State v. Brauer

Foster v. Foster, 266 Neb. 32, 662 N.W.2d 191 (2003). In this
case, we are most concerned with the juvenile court’s delay in
denying the motion to transfer, and the record before us, even
without the bill of exceptions of the final hearing, is sufficient
to present that issue.
Section 43-1504(2) requires transfer to tribal court absent a
showing of good cause. Regardless of what evidence may have
been presented at the May 29, 2007, hearing, the juvenile court
commenced with trial without any evidence of good cause.
The juvenile court deliberately delayed ruling on the motion
to transfer for almost 22 months, until after it had conducted
complete termination proceedings and after it had entered an
order terminating Ida’s and Jose’s parental rights. In so doing,
the juvenile court contravened the Nebraska Supreme Court’s
interpretation of the ICWA and the ICWA’s underlying intent
and conducted termination proceedings that, without a showing
of good cause, rightly belonged in the tribal court.
We conclude that the juvenile court’s refusal to rule on the
motion to transfer before proceeding with termination proceed-
ings was erroneous and an abuse of discretion. Therefore, we
reverse the juvenile court’s denial of the motion to transfer,
vacate and dismiss the order terminating parental rights, and
remand, with directions to transfer the matter to tribal court.
Vacated and dismissed in part , and in part
reVersed and remanded with directions .
state of nebraska , appellee , V.
chad a. brauer , appellant .
743 N.W.2d 655
Filed December 18, 2007. 	No. A-07-256.
1. Judgments. The meaning of a judgment is determined, as a matter of law, by
its contents.
2. ____. Unless the language used in a judgment is ambiguous, the effect of the
decree must be declared in the light of the literal meaning of the language used.
3. ____. If the language of a judgment is ambiguous, there is room for construction.
4. Judgments: Words and Phrases. A judgment is ambiguous if a word, phrase, or
provision has at least two reasonable but conflicting meanings.
STATe V. bRAUeR 	257
Cite as 16 Neb. App. 257
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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5. Judgments. In ascertaining the meaning of an ambiguous judgment, resort may
be had to the entire record.
6. Investigative Stops: Motor Vehicles. Upon stopping a vehicle for a traffic viola-
tion, it is lawful to detain the driver while checking the registration and the license
of the driver.
7. Investigative Stops: Motor Vehicles: Miranda Rights. Roadside questioning of a
driver detained pursuant to a routine traffic stop does not constitute custodial inter-
rogation for purposes of Miranda. There must be some further action or treatment
by the police to render a driver in custody and entitled to Miranda warnings.
Appeal from the District Court for Lincoln County, donald
e. rowlands ii, Judge, on appeal thereto from the County Court
for Lincoln County, kent d. turnbull, Judge. Judgment of
District Court affirmed.
James 	D. 	McFarland, 	of 	McFarland 	Law 	Office,
for appellant.
Jon 	bruning, 	Attorney 	General, 	and 	George 	R. 	Love
for appellee.
inbody, Chief Judge, and irwin and moore, Judges.
irwin, Judge.
I. INTRODUCTION
Chad A. brauer appeals an order of the district court which
affirmed the county court’s conviction and sentencing of brauer
on a charge of second-offense driving under the influence of
alcohol (DUI). On appeal, brauer asserts that the district court
erred in denying brauer’s motion for reconsideration and rehear-
ing, in which brauer asserted that the county court had entered
an ambiguous judgment by finding brauer guilty of DUI or
operating a motor vehicle with an impermissible blood alcohol
concentration. Additionally, brauer asserts that the district court
erred in affirming the county court’s orders denying brauer’s
motions in limine and for suppression of statements and that
the district court erred in affirming brauer’s conviction. We find
that based on the entire record, it is clear that in its judgment,
the county court found brauer guilty of both DUI and operating
a motor vehicle with an impermissible blood alcohol concen-
tration. Additionally, we find no merit to brauer’s assertions
258 	16 NebRASkA AppeLLATe RepORTS

concerning his pretrial motions and we find that there was suf-
ficient evidence to support brauer’s conviction. We affirm.
II. bACkGROUND
On October 24, 2004, Trooper Jarrod Connelly was on patrol
when he observed a vehicle driven by brauer exceeding the
speed limit. Trooper Connelly stopped the vehicle and made
contact with brauer and the vehicle’s other two occupants.
According to Trooper Connelly, he detected an odor of alcohol
coming from inside the vehicle. Trooper Connelly asked brauer
if he had consumed any alcohol, and brauer replied, “‘[A]
couple.’” Trooper Connelly then asked brauer to step back to
the patrol car “so [he] could . . . isolate the odor” of alcohol.
brauer sat in the passenger seat of Trooper Connelly’s patrol
car, and Trooper Connelly detected an odor of alcohol on
brauer’s breath. Trooper Connelly oberved that brauer’s eyes
were bloodshot and watery. Trooper Connelly asked brauer
again if he had consumed alcohol, and brauer replied that he
had consumed “‘four beers.’” Trooper Connelly administered
a number of field sobriety tests, during which brauer displayed
signs of impairment. Trooper Connelly then administered a
preliminary breath test, the result of which was “above . . . the
legal limit.”
based on his observations and experience, Trooper Connelly
believed that brauer was under the influence of alcohol. As a
result, Trooper Connelly placed brauer under arrest. Trooper
Connelly transported brauer to a hospital where his blood was
drawn for a blood alcohol concentration test.
On November 9, 2004, the State filed a complaint in county
court charging brauer with DUI or with operating a motor
vehicle when his blood alcohol content was .08 grams of alco-
hol or more per 100 milliliters of blood, pursuant to Neb. Rev.
Stat. § 60-6,196 (Reissue 2004). The State alleged that this was
a second offense. On November 12, brauer entered a plea of
not guilty.
On February 23, 2005, brauer filed a motion in limine to
exclude from trial the result of the preliminary breath test. At
trial, the county court ruled that the preliminary breath test result
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was admissible solely for the purpose of determining whether
Trooper Connelly had probable cause to arrest brauer.
On March 23, 2005, brauer filed a motion to suppress the
statements he made to Trooper Connelly indicating that he had
consumed four beers prior to driving. On May 6, the county
court entered an order overruling the motion to suppress.
On November 2, 2005, brauer filed a motion in limine to
exclude from trial the result of the blood test. brauer argued
at the hearing on the motion that the sample was not properly
refrigerated after testing to allow him to independently test it.
On January 18, 2006, the county court entered an order over-
ruling this motion in limine.
On May 26, 2006, a bench trial was held. On May 31, the
county court entered an order finding brauer guilty. The county
court’s order specifically held that brauer was guilty of operating
a motor vehicle “while under the influence of alcoholic liquor
or while he had a concentration of eight-hundredths of one gram
or more by weight of alcohol per one hundred milliliters of his
blood.” (emphasis supplied.) On August 31, the county court
entered an order sentencing brauer.
On September 14, 2006, brauer filed a notice of appeal to
the district court. On February 5, 2007, the district court entered
an order reversing in part and affirming in part. The district
court held that the county court erred in admitting the result
of the blood test and, accordingly, in finding brauer guilty of
operating a motor vehicle while having an impermissible blood
alcohol content. However, the district court held that there was
sufficient evidence to sustain brauer’s conviction on the basis of
brauer’s being under the influence of alcohol.
On February 16, 2007, brauer filed a motion for reconsidera-
tion and rehearing, asserting that the county court’s judgment
had been ambiguous. On March 6, the district court pronounced
a ruling on the motion, but did not enter a written, signed, and
file-stamped order. Also on March 6, brauer filed his notice of
appeal. On April 9, the district court entered a written, signed,
and file-stamped order overruling the motion for reconsidera-
tion and rehearing. Although the motion for reconsideration
and rehearing was not a proper motion to be filed in this case
where the district court was sitting as an intermediate court of
260 	16 NebRASkA AppeLLATe RepORTS

appeals, see Goodman v. City of Omaha, 274 Neb. 539, 742
N.W.2d 26 (2007), brauer’s appeal was timely because it was
filed within 30 days of entry of the district court’s final order
on February 5.
III. ASSIGNMeNTS OF eRROR
brauer has assigned three errors on appeal: (1) The district
court erred in denying brauer’s motion for reconsideration and
rehearing, in which brauer asserted that the county court had
entered an ambiguous judgment by finding brauer guilty of
DUI or operating a motor vehicle with an impermissible blood
alcohol concentration; (2) the district court erred in affirming
the county court’s orders denying brauer’s motions in limine
and for suppression of statements; and (3) the district court
erred in affirming brauer’s conviction.
IV. ANALYSIS
1. ambiguous county court J udgment
First, brauer argues that the county court’s use of the word
“or” in the judgment convicting brauer rendered the verdict
ambiguous because it is not clear whether the county court
intended to find brauer guilty of (1) DUI or (2) driving while
having an impermissible concentration of alcohol in his blood.
We conclude, based on the entire record, that brauer was
charged and tried on alternate theories, the evidence received
by the county court supported a conviction on both theories, and
the county court’s order, despite its use of the word “or,” was a
finding of guilt on both theories.
[1-5] Resolution of this issue requires us to ascertain the
meaning of the county court’s judgment. In other contexts,
it has been recognized that the meaning of a judgment is
determined, as a matter of law, by its contents. Davis v. Crete
Carrier Corp., 15 Neb. App. 241, 725 N.W.2d 562 (2006);
In re Interest of Teela H., 3 Neb. App. 604, 529 N.W.2d 134
(1995). Unless the language used in a judgment is ambig-
uous, “‘the effect of the decree must be declared in the light
of the literal meaning of the language used.’” In re Interest
of Teela H., 3 Neb. App. at 609, 529 N.W.2d at 138, quoting
Bokelman v. Bokelman, 202 Neb. 17, 272 N.W.2d 916 (1979).
STATe V. bRAUeR 	261
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See Label Concepts v. Westendorf Plastics, 247 Neb. 560, 528
N.W.2d 335 (1995). If the language of a judgment is ambig-
uous, there is room for construction. Id.; Davis v. Crete Carrier
Corp., supra. A judgment is ambiguous if a word, phrase, or
provision has at least two reasonable but conflicting meanings.
Davis v. Crete Carrier Corp., supra. In ascertaining the mean-
ing of an ambiguous judgment, resort may be had to the entire
record. Id.
The above propositions are in many ways similar to the exist-
ing framework that guides our resolution of issues where a court
sentencing a criminal defendant has pronounced an ambiguous
sentence. In that context, it has been held that if it is unclear
what the trial court intended in imposing a sentence because of
a discrepancy between the oral pronouncement of sentence and
the written judgment imposing sentence, that ambiguity can be
resolved by relying on the oral pronouncement of sentence. See
State v. Temple, 230 Neb. 624, 432 N.W.2d 818 (1988). On the
other hand, if an oral pronouncement of sentence is invalid but
the written judgment imposing sentence is valid, the written
judgment is looked to and considered controlling. See State v.
Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995). We have also
held that where there is an ambiguity in the judgment indicat-
ing that a finding of guilt was based on a plea of guilty where
the record demonstrates that there was a trial and the finding of
guilt was based on the evidence adduced thereon, we look to the
record and presume that a plea of not guilty was entered prior
to or at trial. See State v. Erb, 6 Neb. App. 672, 576 N.W.2d
839 (1998).
In the present case, brauer was charged in county court by a
complaint that alleged brauer was guilty of operating a motor
vehicle “while under the influence of alcoholic liquor . . . or
while he had” an impermissible concentration of alcohol in his
blood. (emphasis supplied.) The language of the complaint is
based on the language of § 60-6,196(1), which provides three
separate grounds for finding that a defendant is guilty of DUI.
A review of the record demonstrates that the State adduced
evidence to prove DUI under both theories alleged in the com-
plaint: The arresting officer, Trooper Connelly, presented testi-
mony about his observations of brauer, brauer’s performance
262 	16 NebRASkA AppeLLATe RepORTS

on field sobriety tests, and his opinion that brauer was under
the influence of alcohol, and a technologist from a medical
laboratory presented testimony that she ran a blood alcohol con-
centration test on a sample of brauer’s blood and that the blood
alcohol content was .16 grams of alcohol per 100 milliliters of
his blood.
Although the district court subsequently found that the county
court erred in receiving the blood alcohol test result—an issue
that has not been presented for our review—at the conclusion of
the trial, the State had adduced sufficient evidence to support a
conviction under both theories of guilt presented by the State.
First, as noted below, there was sufficient evidence to support a
finding that brauer had been operating a motor vehicle “while
under the influence” of alcohol. Second, although basing its
case under the alternate theory on inadmissible evidence, the
State had adduced evidence to support a finding that brauer had
been driving while having an impermissible concentration of
alcohol in his blood. based upon that record, the county court
entered the judgment at issue.
The county court’s judgment essentially mirrors the language
set forth in the State’s complaint. The judgment indicates that
the court was finding brauer “guilty of operating and being
in actual physical control of a motor vehicle while under the
influence of alcoholic liquor or while he had” an impermissible
concentration of alcohol in his blood. The court also specifi-
cally indicated, in ruling that there was probable cause to arrest
brauer, that it had found Trooper Connelly’s testimony to be
“credible, consistent with previous testimony and . . . supported
by the visual evidence in [a videotape of the stop].”
based on the entire record, we conclude that the county
court’s judgment was a finding that the State had adduced suf-
ficient evidence to support a conviction under both theories of
guilt. As such, we find no merit to brauer’s assertion that the
case should be remanded for entry of a new judgment.
2. pretrial motions
brauer also argues that the district court erred in uphold-
ing the county court’s rulings on several of brauer’s pretrial
motions. Specifically, prior to trial, brauer moved in limine to
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Cite as 16 Neb. App. 257

prevent the State from adducing evidence of the preliminary
breath test result and moved to suppress statements that he
made prior to being arrested and without Miranda warnings.
We find that the county court properly received the preliminary
breath test result only on the issue of whether there was prob-
able cause to arrest brauer. We also find that the court properly
overruled brauer’s motion to suppress, because he was not in
custody at the time of the statements and therefore was not
entitled to Miranda warnings.
First, brauer argues in his brief that he objected to the State’s
questioning of Trooper Connelly concerning whether the pre-
liminary breath test result was above or below the legal limit
and that the county court erred in admitting “such evidence . . .
as part of the evidence upon which the trial court apparently
relied in finding [brauer] guilty of [DUI].” brief for appellant
at 13. The record indicates, however, that the court did not
receive the result as substantive evidence of brauer’s guilt or
innocence. Rather, when brauer objected, the court inquired
of the State why the evidence was being offered and the State
responded that it was being offered only on the issue of prob-
able cause to arrest brauer. The court specifically indicated that
the result was being received only for purposes of the arrest. As
such, there is no merit to brauer’s assertion that the preliminary
breath test result was improperly received, as the court received
the result solely on the issue of probable cause.
Second, brauer asserts that the county court erred in deny-
ing his motion to suppress statements, because, according to
brauer, the roadside detention of brauer became a custodial
interrogation requiring Miranda warnings. We conclude that
Trooper Connelly’s questioning of brauer in the present case
constituted on-the-scene questioning and investigation, not cus-
todial interrogation, and that Miranda warnings were therefore
not required.
In Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16
L. ed. 2d 694 (1966), the U.S. Supreme Court established
procedural safeguards to protect a citizen’s right against self-
incrimination. However, the Miranda decision distinguished
preliminary investigation from custodial interrogation. Miranda
applies only to interrogations initiated by law officers after a
264 	16 NebRASkA AppeLLATe RepORTS

person has been taken into custody or deprived of his freedom
in any significant way. State v. Holman, 221 Neb. 730, 380
N.W.2d 304 (1986). “‘The Miranda procedures . . . were not
meant to preclude law enforcement personnel from performing
their traditional investigatory functions such as general on-
the-scene questioning . . . .’” Id. at 736, 380 N.W.2d at 309,
quoting State v. Bennett, 204 Neb. 28, 281 N.W.2d 216 (1979).
Thus, “‘In on-the-scene investigations the police may interview
any person not in custody and not subject to coercion for the
purpose of determining whether a crime has been committed
and who committed it.’” State v. Holman, 221 Neb. at 736, 380
N.W.2d at 309, quoting State v. Dubany, 184 Neb. 337, 167
N.W.2d 556 (1969).
[6,7] Upon stopping a vehicle for a traffic violation, it is law-
ful to detain the driver while checking the registration and the
license of the driver. State v. Holman, supra. Roadside question-
ing of a driver detained pursuant to a routine traffic stop does not
constitute custodial interrogation for purposes of Miranda. State
v. Holman, supra. Instead, there must be some further action or
treatment by the police to render a driver in custody and entitled
to Miranda warnings. State v. Holman, supra.
In State v. Holman, the defendant was initially stopped for a
traffic violation. Upon approaching the defendant’s vehicle to
investigate the traffic stop, an officer noticed that the vehicle’s
trunk lid was up and that there were four new, large tires stacked
in the trunk. The officer asked the defendant questions about the
tires, unrelated to the initial traffic stop, and placed the defend-
ant in the back seat of his cruiser while he ran a driver’s his-
tory check, a warrants check, and a registration check. prior to
trial, the defendant sought to suppress testimony concerning her
answers and silence in response to the officer’s questions about
the tires and argued that she had been placed in custody and
not given Miranda warnings. The Nebraska Supreme Court held
that there was no custodial interrogation and that the officer’s
actions amounted to on-the-scene investigation and questioning
and did not require Miranda warnings.
In the present case, brauer was initially stopped for a traffic
violation. Upon contact with brauer, Trooper Connelly detected
an odor of alcohol, and brauer acknowledged having been
STATe V. bRAUeR 	265
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drinking. Trooper Connelly placed brauer in the cruiser to con-
duct on-the-scene investigation and questioning, based on his
reasonable, articulable suspicion that brauer might have been
driving while intoxicated. We conclude that the county court did
not err in denying brauer’s motion to suppress his statements.
This assigned error is without merit.
3. sufficiency of eVidence
Finally, brauer argues that the evidence adduced at trial was
insufficient to support his conviction. brauer’s argument in
this regard appears to depend heavily on the assertions of error
discussed above, that the county court’s order was ambiguous
and that the county court erred in allowing evidence of the pre-
liminary breath test result and in denying his motion to suppress
statements. In addition to finding no merit to those assertions,
we also find that there was sufficient evidence to support a con-
viction for DUI.
A violation of § 60-6,196 is one offense which can be proven
in more than one way. State v. Baue, 258 Neb. 968, 607 N.W.2d
191 (2000). Section 60-6,196 provides that a person may be
guilty of DUI if the evidence establishes that the person oper-
ated a motor vehicle while under the influence of alcohol or
while having an impermissible blood or breath alcohol content.
After sufficient foundation is laid, a law enforcement officer
may testify that in his or her opinion, a defendant was driving
while intoxicated. State v. Baue, supra.
In this case, as noted above, Trooper Connelly, after sufficient
foundation was laid concerning his background and experience,
testified concerning his observations of brauer. Trooper Connelly
testified that there was an odor of alcohol on brauer’s breath,
that brauer’s eyes were bloodshot and watery, and that brauer
demonstrated signs of intoxication during field sobriety tests. In
addition, brauer acknowledged consuming four beers prior to
driving. This evidence, viewed in a light most favorable to the
State, is sufficient to support a finding that brauer was driving
while intoxicated. This assignment of error is without merit.
V. CONCLUSION
We find no merit to brauer’s assignments of error on appeal.
We find, when considering the entire record, that the county
266 	16 NebRASkA AppeLLATe RepORTS

court’s judgment was a judgment of guilt on both theories of
DUI advanced in the State’s complaint. We find no error con-
cerning the county court’s denial of brauer’s pretrial motions,
and we find the evidence was sufficient to support the convic-
tion. As such, we affirm.
affirmed .
J erome g. heppler , appellee , V.
omaha cable , inc ., appellant .
743 N.W.2d 383
Filed December 18, 2007. 	No. A-07-365.
1. Workers’ Compensation: Appeal and Error. pursuant to Neb. Rev. Stat.
§ 48-185 (Reissue 2004), an appellate court may modify, reverse, or set aside
a Workers’ Compensation Court decision only when (1) the compensation court
acted without or in excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is no sufficient competent evidence in the record to
warrant the making of the order, judgment, or award; or (4) the findings of fact
by the compensation court do not support the order or award.
2. ____: ____. Upon appellate review, the findings of fact made by the trial judge of
the compensation court have the effect of a jury verdict and will not be disturbed
unless clearly wrong.
3. ____: ____. An appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law.
4. Jurisdiction: Appeal and Error. before reaching the legal issues presented for
review, it is the duty of an appellate court to settle jurisdictional issues presented
by a case.
5. Final Orders: Appeal and Error. A party may appeal from a court’s order only
if the decision is a final, appealable order.
6. ____: ____. Final orders include an order affecting a substantial right made during
a special proceeding.
7. Workers’ Compensation: Final Orders: Appeal and Error. Special proceedings
include workers’ compensation cases.
8. Workers’ Compensation: Employer and Employee. As a general rule, an
employer may not unilaterally terminate a workers’ compensation award of
indefinite temporary total disability benefits absent a modification of the award
of benefits.
9. Statutes: Appeal and Error. Appellate courts give statutory language its plain
and ordinary meaning and will not resort to interpretation to ascertain the meaning
of statutory words which are plain, direct, and unambiguous.
10. Statutes. It is not within the province of a court to read a meaning into a statute
that is not warranted by the language; neither is it within the province of a court
to read anything plain, direct, and unambiguous out of a statute.
HeppLeR V. OMAHA CAbLe 	267
Cite as 16 Neb. App. 267