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State v. Taylor

Supreme Court of Nebraska

December 6, 2013

State of Nebraska, appellee,
v.
Robert C. Taylor, appellant.

Page 527

Petition for further review from the Court of Appeals, INBODY, Chief Judge, and MOORE and RIEDMANN, Judges, on appeal thereto from the District Court for Lancaster County, ROBERT R. OTTE, Judge. Judgment of Court of Appeals affirmed.

Robb N. Gage for appellant.

Jon Bruning, Attorney General, Erin E. Tangeman, and Nathan A. Liss for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

1. Prior Convictions: Appeal and Error. On a claim of insufficiency of the evidence, an appellate court, viewing and construing the evidence most favorably to the State, will not set aside a finding of a previous conviction for the purposes of sentence enhancement supported by relevant evidence.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent

Page 528

conclusion irrespective of the determination made by the court below.

3. Sentences: Prior Convictions: Proof. In order to prove a prior conviction for purposes of sentence enhancement, the State has the burden to prove the fact of prior convictions by a preponderance of the evidence, and the trial court determines the fact of prior convictions based upon the preponderance of the evidence standard.

4. Trial: Evidence: Proof. Preponderance of the evidence requires proof which leads the jury to find that the existence of the contested fact is more probable than its nonexistence.

5. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

6. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the legislative language.

7. Drunk Driving: Prior Convictions: Proof: Time. The plain and ordinary meaning of Neb.Rev.Stat. § 60-6,197.02 (Reissue 2010) does not require the State to prove the exact date of the prior offense.

8. Drunk Driving: Prior Convictions: Proof: Time. Under Neb.Rev.Stat. § 60-6,197.02 (Reissue 2010), the State has the burden to prove by a preponderance of the evidence that the prior offense occurred in the 12 years prior to the current offense.

9. Rules of the Supreme Court: Appeal and Error. Absent plain error, the Supreme Court's review on a petition for further review is restricted to matters assigned and argued in the briefs.

McCormack, J.

[286 Neb. 967] ...


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