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Appeal from the District Court for Gage County, PAUL W. KORSLUND, Judge, on appeal thereto from the County Court for Gage County, STEVEN B. TIMM, Judge.
Lee Timan and Kyle Manley, of Clark & Timan, P.C., for appellant.
Douglas J. Peterson, Attorney General, and George R. Love for appellee.
IRWIN, PIRTLE, and RIEDMANN, Judges.
[23 Neb.App. 841] Irwin, Judge.
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.
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 [23 Neb.App. 842] 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 ...