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State v. Serr

Court of Appeals of Nebraska

July 2, 2013

State of Nebraska, appellee,
v.
Herbert E. Serr, appellant.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the District Court for Lancaster County: Karen B. FLowers, Judge. Remanded for further proceedings.

Dennis R. Keefe, Lancaster County Public Defender, Scott P. Helvie, and Luke Henderson, Senior Certified Law Student, for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Inbody, Chief Judge, and Irwin and Moore, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Irwin, Judge.

I. INTRODUCTION

Herbert E. Serr appeals his conviction on a charge of driving during revocation, subsequent offense, and the sentence imposed. On appeal, Serr challenges the district court's receipt of various exhibits offered to demonstrate his prior driver's license revocation, the sufficiency of the evidence to support the conviction, and the sentence imposed by the district court. We find no merit to Serr's assertions of reversible error related to the court's admission of evidence, the sufficiency of the evidence, or the sentence imposed. We do find that the sentencing court failed to comply with the statutory mandate of Neb. Rev. Stat. § 60-6, 197.01 (Reissue 2010) regarding immobilization of vehicles or ordering of an ignition interlock device, and we remand for further proceedings.

II. BACKGROUND

The underlying facts surrounding Serr's being stopped by law enforcement are not relevant to the issues raised on appeal and need not be discussed in depth. Serr was stopped in November 2011 for running a red light in Lincoln, Nebraska. That stop led to the present action wherein Serr was charged and convicted of driving during revocation, subsequent offense.

On January 27, 2012, Serr was charged by information with operating a motor vehicle during a period of license revocation. The information indicated that the offense was set forth in Neb. Rev. Stat. § 60-6, 197.06 (Reissue 2010), and alleged that at the time of the November 2011 stop, Serr's operator's license had been revoked pursuant to Neb. Rev. Stat. § 28-306; Neb. Rev. Stat. § 60-698; Neb. Rev. Stat. § 60-6, 197.03(4) through (10); or pursuant to Neb. Rev. Stat. § 60-6, 196(2)(c) or (d) or Neb. Rev. Stat. § 60-6, 197(4)(c) or (d), "as such . . . existed prior to July 16, 2004." The information also alleged that Serr had previously been convicted of operating a motor vehicle during a period of revocation, and it specifically referenced an April 2011 conviction in York County, Nebraska.

Serr filed motions to suppress statements and evidence. The district court scheduled a hearing on the motions to suppress, and the parties agreed that after that hearing the matter would be submitted to the court as "a stipulated [bench] trial."

The testimony presented to the district court included that of the officer who initially stopped Serr in November 2011. He testified that he witnessed Serr violate a red traffic light and effected a traffic stop. He testified that when he made contact with Serr, Serr provided his name correctly but provided a false date of birth. The officer testified that Serr told the officer that he had given a false date of birth "[b]ecause he knew he had a suspended license" and "he was afraid of going back to prison."

Serr testified in his own behalf. He denied having violated a red traffic light and indicated that the light remained yellow as he passed through the intersection. On cross-examination, he acknowledged that his operator's license had been revoked at the time of the traffic stop in this case and acknowledged that he knew he was driving on a revoked license.

At the conclusion of the hearing, the court concluded that it believed the testimony of the officer and that the traffic stop was proper. The parties then stipulated that if the officer were called to testify again for a trial, his testimony would be consistent with his testimony during the hearing and that the court could consider that testimony for purposes of the bench trial.

The State then offered a number of exhibits.

Exhibits 1 and 2 were purported to relate to a 2010 conviction in York County for driving during a period of license revocation and a 2006 conviction in Saunders County, Nebraska, for driving during a period of license revocation. Exhibit 3 was purported to be a certified copy of Serr's driving abstract from the Nebraska Department of Motor Vehicles (DMV). Exhibit 4 was purported to relate to a 1997 conviction in York County for driving under the influence, third offense. The 1997 driving under the influence conviction was represented to be the underlying offense which led to Serr's operator's license being revoked for 15 years.

Serr made a variety of objections to the exhibits, including challenges to relevance and undue prejudice related to exhibits 1 and 2. The State ultimately indicated that exhibits 1 and 2 were intended for purposes of enhancement if the court found Serr guilty of the current charge of operating a motor vehicle during a period of license revocation. Serr then objected to exhibits 3 and 4 on a variety of grounds, including challenges that the exhibits were hearsay and that their admission would violate Serr's right to confrontation. Serr also objected that exhibit 4 had not previously been disclosed to Serr, that it was not properly certified or self-authenticating, and that it was not a final order. The State then sought a continuance to address issues raised by the objections.

The court denied the State's request for a continuance. The State then reoffered exhibits 1 and 2. Serr renewed his objections to exhibits 1 and 2. The court then took the matter under advisement.

At a subsequent hearing, the court specifically overruled the motions to suppress. The court then found that the State had proven that Serr had operated a motor vehicle during a period of license revocation and that this was a subsequent offense.

The court subsequently held an enhancement hearing and ultimately imposed a sentence of 2 to 5 years' imprisonment. The court also ordered Serr's operator's license revoked for a period of 15 years. This appeal followed.

III. ASSIGNMENTS OF ERROR

On appeal, Serr has assigned errors challenging the court's admission of exhibits 1 through 4, the sufficiency of the evidence to support his conviction, and the sentence imposed.

IV. ANALYSIS

1. Admission of Exhibits

Serr first challenges the admission of exhibits 1 through 4. Inasmuch as Serr's challenges to each exhibit differed, we will address each exhibit and its admissibility individually. We find no reversible error related to the admission of these exhibits.

As noted in the factual background section above, exhibits 1 and 2 were initially offered, objected to, withdrawn, and later reoffered during the trial in this matter. Exhibits 3 and 4 were also offered during the trial in this matter. Finally, ...


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