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State v. Vasquez1/21/2003
it hit the building. After the accident, Steinmark returned the motorcycle to his shop and placed pans under it because it was leaking oil.
Steinmark's version of the accident was contradicted at trial by Sesna, who testified that Steinmark told him that Vasquez got on the motorcycle and proceeded to do a "power stand" by spinning the rear tire of the motorcycle while holding the front brake. This testimony by Sesna was admitted over Vasquez' hearsay objection. Following this testimony, the court cautioned the jury that the testimony had been received for the purpose of judging Steinmark's credibility but was not evidence of what actually occurred.
Vasquez filed a motion to suppress the results of any chemical test of his blood, which motion was overruled prior to trial, and a jury trial was conducted on December 10 and 11, 2001. Following the trial, the jury found Vasquez guilty of DUI. At the sentencing and enhancement hearing on March 14, 2002, the district court received evidence of two prior convictions, over objection; found that the present conviction was for a third offense, making the crime a Class W misdemeanor; and sentenced Vasquez accordingly. This appeal timely followed.
ASSIGNMENTS OF ERROR
Vasquez asserts that the district court erred in (1) failing to sustain his motion to suppress, (2) failing to sustain his motion to dismiss, (3) failing to declare a mistrial, (4) receiving the test results showing his blood alcohol content, and (5) receiving exhibits 111 through 114 and enhancing his DUI conviction.
STANDARD OF REVIEW
When reviewing a trial court's ruling on a motion to suppress evidence, an appellate court does not reweigh the evidence or resolve conflicts in the evidence, but, rather, recognizes the trial court as the finder of fact and takes into consideration that it observed the witnesses. State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002). In reviewing a district court's ruling on a motion to suppress evidence obtained through a warrantless search or seizure, an appellate court conducts a de novo review of reasonable suspicion and probable cause determinations, and reviews factual findings for clear error, giving due weight to the inferences drawn from those facts by the trial judge. State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001).
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, 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. State v. Johnson, 261 Neb. 1001, 627 N.W.2d 753 (2001).
The decision to grant a motion for mistrial is within the discretion of the trial court and will be upheld on appeal absent a showing of abuse of discretion. State v. Bao, 263 Neb. 439, 640 N.W.2d 405 (2002).
In all proceedings where the Nebraska Evidence Rules apply, admissibility of evidence is controlled by the Nebraska Evidence Rules, not judicial discretion, except in those instances under the rules when judicial discretion is a factor involved in determining admissibility. State v. Castor, 262 Neb. 423, 632 N.W.2d 298 (2001).
Where the Nebraska Evidence Rules commit the evidentiary question at issue to the dis
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