfully seized by police and that as a result, the statements and evidence obtained subsequently to his arrest should be suppressed. The court held a hearing on the motion to suppress.

At the suppression hearing, Sgt. Brian Carver of the Beatrice Police Department testified that on October 18, 2014, he was parked "just north of Court Street on 4th Street" in Gage County, writing a parking ticket, when he observed a blue pickup truck drive by and park one car in front of him. Sergeant Carver testified that he knew the blue truck belonged to Laflin. Sergeant Carver testified that he was familiar with Laflin from prior contacts and knew that Laflin's license was on suspended status during the preceding weeks. Sergeant Carver had not confirmed the status of Laflin's license on October 18 when he saw the truck drive past him. Sergeant Carver testified that he observed Laflin to be the driver of the blue truck and that after Laflin had parked and exited the vehicle, Sergeant Carver approached him on foot. According to Sergeant Carver, he did not activate his patrol car's overhead lights or place Laflin under arrest, but, rather, asked to see Laflin's driver's license. Sergeant Carver testified that Laflin was defensive and asked how Sergeant Carver knew his identity. Sergeant Carver replied that he knew the man was Laflin and that he believed Laflin's license was suspended. Laflin produced a state identification card, but not a driver's license. Sergeant Carver testified that he confirmed with police dispatch that Laflin did not have a valid driver's license and then arrested Laflin. The county court denied the motion to suppress, holding that Laflin had not been seized during his interaction with Sergeant Carver, because the encounter was a tier-one citizen-police encounter.

A bench trial was held before the county court on February 10, 2015. At the trial, the State again presented the testimony of Sergeant Carver. Laflin objected to Sergeant Carver's testimony on the same basis as his motion to suppress. The trial court overruled Laflin's objection and allowed Sergeant Carver to testify. Sergeant Carver testified in accordance with his prior testimony at the suppression hearing that he had arrested Laflin on October 18, 2014, after observing him driving a blue truck and after speaking with him. Sergeant Carver stated that he was "parked in the 100 block of North 4th Street writing a parking ticket" when he observed Laflin driving. However, unlike the suppression hearing, the State never asked Sergeant Carver what city or county he was in when he made contact with Laflin. Lastly, the State introduced into evidence a certified copy of Laflin's driving record indicating that Laflin's license was revoked at the time of his arrest. The State then rested its case.

Following the State's rest, Laflin indicated he did not wish to present any evidence. The State waived its closing argument, and Laflin's attorney made a brief closing argument.

The court then stated it was satisfied that Laflin had driven at a time when his license was revoked. The court said, however, that it did not recall any evidence of venue being presented and asked the State whether it had proven venue. The State argued it had presented evidence of venue because Sergeant Carver had testified that he was in the 100 block of North 4th Street when he observed Laflin driving. The court reviewed the record and determined that there was insufficient evidence of venue because Sergeant Carver had not testified to which city or county he was in when he saw Laflin driving. The court then asked the State whether it wished to withdraw its rest and present additional evidence of venue. The State responded that it did. Laflin objected. The court permitted the State to withdraw its rest and recall Sergeant Carver. After being recalled, Sergeant Carver testified that the events to which he had previously testified occurred in Beatrice, Gage County, Nebraska.

The county court found Laflin guilty of first-offense driving during revocation and sentenced him to 60 days in jail with credit for 9 days already served.

Laflin appealed to the district court, arguing that the county court erred in overruling his motion to suppress, allowing Sergeant Carver to testify at trial, allowing the State to reopen the factual record, finding Laflin guilty beyond a reasonable doubt, and imposing an excessive sentence. We surmise from the district court's order that Laflin argued the trial judge abused his discretion by initiating the dialog with the State about venue. Following a hearing on Laflin's appeal, the district court affirmed the county court's conviction and sentence. The district court determined that the county court had properly classified Sergeant Carver's interaction with Laflin as a noncoercive police-citizen encounter, meaning Fourth Amendment protections did not apply. The district court also held that the county court had not abused its discretion in allowing the State to withdraw its rest and present additional evidence, but found that even without the additional evidence, the record was sufficient to support a finding of venue. Finally, the district court determined that Laflin had not received an excessive sentence.

Laflin appeals from the district court's order upholding his conviction.

III. ASSIGNMENTS OF ERROR

Laflin assigns numerous errors on appeal. Restated and renumbered, his assigned errors are that (1) the trial court erred in bringing the insufficiency of the evidence regarding venue to the State's attention and inviting the State to withdraw its rest in order to present additional evidence, (2) there was insufficient evidence of venue submitted, and (3) the trial court erred in failing to suppress Sergeant Carver's testimony as a result of an unlawful seizure.

IV. ANALYSIS

1. WITHDRAWAL OF STATE'S REST

Laflin argues that the trial court erred when it brought the insufficiency of the evidence regarding venue to the State's attention and invited the State to withdraw its rest in order to present additional evidence. Laflin argues that the trial court abandoned its role as a neutral fact finder when it brought the sufficiency of the evidence regarding venue to the State's attention and asked the State whether it wished to withdraw its rest. We agree that the trial court's actions constituted an abuse of discretion.

In criminal prosecutions, the withdrawal of a rest in a trial on the merits is within the discretion of the trial court. State v. Bol, 288 Neb. 144, 846 N.W.2d 241 (2014). An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. State v. Gray, 8 Neb.App. 973, 606 N.W.2d 478 (2000), overruled on other grounds, State v. Nelson, 262 Neb. 896, 636 N.W.2d 620 (2001).

Nebraska courts have previously addressed when a trial court abuses its discretion in permitting the State to withdraw its rest in a criminal case. In State v. Thomas, 236 Neb. 84, 459 N.W.2d 204 (1990), disapproved on other grounds, State v. Boslau, 258 Neb. 39, 601 N.W.2d 769 (1999), the defendant was charged with failure to appear. After the State had rested, the defendant moved for a directed verdict, contending that the prosecution was barred by the statute of limitations. Thomas, supra . The State then moved to withdraw its rest to present evidence that the defendant fell within an exception to the statute of limitations for being a person fleeing from justice. Id. The trial court permitted the State to withdraw its rest. Id. The Supreme Court affirmed, finding no abuse of discretion. Id.

In Bol, supra, the Supreme Court also affirmed the trial court's decision permitting the State to withdraw its rest and present additional evidence. The State realized after resting its case that it had forgotten to admit a stipulation that proved one of the charges. Id. The court stated that 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." Bol, 288 Neb. at 153, 846 N.W.2d at 251. Because the State, rather than the trial court, had realized the lack of proof, the Supreme Court determined the trial court did not abdicate its role as a neutral fact finder and did not abuse its discretion in permitting the State to withdraw its rest to put on additional evidence. Id. Accord State v. McKay, 15 Neb.App. 169, 723 N.W.2d 644 (2006) (affirming trial court's decision to permit State to withdraw its rest because State was alerted to...