State v. Matit

STATE v. MATIT 	163
Cite as 288 Neb. 163
State of NebraSka, appellee, v.
DaNiel D. M atit, alSo kNowN
aS Yai bol, appellaNt.
846 N.W.2d 232
Filed May 16, 2014. 	No. S-13-318.
1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
Error. In reviewing a trial court’s ruling on a motion to suppress based on a
claimed violation of the Fourth Amendment, an appellate court applies a two-part
standard of review. Regarding historical facts, the appellate court reviews the trial
court’s findings for clear error, but whether those facts trigger or violate Fourth
Amendment protections is a question of law that the appellate court reviews inde-
pendently of the trial court’s determination.
2. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard is the same: An appellate 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. The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a rea-
sonable doubt.
3. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
4. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution protect individuals
against unreasonable searches and seizures by the government.
5. Arrests: Search and Seizure: Probable Cause: Words and Phrases. An arrest
is a highly intrusive detention (seizure) of a person that must be justified by prob-
able cause.
6. Warrantless Searches: Probable Cause: Police Officers and Sheriffs. Probable
cause to support a warrantless arrest exists only if the officer has knowledge at
the time of the arrest, based on information that is reasonably trustworthy under
the circumstances, that would cause a reasonably cautious person to believe that
a suspect has committed or is committing a crime.
7. Probable Cause: Words and Phrases. Probable cause is a flexible, common-
sense standard that depends on the totality of the circumstances.
8. Probable Cause: Police Officers and Sheriffs. Probable cause is not defeated
because an officer incorrectly believes that a crime has been or is being com-
mitted. But implicit in the probable cause standard is the requirement that a law
enforcement officer’s mistakes be reasonable.
9. Probable Cause: Appeal and Error. An appellate court determines whether
probable cause existed under an objective standard of reasonableness, given the
known facts and circumstances.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:35 AM CST

164 	288 NEBRASKA REPORTS
10. Drunk Driving: Circumstantial Evidence. Circumstantial evidence may serve
to establish the operation of a motor vehicle for purposes of Nebraska’s driving
under the influence statutes.
11. 	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.
12. Sentences: Appeal and Error. Where a sentence imposed within the 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
the relevant factors as well as any applicable legal principles in determining the
sentence to be imposed.
Appeal from the District Court for Lancaster County: paul
D. M erritt, Jr., Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, Jennifer
Houlden, and, on brief, Elizabeth D. Elliott, and Claire K.
Bazata, Senior Certified Law Student, for appellant.
Jon Bruning, Attorney General, George R. Love, and Joel R.
Rische, Senior Certified Law Student, for appellee.
H eavicaN, c.J., wrigHt, coNNollY, StepHaN, MccorMack,
M iller-lerMaN, and caSSel, JJ.
StepHaN, J.
Daniel D. Matit, also known as Yai Bol, was charged with
and convicted of fourth-offense driving while under the influ-
ence (DUI). Matit was sentenced to a term of imprisonment of
2 to 3 years and his driver’s license was revoked for 15 years.
He appeals his conviction and sentence. Finding no reversible
error, we affirm.
BACKGROUND
At approximately 1 a.m. on March 5, 2012, Sgt. Benjamin
Miller of the Lincoln Police Department was conducting sur-
veillance in a marked police car in the area of 13th and E
Streets in Lincoln, Nebraska. Miller’s car was parked about 11⁄2
blocks east of an apartment complex he was watching. Miller
saw a vehicle parked on a concrete drive between the street

STATE v. MATIT 	165
Cite as 288 Neb. 163
and the sidewalk in what Miller referred to as “the city right of
way” in front of the apartment complex. At various times, he
saw people approach the vehicle.
On five separate occasions, Miller observed the taillights
of the vehicle come on and saw exhaust coming from the
tailpipe, making him believe the vehicle had been started, as
if to drive away. Each time, the vehicle’s engine stayed on
for a few minutes, but the vehicle did not move. Miller also
saw a person who had been seated in the driver’s seat exit
the vehicle, urinate on a nearby tree, and then return to the
vehicle.
Based on his observations, Miller made contact with the
person in the vehicle, who provided identification demon-
strating that he was Matit. Miller later learned that Matit also
uses the name “Yai Bol” and that the vehicle was registered
to Bol. Miller noticed that Matit’s eyes were bloodshot and
watery and that there was a strong odor of alcoholic beverage
about Matit’s person. In addition, Matit’s speech was slurred
and his dexterity was poor. Miller asked Matit to get out of
the car, and when Matit did not cooperate, Miller opened the
door and helped him out of the vehicle. As they approached
Miller’s police car, Miller noticed that Matit stumbled and
staggered. Miller administered the horizontal gaze nystagmus
test to Matit and observed impairment. Miller did not ask
Matit to complete additional standardized field sobriety tests,
because Matit was uncooperative and Miller was concerned
about safety. Miller asked Matit to take a preliminary breath
test. Matit refused, and Miller transported him to a detoxifica-
tion center. After Matit was placed under arrest, he provided
a breath sample. The test showed Matit’s blood alcohol level
was .216.
Matit was charged by information in Lancaster County
District Court with DUI, over .15 concentration, and three
prior convictions. One of the prior offenses was alleged to have
occurred in Hall County, Nebraska, and the other two were
alleged to have occurred in Vermont.
Matit filed a motion to suppress in which he asserted that
police “lacked probable cause to contact, stop, detain, and/or
arrest” him. He generally argued that Miller was not justified

166 	288 NEBRASKA REPORTS
in pursuing a DUI investigation after contacting him, because
he was parked on private property. After conducting a sup-
pression hearing, the district court entered an order denying
the motion. The court found that Matit’s vehicle was “parked
in virtually the middle of that portion of the concrete drive
located between the street and the sidewalk (i.e., in the pub-
lic right-of-way), facing towards the courtyard of the apart-
ment complex.” After considering this court’s decisions in
State v. Prater1 and State v. McCave2 the court reasoned that
whether the concrete drive was open to public access was a
fact question to be addressed by the jury, thus implicitly find-
ing that Miller’s belief the drive was open to public access
was reasonable.
The case proceeded to trial, at which Miller testified as a
witness for the State as summarized above, and Matit testified
in his own behalf. Matit acknowledged that he also uses the
name “Yai Bol.” He testified that on March 5, 2012, he visited
a friend at the 13th and E Streets location and remembered sit-
ting in the vehicle in the drive, but he did not remember start-
ing the vehicle. He said the vehicle was never moved while he
was there. He was drinking beer that night, starting at 11 p.m.
while at a friend’s house. Although he admitted he was intoxi-
cated, Matit denied drinking any alcohol in the car. He also
denied urinating on a tree.
The jury found Matit guilty of DUI with a concentration
of more than .15 of 1 gram or more by weight of alcohol per
210 liters of his breath at the time he was operating or in the
actual physical control of a motor vehicle. After an enhance-
ment hearing, the court entered an order finding Matit had
two prior convictions for DUI, making the current conviction
a third offense. Four days later, the court entered an order
“nunc pro tunc,” finding that Matit had three prior convic-
tions for DUI, making the current conviction a fourth offense.
Matit was sentenced to a term of 2 to 3 years in prison, to
be served consecutively to his sentences in another case, and
1 State v. Prater, 268 Neb. 655, 686 N.W.2d 896 (2004).
2 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).

STATE v. MATIT 	167
Cite as 288 Neb. 163
his driver’s license was revoked for 15 years. He filed this
timely appeal.
ASSIGNMENTS OF ERROR
Matit assigns, restated, (1) that the district court erred in
overruling his motion to suppress for lack of probable cause to
arrest because his vehicle was on private property not open to
public access, (2) that the evidence was insufficient to support
his conviction, (3) that the district court erred in ruling that
two prior convictions could be used for sentence enhancement,
(4) that the district court erred in issuing an order nunc pro
tunc which changed the number of prior convictions from two
to three, and (5) that the district court abused its discretion by
imposing an excessive sentence.
STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review.
Regarding historical facts, we review the trial court’s findings
for clear error, but whether those facts trigger or violate Fourth
Amendment protections is a question of law that we review
independently of the trial court’s determination.3
[2] In reviewing a sufficiency of the evidence claim, whether
the evidence is direct, circumstantial, or a combination thereof,
the standard is the same: An appellate 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.
The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.4
[3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.5
3 State v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013).
4 State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013).
5 State v. Sikes, 286 Neb. 38, 834 N.W.2d 609 (2013).

168 	288 NEBRASKA REPORTS
ANALYSIS
probable cauSe for arreSt
Nebraska’s DUI statutes do not apply to operation or con-
trol of a vehicle on private property that is not open to public
access.6 Matit contends that Miller lacked probable cause to
arrest him because his vehicle was parked on private property
that was not open to public access at all relevant times.
[4-6] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution protect individuals
against unreasonable searches and seizures by the government.7
An arrest is a highly intrusive detention (seizure) of a per-
son that must be justified by probable cause.8 Probable cause
to support a warrantless arrest exists only if the officer has
knowledge at the time of the arrest, based on information that
is reasonably trustworthy under the circumstances, that would
cause a reasonably cautious person to believe that a suspect has
committed or is committing a crime.9
[7-9] Probable cause is a flexible, commonsense standard
that depends on the totality of the circumstances.10 Probable
cause is not defeated because an officer incorrectly believes
that a crime has been or is being committed.11 But implicit
in the probable cause standard is the requirement that a law
enforcement officer’s mistakes be reasonable.12 We determine
6 Neb. Rev. Stat. § 60-6,108(1) (Reissue 2010); State v. McCave, supra
note 2.
7 State v. McCave, supra note 2; State v. Smith, 279 Neb. 918, 782 N.W.2d
913 (2010).
8 State v. McCave, supra note 2. See, also, State v. Hedgcock, 277 Neb. 805,
765 N.W.2d 469 (2009).
9 State v. McCave, supra note 2. See, also, State v. Eberly, 271 Neb. 893,
716 N.W.2d 671 (2006); State v. Ball, 271 Neb. 140, 710 N.W.2d 592
(2006) (citing Beck v. State of Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed.
2d 142 (1964)); State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000).
10 State v. McCave, supra note 2. See, also, State v. Smith, supra note 7; State
v. DeGroat, 244 Neb. 764, 508 N.W.2d 861 (1993).
11 State v. McCave, supra note 2. See, also, State v. Smith, supra note 7.
12 State v. McCave, supra note 2. See, also, Brinegar v. United States, 338
U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).

STATE v. MATIT 	169
Cite as 288 Neb. 163
whether probable cause existed under an objective standard of
reasonableness, given the known facts and circumstances.13
The key inquiry in this case is whether it was reasonable
for Miller to conclude that Matit’s vehicle was situated on
property which was open to public access. We considered
the question of whether a roadway was open to public access
in State v. Prater14 and State v. McCave,15 reaching a differ-
ent result in each case. In Prater,16 the defendant was found
slumped over in the driver’s seat of a vehicle with its engine
running in an apartment complex parking lot. He was charged
with violating an Omaha city ordinance that was substan-
tially the same as § 60-6,108(1) in that it applied “‘anywhere
throughout the city except private property which is not open
to public access.’”17 We stated that property is “‘“open to
public access”’” if the public has permission or the ability to
enter and noted that this was primarily a question of fact.18 We
concluded that the trial court did not err in finding that the
city ordinance applied to the parking lot, which was also used
by maintenance workers and guests of residents, and thus was
open to public access.
In McCave,19 the defendant’s vehicle was parked in a resi-
dential driveway, with a portion of the vehicle overhanging the
sidewalk. We held that the residential driveway was not open
to public access as a matter of law because it met the statu-
tory definition of “private road or driveway,” i.e., a “‘way or
place in private ownership and used for vehicular travel by the
owner and those having express or implied permission from the
owner but not by other persons.’”20 We further reasoned that
13 Id.
14 State v. Prater, supra note 1.
15 State v. McCave, supra note 2.
16 State v. Prater, supra note 1.
17 Id. at 657, 686 N.W.2d at 898 (emphasis omitted).
18 Id. at 658, 686 N.W.2d at 898.
19 State v. McCave, supra note 2.
20 Id. at 515, 805 N.W.2d at 307, quoting Neb. Rev. Stat. § 60-649 (Reissue
2010).

170 	288 NEBRASKA REPORTS
this characterization was not affected by the fact the vehicle
overhung the sidewalk, because the sidewalk was not intended
for use by vehicles.
Matit’s vehicle was parked on a paved area between the
sidewalk and the street. The arresting officer testified that he
understood this area was a part of the city’s right-of-way. He
also testified that he had observed the area on other occasions
and had seen vehicles park in and then leave the paved area.
He understood the paved area was so used by both residents
of the apartment complex and nonresidents. Based on this evi-
dence, the district court did not err in finding that Miller had a
reasonable belief that the vehicle was situated on property that
was open to public access.
Miller was justified in approaching the vehicle after observ-
ing the driver exit the vehicle and urinate on a tree, which was
an unlawful act. When Miller encountered Matit in an intoxi-
cated state, he had probable cause for the arrest because he had
observed Matit start the vehicle on several occasions while it
was situated on what the officer reasonably believed to be a
part of a public roadway. The district court did not err in deny-
ing Matit’s motion to suppress.
SufficieNcY of eviDeNce
The State charged Matit with violating Neb. Rev. Stat.
§ 60-6,196 (Reissue 2010) by operating or being in actual
physical control of a motor vehicle upon a highway or any-
where throughout the state except for private property not open
to public access while under the influence of alcohol, or with
a concentration of .08 of 1 gram or more by weight of alcohol
per 210 liters of his breath. Matit does not dispute the fact that
he had a breath alcohol concentration in excess of the lawful
limit at the time of his arrest. But he challenges the sufficiency
of the evidence to support his conviction on the ground that
the State did not prove that he operated or was in actual physi-
cal possession of a motor vehicle on a roadway or other area
to which the public had access. Our standard of review with
respect to this claim is very narrow, in that we must find the
evidence to be sufficient if there is any evidence, when viewed
in a light favorable to the prosecution, upon which a rational

STATE v. MATIT 	171
Cite as 288 Neb. 163
finder of fact could conclude that the State met its burden of
proof beyond a reasonable doubt.21
The evidence with respect to Matit’s operation or physical
control of the vehicle came primarily from the testimony of
Miller. He testified that on five separate occasions, he saw
Matit start the parked vehicle. Miller could tell the vehicle
had been started, because the headlights and taillights came on
and exhaust came out of the tailpipe. Each time, the vehicle’s
engine ran for a few minutes and was then turned off. When
Miller approached the vehicle, he saw the ignition keys near
the console next to the driver’s seat.
[10] Circumstantial evidence may serve to establish the
operation of a motor vehicle for purposes of the DUI statutes.22
And we have recognized that starting a vehicle is an act within
the meaning of “operating” a motor vehicle.23 Viewing the evi-
dence in this case in a light most favorable to the State, as our
standard of review requires, we conclude that there was evi-
dence upon which a rational finder of fact could conclude that
Matit was operating or in actual physical control of the vehicle
immediately prior to his arrest.
Miller testified at trial, as he did at the suppression hearing,
that Matit’s vehicle was situated on the paved area between
the street and the sidewalk. He testified that based upon
his understanding of the laws and ordinances of the city of
Lincoln, the area where the vehicle was parked was a public
right-of-way owned by the city of Lincoln. He testified that
no portion of Matit’s vehicle impeded the sidewalk. Miller
also testified that the area between the street and the sidewalk
was open to both pedestrian and vehicular traffic. Whether
Matit’s vehicle was situated on property open to public access
was a question of fact.24 There was sufficient evidence upon
which a rational finder of fact could resolve that question
21 State v. Wiedeman, supra note 4.
22 See, State v. Portsche, 261 Neb. 160, 622 N.W.2d 582 (2001); State v.
Hanger, 241 Neb. 812, 491 N.W.2d 55 (1992).
23 State v. Portsche, supra note 22.
24 See State v. Prater, supra note 1.

172 	288 NEBRASKA REPORTS
in the affirmative and, thus, sufficient evidence to support
the conviction.
exceSSive SeNteNce
Matit argues that the sentence imposed on him is excessive.
He was sentenced to a term of 2 to 3 years in prison, to be
served consecutively to his sentences in another DUI case. His
driver’s license was also revoked for 15 years.
Matit was found guilty of a Class III felony,25 which carries
a minimum sentence of 1 year in prison and a maximum of 20
years in prison, a $25,000 fine, or both.26 His sentence falls
within the statutory range for a Class III felony.
[11,12] 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 com-
mission of the crime.27 Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appel-
late court must determine whether the sentencing court abused
its discretion in considering and applying the relevant factors
as well as any applicable legal principles in determining the
sentence to be imposed.28 An appellate court will not disturb a
sentence imposed within the statutory limits absent an abuse of
discretion by the trial court.29
The presentence report indicates that Matit has filed two
other appeals. One was recently resolved by this court in State
v. Bol,30 when we affirmed his convictions for DUI, refusal to
take a chemical test, and driving during revocation. The other
was decided by the Nebraska Court of Appeals and involved
25 Neb. Rev. Stat. § 60-6,197.03(8) (Cum. Supp. 2012).
26 Neb. Rev. Stat. § 28-105 (Cum. Supp. 2012).
27 State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).
28 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).
29 State v. Sikes, supra note 5.
30 State v. Bol, ante p. 144, 846 N.W.2d 241 (2014).

STATE v. MATIT 	173
Cite as 288 Neb. 163
a conviction for criminal impersonation, a Class IV felony.31
Matit’s criminal history also includes a DUI in Vermont in
2005, for which he was incarcerated for 6 to 11 months; a DUI
in Texas in 2008, disposition unknown; possession of cocaine
and providing false information to a police officer in Vermont
in 2009, for which he was fined $5,500 and ordered to serve
11⁄2 to 21⁄2 years in prison, but the sentences were suspended; a
DUI and refusal to submit to a chemical test in Hall County in
2011, for which he was fined and placed on probation; and a
third-offense DUI in Lancaster County in 2011, for which he
was sent to jail for 120 days. He was also convicted of third
degree domestic assault in Hall County in 2012 and was sen-
tenced to 60 days in jail.
The sentence imposed by the trial court was within the
statutory limits for a Class III felony. Based on Matit’s criminal
record and considering all of the relevant sentencing factors,
we conclude the district court did not abuse its discretion in
imposing the sentence.
prior coNvictioNS aND
orDer NuNc pro tuNc
Matit argues the district court erred in using two prior
Vermont convictions to enhance his sentence and in issuing an
order nunc pro tunc changing the number of prior convictions
from two to three. Both of these assignments of error arise
from proceedings that were consolidated at trial with proceed-
ings involving a separate DUI prosecution of Matit. The appeal
from that separate prosecution was resolved by this court in
State v. Bol,32 and in that opinion, we concluded identical
assignments of error were without merit. We reach the same
conclusion here.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court.
affirMeD.
31 State v. Bol, 21 Neb. App. 931, 845 N.W.2d 606 (2014).
32 State v. Bol, supra note 30.