State v. Richardson

CONCLUSION
Upon our de novo review of the record, we find that the
court erred in vacating the order regarding the minors’ eligibil-
ity for special immigrant juvenile status. As such, we reverse
the decision of the county court and remand the cause to the
county court with directions.
R eveRsed and Remanded with diRections.
state of nebRaska , appellee , v.
R icky lee R ichaRdson, appellant.
763 N.W.2d 420
Filed September 23, 2008. 	No. A-07-1316.
This opinion has been ordered permanently published by order
of the Court of Appeals dated February 19, 2009.
1. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Appeal and Error. A trial court’s ruling on a motion to suppress based
on the Fourth Amendment, apart from determinations of reasonable suspicion to
conduct investigatory stops and probable cause to perform warrantless searches,
is to be upheld on appeal unless its findings of fact are clearly erroneous.
2. Investigative Stops: Warrantless Searches: Probable Cause: Appeal and
Error. The ultimate determinations of reasonable suspicion to conduct an inves-
tigatory stop and probable cause to perform a warrantless search are reviewed de
novo, and findings of fact are reviewed for clear error, giving due weight to the
inferences drawn from those facts by the trial judge.
3. Investigative Stops: Motor Vehicles: Probable Cause. A traffic violation, no
matter how minor, creates probable cause to stop the driver of a vehicle.
4. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs. Once a vehi-
cle is lawfully stopped, a law enforcement officer may conduct an investigation
reasonably related in scope to the circumstances that justified the traffic stop.
5. ____: ____: ____. A traffic stop investigation may include asking the driver for
an operator’s license and registration, requesting that the driver sit in the patrol
car, and asking the driver about the purpose and destination of his or her travel.
Also, the officer may run a computer check to determine whether the vehicle
involved in the stop has been stolen and whether there are outstanding warrants
for any of its occupants.
6. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: In reviewing a
criminal conviction, an appellate court does not resolve conflicts in the evidence,
388 	17 NebRASkA AppeLLATe RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favorably to the
State, is sufficient to support the conviction.
7. Criminal Law: Constitutional Law: Statutes: Sentences: Time. Generally,
when an offense is committed prior to a statutory change, the amendment or new
statute is not applicable to the defendant. A change which imposes a more bur-
densome punishment than existed at the time a crime was committed runs afoul
of ex post facto principles.
8. Criminal Law: Statutes: Sentences. Where a criminal statute is amended by
mitigating the punishment, after the commission of a prohibited act but before
final judgment, the punishment is that provided by the amendatory act unless the
Legislature has specifically indicated otherwise.
9. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and (8)
the amount of violence involved in the commission of the crime.
10. Sentences: Appeal and Error. When a sentence imposed within statutory limits
is alleged on appeal to be excessive, the appellate court must determine whether
the sentencing court abused its discretion in considering and applying these fac-
tors as well as any applicable legal principles in determining the sentence to
be imposed.
Appeal from the District Court for Lancaster County: Jodi
nelson, Judge. Affirmed.
Dennis R. keefe, Lancaster County public Defender, and
Christopher eickholt for appellant.
Jon bruning, Attorney General, and George R. Love for
appellee.
inbody, Chief Judge, and mooRe and cassel, Judges.
mooRe, Judge.
I. INTRODUCTION
Ricky Lee Richardson appeals from his conviction and sen-
tence in the district court for Lancaster County for one count
of driving during revocation, subsequent offense. because the
district court did not err in denying Richardson’s motions to
suppress or abuse its discretion in sentencing Richardson and
because there was sufficient evidence in the record to support
Richardson’s conviction, we affirm.
STATe v. RIChARDSON 	389
Cite as 17 Neb. App. 388

II. bACkGROUND
Richardson’s appeal arises out of his conviction and sen-
tence following a traffic stop on September 4, 2006, in Lincoln,
Nebraska, by Officer Jeremy Wilhelm of the Lincoln police
Department. Wilhelm initiated the traffic stop because he did
not observe a front license plate on the vehicle. As Wilhelm
was making the stop, he was able to see a license plate in the
front window of the vehicle, although he could not see the
numbers or letters on the plate. Wilhelm was later able to see
that the license plate was on the dashboard, not fully upright,
and not securely fastened in place. During the course of the
stop, Wilhelm learned that Richardson’s operator’s license was
suspended. Wilhelm then placed Richardson under arrest and
drove him to the Lancaster County corrections facility. Wilhelm
did not read Richardson his Miranda rights at any time during
his contact with Richardson.
The State filed an information on October 12, 2006, charg-
ing Richardson with one count of driving during revocation,
subsequent offense, under Neb. Rev. Stat. § 60-6,197.06 (Cum.
Supp. 2006), a Class III felony.
Richardson filed three separate motions to suppress, which
were heard by the district court on January 11, 2007. The court
received Wilhelm’s testimony and heard arguments from coun-
sel. We discuss the relevant portions of Wilhelm’s testimony in
the analysis section below.
The district court entered an order on January 29, 2007,
overruling Richardson’s motions to suppress. The court made
certain findings of fact and then considered whether Wilhelm
had grounds to stop Richardson’s vehicle. The court reviewed
the statutory requirements for the display of license plates and
concluded Nebraska law requires that the front license plate be
prominently displayed, securely fixed and upright, and on the
front of the vehicle and that the letters and numbers be plainly
visible during daylight and under artificial light at night. The
court concluded that if the front plate is not displayed in a
manner meeting these criteria, a violation occurs. The court
found in this case that Richardson’s front license plate was
in the vehicle, was not securely fixed, and was not upright
and that the letters and numbers were not plainly visible to
390 	17 NebRASkA AppeLLATe RepORTS

Wilhelm as he observed Richardson’s vehicle travel on the
street. The court found that Wilhelm had probable cause to
stop Richardson’s vehicle as it appeared from the evidence
that Richardson was in violation of statutory provisions relat-
ing to the display of license plates. Upon concluding that
the traffic stop was lawful, the court overruled Richardson’s
motions to suppress to the extent that they related to any
visual or auditory impressions of Wilhelm during his contact
with Richardson.
The district court then addressed Richardson’s argument
that his statements to Wilhelm should be suppressed on the
basis that they were obtained in violation of Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. ed. 2d 694
(1966). The court determined that Richardson was not in cus-
tody for purposes of Miranda during the relevant interaction
with Wilhelm. The court also determined that Richardson’s
statements were freely, voluntarily, knowingly, and intelli-
gently made and were not the product of promises, force, fear,
oppression, or coercion.
Trial was held on May 21, 2007. The district court received
exhibit 1 (trial stipulation), exhibit 2 (certified driver’s abstract
record), exhibit 3 (certified copy of prior conviction for third-
offense driving under the influence (DUI)), and exhibit 4
(certificate of incarceration), which were exhibits offered
by the State. The trial stipulation, in which Richardson pre-
served his objection to the admission of the evidence targeted
in his pretrial motions to suppress, provided that Wilhelm
would testify consistent with his testimony at the suppres-
sion hearing. The court also received exhibit 5 (certified
copy of Lincoln Mun. Code § 10.52.020), which was offered
by Richardson.
because not all of the evidence that the parties wished
to present was available on May 21, 2007, trial was contin-
ued until July 2 for the presentation of further evidence. On
July 2, the district court received exhibits 6 and 7 (certified
copies of Lincoln city ordinances relating to DUI offenses),
which were offered by the State, and exhibit 8 (bill of
exceptions from the suppression hearing), which was offered
by Richardson.
STATe v. RIChARDSON 	391
Cite as 17 Neb. App. 388

The district court entered an order on September 10, 2007,
finding Richardson guilty of driving during a period of revoca-
tion. The court ordered a presentence investigation and set a
date for an enhancement and sentencing hearing. We discuss
the relevant provisions of the court’s written opinion in the
analysis section below.
On November 9, 2007, the district court received exhibits
relevant to enhancement of the charge against Richardson and
found Richardson guilty of a subsequent offense for driving
during revocation.
On 	November 	26, 	2007, 	the 	district 	court 	sentenced
Richardson to incarceration for a period of 3 to 6 years, revoked
Richardson’s operator’s license, and suspended his privilege to
operate a motor vehicle for a period of 15 years. Richardson
subsequently perfected his appeal to this court.
III. ASSIGNMeNTS OF eRROR
Richardson asserts that (1) the district court erred in denying
his motions to suppress, (2) the evidence was insufficient to
support the guilty verdict, and (3) the court abused its discre-
tion by imposing an excessive sentence.
IV. ANALYSIS
1. motions to suppRess
Richardson asserts that the district court erred in denying
his motions to suppress. Richardson argues that there was not
a traffic violation in this case warranting the stop and that
because the stop itself was illegal, any evidence seized as a
result of the stop and any statements made by Richardson dur-
ing the resulting investigation should have been suppressed.
(a) Standard of Review
[1,2] A trial court’s ruling on a motion to suppress based on
the Fourth Amendment, apart from determinations of reasonable
suspicion to conduct investigatory stops and probable cause to
perform warrantless searches, is to be upheld on appeal unless
its findings of fact are clearly erroneous. State v. Royer, 276
Neb. 173, 753 N.W.2d 333 (2008). The ultimate determinations
of reasonable suspicion to conduct an investigatory stop and
392 	17 NebRASkA AppeLLATe RepORTS

probable cause to perform a warrantless search are reviewed de
novo, and findings of fact are reviewed for clear error, giving
due weight to the inferences drawn from those facts by the trial
judge. State v. Allen, 269 Neb. 69, 690 N.W.2d 582 (2005),
disapproved on other grounds, State v. McCulloch, 274 Neb.
636, 742 N.W.2d 727 (2007).
(b) Motions to Suppress Were properly Denied
At 	the 	suppression 	hearing, 	Wilhelm 	testified 	that 	he
noticed Richardson’s vehicle because of the improper display
of the front license plate. Wilhelm initially thought there
was no front plate on the vehicle. before the stop, however,
Wilhelm observed what appeared to be a license plate in the
front window of the vehicle. The front license plate was not
on the front bumper; but, rather, it was in the front window
of the vehicle, “tucked in” between the glass and the dash-
board. Although the front license plate appeared to be sta-
tionary in the window, Wilhelm was unable to ascertain the
numbers or see the plate clearly. Wilhelm did not observe
any license plate numbers for the vehicle until he turned his
vehicle around and approached Richardson’s vehicle from
behind. The rear license plate on the vehicle was displayed
properly. Wilhelm immediately conducted a traffic stop of the
vehicle. Wilhelm contacted the driver who identified himself
as Richardson. Richardson did not have an operator’s license
on him. Wilhelm then asked Richardson to exit the vehicle
and placed Richardson in the rear seat of the police cruiser for
further positive identification. Wilhelm positively identified
Richardson using the mobile data terminal computer in his
vehicle. Wilhelm ran Richardson’s name through the “war-
rant channel” and learned that Richardson’s operator’s license
was suspended.
With respect to the placement of license plates on a vehicle,
there are several relevant statutory provisions. Neb. Rev. Stat.
§ 60-399 (Cum. Supp. 2006) provides:
(1) except as otherwise specifically provided, no per-
son shall operate or park or cause to be operated or
parked a motor vehicle or tow or park or cause to
be towed or parked a trailer on the highways unless
STATe v. RIChARDSON 	393
Cite as 17 Neb. App. 388

such motor vehicle or trailer has displayed the proper
number of plates as required in the Motor Vehicle
Registration Act.
. . . In all cases such license plates shall be securely
fastened in an upright position to the motor vehicle or
trailer so as to prevent such plates from swinging and at
a minimum distance of twelve inches from the ground to
the bottom of the license plate. . . .
(2) All letters, numbers, printing, writing, and other
identification marks upon such plates and certificate shall
be kept clear and distinct and free from grease, dust, or
other blurring matter, so that they shall be plainly visible
at all times during daylight and under artificial light in
the nighttime.
Neb. Rev. Stat. § 60-3,100 (Cum. Supp. 2006) provides in rele-
vant part that “[w]hen two license plates are issued, one shall
be prominently displayed at all times on the front and one on
the rear of the registered motor vehicle or trailer.”
[3] The district court concluded in this case that the manner
in which the front license plate on Richardson’s vehicle was
displayed was in violation of the above provisions relating to
the display of license plates in the Motor Vehicle Registration
Act. We agree. Although Wilhelm could see that a license
plate had been placed against the front windshield, he was
unable to read the numbers on the plate. Richardson argues
that Wilhelm’s inability to read the plate was more attribut-
able to the speed at which the two vehicles were traveling and
the fact that the stop occurred at night than to the positioning
of the plate itself; however, the district court clearly inferred
that Wilhelm was unable to read the numbers on the front
license plate due to the manner in which it was displayed. We
give due deference to that inference and conclude, as did the
district court, that a traffic violation occurred, giving Wilhelm
probable cause to stop Richardson’s vehicle. A traffic viola-
tion, no matter how minor, creates probable cause to stop the
driver of a vehicle. State v. Royer, 276 Neb. 173, 753 N.W.2d
333 (2008).
[4,5] Once a vehicle is lawfully stopped, a law enforcement
officer may conduct an investigation reasonably related in
394 	17 NebRASkA AppeLLATe RepORTS

scope to the circumstances that justified the traffic stop. Id. A
traffic stop investigation may include asking the driver for an
operator’s license and registration, requesting that the driver sit
in the patrol car, and asking the driver about the purpose and
destination of his or her travel. State v. Louthan, 275 Neb. 101,
744 N.W.2d 454 (2008). Also, the officer may run a computer
check to determine whether the vehicle involved in the stop
has been stolen and whether there are outstanding warrants
for any of its occupants. Id. These were in fact the steps that
Wilhelm took upon contacting Richardson and learning that
Richardson did not have an operator’s license on his person,
and which led to the discovery that Richardson’s license had
been suspended.
because the traffic stop was lawful and because Wilhelm’s
subsequent investigation was reasonably related in scope to the
circumstances that justified the traffic stop, we conclude that
the district court did not err in denying Richardson’s motions
to suppress.
2. sufficiency of evidence
Richardson asserts that the evidence was insufficient to
support the guilty verdict in this case of driving during revo-
cation, subsequent offense. Richardson argues that the State
did not prove the contents of the municipal ordinance relative
to the prior revocation of his operator’s license and that the
revocation period had expired at the time of the September 4,
2006, stop.
(a) Standard of Review
[6] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted
at trial, viewed and construed most favorably to the State, is
STATe v. RIChARDSON 	395
Cite as 17 Neb. App. 388

sufficient to support the conviction. State v. Thurman, 273 Neb.
518, 730 N.W.2d 805 (2007).
(b) evidence Was Sufficient
(i) Proof of City DUI Ordinance
In order to prove the charge against Richardson, the State
was required to prove that his driver’s license had been revoked
by a court and that at the time he was stopped on September
4, 2006, he was operating a motor vehicle during a period of
court-ordered revocation.
exhibit 	3, 	a 	certified 	copy 	of 	Richardson’s 	convic-
tion for DUI, third offense, in violation of Lincoln Mun.
Code § 10.52.020, was received at trial without objection
by Richardson. exhibit 3 shows that Richardson’s offense
occurred on August 30, 1990. The uniform citation and com-
plaint shows that on that date, Richardson “[o]perate[d] or
[was] in actual physical control of a motor vehicle while under
the influence of alcoholic liquor or drugs or when he/she had
an amount of alcohol in his/her blood, breath, or urine in
excess of the amount permitted by law; L.M.C. § 10.52.020.”
In that case, Richardson entered a guilty plea in February
1991 and was sentenced on May 3 to 5 months in jail and
was ordered not to drive a motor vehicle for 15 years with his
operator’s license and driving privileges being revoked and
suspended for a like period of time.
exhibit 7 was received at trial in this case. The certification
on exhibit 7 is dated May 21, 2007, and shows that exhibit 7
is a true and correct copy of city ordinance No. 14918 as the
original appears in the office of the city clerk. Ordinance No.
14918 amended §§ 10.52.020 and 10.52.025 of the municipal
code to change the penalties for DUI to bring the penalties in
conformity with state law. exhibit 7 shows that § 10.52.020
concerned the offense of DUI. The penalties for DUI found in
§ 10.52.020, as contained in exhibit 7, provide that if a per-
son had two or more previous DUI convictions, the individual
would be sentenced to a jail term of 3 to 6 months, would
be fined $500, and would have his or her operator’s license
revoked for a period of 15 years. The ordinance also provided
that the revocation was to be administered upon sentencing and
396 	17 NebRASkA AppeLLATe RepORTS

should not run concurrently with any jail term imposed. exhibit
7 shows that the ordinance was passed on June 27, 1988, with
an operative date of July 9, 1988. exhibit 7 includes a certifi-
cate page from the city clerk, dated July, 1, 1988, wherein the
city clerk certified that the ordinance was passed by the city
council and approved by the mayor.
exhibit 6 was also received by the district court. exhibit 6
is a certified copy of city ordinance No. 15635 and shows that
the ordinance enacted chapter 10.16 of the municipal code to
revise and renumber certain sections of the code relating to
DUI, unlicensed, or uninsured. The certification, dated May
21, 2007, shows that exhibit 6 is a true and correct copy of the
ordinance as the original appears in the office of the city clerk.
The ordinance was passed on July 9, 1990, with an operative
date of December 1, 1990, and among other things, repealed
the former § 10.52.020. The relevant municipal code provi-
sion for DUI in exhibit 6 is found in § 10.16.030 and contains
sentencing provisions essentially identical to those found in the
DUI code provision set forth in exhibit 7 with, for the most
part, only a few minor grammatical changes from the text of
the provision found in exhibit 7. exhibit 6 includes a certificate
page from the city clerk, dated July 16, 1990, certifying that
the ordinance was passed by the city council and approved by
the mayor.
Richardson offered exhibit 5, a certified copy of a portion of
chapter 10.52 of the city ordinances, which has been in effect
from its passage on July 9, 1990, and was still in effect on May
15, 2007, the date of the certification. exhibit 5 shows that
§ 10.52.020, since July 9, 1990, has prohibited the obstruction
of public streets by trains and since that time has not addressed
the offense of DUI.
The district court concluded from the above evidence that
exhibit 6 shows that the city code provisions regarding DUI
offenses were amended and renumbered in July 1990, that the
DUI provisions were previously found in § 10.52.020, and
that at the time of Richardson’s arrest on August 30, 1990, the
provisions were actually found in § 10.16.030, which became
effective on July 16, 1990. The court concluded that the State
had proved beyond a reasonable doubt that Richardson had
STATe v. RIChARDSON 	397
Cite as 17 Neb. App. 388

previously been convicted of DUI, third offense, on May 3,
1991, and that as a part of that conviction, his driver’s license
was suspended/revoked for 15 years.
We agree with the district court that the evidence shows
that the municipal code DUI provisions were amended and
renumbered in July 1990. The record shows, however, that
those changes did not go into effect until December 1, 1990.
Accordingly, while the changes were not in effect at the time
Richardson committed the offense in August 1990, they were
in effect at the time of Richardson’s plea-based conviction and
sentencing in February and May 1991, respectively.
[7,8] We note that the changes to the particular DUI code
provision in question were not substantive, but involved a few
grammatical changes and a renumbering of the DUI provi-
sions in general. Generally, when an offense is committed
prior to a statutory change, the amendment or new statute
is not applicable to the defendant. State v. Groff, 247 Neb.
586, 529 N.W.2d 50 (1995). A change which imposes a more
burdensome punishment than existed at the time a crime was
committed runs afoul of ex post facto principles. Id. Where a
criminal statute is amended by mitigating the punishment, after
the commission of a prohibited act but before final judgment,
the punishment is that provided by the amendatory act unless
the Legislature has specifically indicated otherwise. State v.
Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999).
Viewing and construing the evidence most favorably to the
State, we conclude that the State put forth sufficient evidence
to prove the contents of the city DUI ordinances in effect both
at the time of Richardson’s 1990 offense and in effect at the
time of his plea and sentencing in 1991. Richardson’s argu-
ments relating to this portion of his assignment of error are
without merit.
(ii) Revocation Period Not Expired
For his 1990 DUI offense, Richardson was sentenced on
May 3, 1991, to 5 months in jail, a $500 fine, and a 15-year
license revocation with the sentence to run consecutive to any
other sentence then being served by Richardson. both the old
version of § 10.52.020 and the new § 10.16.030 provide that
398 	17 NebRASkA AppeLLATe RepORTS

the 15-year license revocation “shall be administered upon
sentencing” and that such revocation “shall not run concur-
rently with any jail term imposed.” exhibit 4, the certificate of
incarceration, shows that at the time Richardson was sentenced
on May 3, he was serving another sentence which began on
April 30 and concluded on October 1. exhibit 4 further shows
that Richardson commenced serving the DUI, third offense,
sentence in question on October 2 and that he finished serving
this sentence on January 27, 1992.
The district court reasoned that under the above facts, the
15-year license revocation period did not begin to run until
January 28, 1992, and thus did not end until January 28, 2007.
The court concluded that Richardson’s license was still under
revocation at the time of the September 4, 2006, traffic stop.
We agree and find no merit to Richardson’s arguments to
the contrary.
3. sentencing
Richardson asserts that the district court abused its discre-
tion by imposing an excessive sentence.
(a) Standard of Review
[9,10] When imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) educa-
tion and experience, (4) social and cultural background, (5)
past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of
the offense, and (8) the amount of violence involved in the
commission of the crime. State v. Archie, 273 Neb. 612, 733
N.W.2d 513 (2007). When a sentence imposed within statu-
tory limits is alleged on appeal to be excessive, the appellate
court must determine whether the sentencing court abused its
discretion in considering and applying these factors as well as
any applicable legal principles in determining the sentence to
be imposed. Id.
(b) Sentence Was Not excessive
A subsequent offense of operating a motor vehicle dur-
ing a revocation period is a Class III felony, punishable by
1 to 20 years’ imprisonment, a $25,000 fine, or both. See,
STATe v. RIChARDSON 	399
Cite as 17 Neb. App. 388

§ 60-6,197.06; Neb. Rev. Stat. § 28-105 (Cum. Supp. 2006).
because of Richardson’s prior convictions for felony driving
under suspension, the district court sentenced Richardson to 3
to 6 years’ imprisonment, a sentence clearly within the statu-
tory limits. The record shows that the district court did con-
sider other relevant factors besides Richardson’s past criminal
history. In particular, the court noted Richardson’s need for
alcohol treatment and his desire to not “be here again.” After
reviewing the record and the presentence investigation report,
which reflects previous driving under suspension convictions
and sentences of various lengths, we conclude that the district
court’s sentence was not an abuse of its discretion.
V. CONCLUSION
The district court did not err in denying Richardson’s
motions to suppress or abuse its discretion in sentencing
Richardson. There was sufficient evidence in the record to sup-
port Richardson’s conviction.
affiRmed.
thomas e. babel , appellant, v.
JeRRy schmidt et al ., appellees.
765 N.W.2d 227
Filed March 3, 2009. 	No. A-08-089.
1. Equity: Boundaries: Appeal and Error. An action to ascertain and permanently
establish corners and boundaries of land under Neb. Rev. Stat. § 34-301 (Reissue
2008) is an equity action.
2. Equity: Appeal and Error. In an equity action, an appellate court reviews the
record de novo and reaches an independent conclusion without reference to the
conclusion reached by the trial court, except that where credible evidence is in
conflict, the appellate court will give weight to the fact that the trial court saw the
witnesses and observed their demeanor while testifying.
3. Waters: Words and Phrases. Avulsion is a sudden and perceptible loss of or
addition to land by the action of water, or a sudden change in the bed or course
of a stream.
4. ____: ____. Avulsion is a change in a stream that is violent and visible and arises
from a known cause.
5. ____: ____. Accretion is the process of gradual and imperceptible addition of
solid material, called alluvion, thus extending the shoreline out by deposits made
400 	17 NebRASkA AppeLLATe RepORTS