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State v. Frederick

Supreme Court of Nebraska

June 26, 2015

STATE OF NEBRASKA, APPELLEE,
v.
BENJAMIN FREDERICK, APPELLANT

Page 682

Appeal from the District Court for Buffalo County, JOHN P. ICENOGLE, Judge, on appeal thereto from the County Court for Buffalo County, GERALD R. JORGENSEN, JR., Judge.

Greg C. Harris for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, MILLER-LERMAN, and CASSEL, JJ.

OPINION

Page 683

[291 Neb. 244] McCormack, J.

NATURE OF CASE

The defendant was convicted in county court of driving during revocation in violation of Neb. Rev. Stat. § 60-4,108(1) (Cum. Supp. 2014), which states:

It shall be unlawful for any person to operate a motor vehicle during any period that he or she is subject to a court order not to operate any motor vehicle for any purpose or during any period that his or her operator's license has been revoked or impounded pursuant to conviction or convictions for violation of any law or laws of this state, by an order of any court, or by an administrative order of the director.

The only evidence presented at the trial besides the defendant's driving record reflecting that the defendant's license was revoked was the testimony of a local law enforcement officer. The officer testified that he found the defendant driving in a store parking lot. There was a passenger in the vehicle, and the vehicle was unlicensed. There was no evidence concerning the ownership of the vehicle. The officer testified that he did not see the defendant drive outside of the parking lot. The question on appeal is whether the evidence was sufficient to support the conviction.

BACKGROUND

Benjamin Frederick was found guilty in a bench trial before the county court of driving during revocation in violation of [291 Neb. 245] § 60-4,108(1), a Class II misdemeanor. He was sentenced to 30 days of jail time and 9 months of probation.

Before trial, Frederick moved to suppress the testimony of the State's only witness, the officer who observed him driving with a suspended license. The officer testified that Frederick was driving a vehicle without license plates in a Wal-Mart parking lot in Kearney, Nebraska. The officer never observed Frederick operate the vehicle outside of the parking lot.

Arguments were not made on the record, but the court responded that the issue raised by Frederick in the motion to suppress " appear[ed] to be more of a trial issue." The court said that it would need " to read all these statutes and see how the scheme fits" before deciding the motion. The motion was later denied.

At trial, the officer testified that around 3 p.m. on December 31, 2012, a caller reported that " Benjamin Frederick" was driving without a license in the Wal-Mart parking lot. The officer responded to the call in a marked police cruiser. The officer observed the vehicle described by the caller when he arrived at the Wal-Mart parking lot. The vehicle did not have license plates. The officer was able to visually

Page 684

identify the driver as Frederick. There was a female passenger in the vehicle.

The officer followed Frederick's vehicle as it weaved up and down the parking lot aisles. The officer confirmed on his in-car mobile data terminal that Frederick's driver's license was revoked. The officer did not activate the police cruiser's lights, but Frederick eventually pulled into a parking space and exited the ...


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