State v. Rask

294 Neb. 612

883 N.W.2d 688

State of Nebraska, appellee,

v.Bruce V. Rask, appellant.

No. S–15–1009

Supreme Court of Nebraska.

Filed August 26, 2016

Kevin K. Knake, Grand Island, of Law Office of Richard L. Alexander, for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. Vincent, Lincoln, for appellee.

Heavican, C.J., Wright, Miller–Lerman, Cassel, Stacy, and Kelch, JJ.

Heavican, C.J.

I. NATURE OF CASE

In the early morning hours of January 17, 2014, Officer Jarvis Kring of the Minden, Nebraska, police department discovered Bruce V. Rask asleep in the cab of his running pickup truck. Rask was charged, among other offenses, with driving under the influence (DUI), third offense, in the county court for Kearney County. A jury convicted Rask of DUI, and, on appeal, the district court for Kearney County affirmed. Rask appeals to this court. We affirm.

II. BACKGROUND

According to evidence presented at trial, on January 16, 2014, Rask got off work around 11:30 p.m. to midnight. He procured a 12–pack of Bud Light beer before leaving work. Rask then picked up his friend, Carson Corr. They drove to the home of another mutual friend, where Rask and Corr each had one or two beers. Rask and Corr stayed at the friend's house until approximately 1 a.m.

Afterward, Rask drove Corr back to Corr's residence. Rask and Corr testified at trial that Rask was not impaired during the drive back to Corr's house. However, Kring testified that Rask had admitted that he got drunk before returning to Corr's home.

Rask testified that he left the engine of his pickup truck running because it was cold outside. He claims he did not pull into Corr's driveway, because he did not want to wake Corr's dogs and parents. Rask and Corr then sat in the vehicle until about 3 a.m., talking and drinking. Rask and Corr testified that they finished all but one beer out of the 12–pack of Bud Light. There is conflicting evidence in the record, but it appears that Rask had between four and six beers. Corr allegedly took the last bottle into his home when he left, along with all the empty bottles. Rask testified that he did not touch any controls of the truck while sitting in front of Corr's residence.

After Corr left, Rask decided to sleep in his truck. He alleges that he believed sleeping in his truck was the right thing to do because he did not want to get in trouble for driving drunk. Additionally, Rask testified that even though he was friends with Corr's parents, he did not go into Corr's home because he did not want to wake anybody. However, Kring testified that Rask later stated he did not go inside because he had had an argument with Corr. In any event, according to Rask, he had no feasible alternatives to sleeping in his running truck.

Around 4:40 a.m. on January 17, 2014, Kring was on duty and drove past Rask's truck while on patrol. At about 5:25 a.m., Kring drove past again and this time noticed an elbow visible through the window, so he stopped to investigate. He saw Rask, whom Kring recognized, asleep in the driver's seat. Eventually Kring was able to rouse Rask by yelling his name through the partially open passenger-side window.

Rask admitted to Kring that he was drunk. Additionally, Kring noticed a “koozie” between Rask's feet, containing what was later discovered to be a mostly empty Miller Lite beer can. Corr testified at trial that he left this can in Rask's truck sometime before January 16, 2014. Kring did not find any other alcohol containers in or around the truck.

Kring administered three field sobriety tests, each of which Rask was unable to successfully complete. Kring testified at trial that Rask also smelled of alcohol. Kring also administered a preliminary breath test (PBT). The results of the PBT were not offered at trial. After the PBT, Kring asked Rask whether he would submit to a chemical blood test; Rask refused. Kring testified at trial that during this interaction, Rask became angry, kicking his truck and using expletives.

The State charged Rask with three offenses: DUI, in violation of Neb. Rev. Stat. § 60–6,196 (Reissue 2010) ; refusal to submit to a chemical test, in violation of Neb. Rev. Stat. § 60–6,197 (Cum. Supp. 2014); and possession of an open alcohol container. The second count, refusal to submit to a chemical test, was dropped by the State after a “problem” was discovered. In his brief, Rask asserts the “problem” was that Kring failed to give Rask a proper advisement required under § 60–6,197. The record does not explicitly indicate the nature of the so-called problem, but there is no evidence that Kring gave the advisement.

A jury found Rask guilty of the DUI charge, for which the county court sentenced Rask to 180 days' imprisonment, a $1,000 fine, and a 15–year suspension of his driver's license. The county court also found Rask guilty of possession of an open alcohol container and fined Rask $100 for that infraction—a conviction from which Rask does not appeal.

III. ASSIGNMENTS OF ERROR

Rask assigns, restated and renumbered, that (1) the county court erred by admitting evidence that Kring performed a PBT, (2) the county court erred by admitting evidence that Rask refused to submit to a chemical blood test, (3) the State committed prosecutorial misconduct by introducing evidence of the PBT and the refusal, (4) the county court erred in denying Rask's motion for a mistrial, (5) the county court erred by giving a misleading jury instruction on the definition of “actual physical control of a motor vehicle,” and (6) the county court erred by failing to give the jury instruction on choice of lesser harm.

IV. STANDARD OF REVIEW

Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.¹

In a jury trial of a criminal case, an erroneous evidentiary ruling results in prejudice to a defendant unless the State demonstrates that the error was harmless beyond a reasonable doubt.²

In a harmless error review, an appellate court looks at the evidence upon which the jury rested its verdict; the inquiry is not whether in a trial that occurred without the error a guilty verdict would surely have been rendered, but, rather, whether the guilty verdict rendered in the trial was surely unattributable to the error.³

Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal present questions of law, an appellate court has an obligation to reach an independent conclusion irrespective of the decision of the court below.⁴

V. ANALYSIS

1. Motion in Limine

Rask's first four assignments of error concern the admission of evidence that Kring performed a PBT and that Rask refused to submit to a chemical blood test. Before trial, Rask filed a motion in limine to exclude all evidence concerning the PBT and his refusal. The county court partially granted the motion, excluding only the results of the PBT. Rask objected to all evidence concerning the tests at trial, and also moved for a mistrial on this basis.

(a) Evidence of PBT

In Rask's first assignment of error, he argues that evidence he performed a PBT was inadmissible. As a general rule, PBT evidence is inadmissible as proof that a defendant was impaired or intoxicated; this court has repeatedly limited the admissibility of the results of a PBT to the purpose of showing probable cause either for an arrest or for administering a chemical test.⁵ Neither of these issues is contested in this case.

In State v. Green,⁶ as in the present case, the State had offered evidence that a PBT was administered and that the defendant was arrested after taking the test. This court questioned whether it was error to admit evidence that a PBT was administered, as distinct from the results of that PBT.⁷

But without answering that question, we found harmless error. In Green, the State had also presented the arresting officer's testimony that the defendant failed field sobriety tests.⁸ Therefore, the verdict was not attributable to the fact that a PBT was administered.

We also find that any error in this case was harmless. At trial in this case, Rask did not contest that he was drunk at the time Kring administered the PBT. There was ample evidence to support this fact. Rask and Corr both testified that Rask had consumed approximately five to seven beers between 1 and 3 a.m., Rask admitted to Kring that he was drunk, Rask failed three different sobriety tests, and he smelled of alcohol. Considering all of this undisputed testimony, the jury's verdict is unattributable to the admission of the mere fact that Rask took a PBT, and any error by the district court in admitting such evidence is harmless.

Rask's first assignment of error is without merit.

(b) Evidence of Refusal

In Rask's second assignment of error, he argues the county court erred by admitting evidence that Rask refused to submit to a chemical blood test. Rask alleges that Kring did not advise Rask refusal was a separate crime and, therefore, that his refusal was inadmissible for any purpose. Upon our de novo review, interpreting § 60–6,197, we find no error.

Under § 60–6,197(1), “[a]ny person who operates or has in his or her actual physical control a motor vehicle ... shall be deemed to have given his or her consent to submit to a chemical test ....” Refusal to submit to a chemical test is a crime. Section 60–6,197 also states:

(5) Any person who is required to submit to a chemical blood, breath, or urine test or tests pursuant to this section shall be advised that refusal to submit to such test or tests is a separate crime for which the person may be charged. Failure to provide such advisement shall not affect the admissibility of the chemical test result in any legal proceedings. However, failure to provide such advisement shall negate the state's ability to bring any criminal charges against a refusing party pursuant to this section.

(6) Refusal to submit to a chemical blood, breath, or urine test or tests pursuant to this

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