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State v. Taylor7/29/2003
felony," which is consistent with a violation of subsection (2) of § 28-905 rather than subsection (1).
Generally, to charge the defendant with the commission of a criminal offense, an information or complaint must allege each statutorily essential element of the crime charged, expressed in the words of the statute or in language equivalent to the statutory terms defining the crime charged. State v. Grimes, 246 Neb. 473, 519 N.W.2d 507 (1994), overruled on other grounds, State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). While Taylor does not raise this point as an issue on appeal, we do not believe the discrepancy in this instance constitutes plain error, because the substance of the information alleges each statutorily essential element of the crime charged, which was sufficient to inform Taylor of the charge being made against him.
When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, 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 reasonable doubt. State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003). 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 properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002).
An attempt to arrest is an essential element of the offense of fleeing in a motor vehicle to avoid arrest, but proof that the defendant actually committed the law violation for which the arrest was attempted is not required. State v. Clifford, 204 Neb. 41, 281 N.W.2d 223 (1979); State v. Carman, 10 Neb. App. 373, 631 N.W.2d 531 (2001). In State v. Clifford, supra, the Supreme Court stated that the offense of fleeing in a motor vehicle to avoid arrest is separate and distinct from any offense for which law enforcement officers were attempting to make the arrest, which proposition was again later articulated in State v. Carman, supra. Thus, the question is not whether the State proved that Taylor was guilty of theft, but, rather, whether the State proved an attempt to arrest as an essential element of the offense of operating a motor vehicle to avoid arrest.
The evidence shows that after Hattermann received confirmation from the police communications department that the vehicle in question was stolen, he coordinated with another officer located in the nearby area to assist him in making a felony stop of Taylor. After Hattermann located the vehicle, he activated his police cruiser's overhead emergency lights and siren, which then automatically turned on the video camera mounted on the dashboard of his police cruiser. The evidence shows that the officers attempted to stop the vehicle and that Taylor attempted to flee from the police. The videotape in Hattermann's cruiser was received into evidence and played for the jury. The videotape accurately depicted Hattermann's description of the events that occurred that evening. Finally, the most compelling evidence to prove the offense of fleeing in a motor vehicle to avoid arrest came from Taylor's own testimony, wherein he admitted that despite seeing the police cruisers behind him with their overhead emergency lights activated and hearing their sirens, he intentionally chose not to stop.
After viewing the evidence in the light most favorable to the State
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