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State v. Taylor7/29/2003
, we conclude that there was sufficient evidence to support Taylor's conviction for operating a motor vehicle to avoid arrest and that the State proved the essential element of its attempt to arrest Taylor.
Further, Taylor argues that the State failed to offer any evidence to show that Taylor violated a state law that constituted a felony. Section 28-905(2) states: "Any person who operates any motor vehicle to flee in such vehicle in an effort to avoid arrest for the violation of any law of the State of Nebraska constituting a felony commits the offense of felony operation of a motor vehicle to avoid arrest." While Taylor acknowledges that the State is not required to prove the underlying law violation, i.e., theft, he argues that "some articulable evidence" that the theft violation was a felony level theft is necessary. Brief for appellant at 10. Taylor cites to Neb. Rev. Stat. § 28-518(2) (Reissue 1995), the theft by receiving stolen property statute, which provides that the theft constitutes a Class IV felony when the value of the thing involved is $500 or more, but not over $1,500. Taylor argues that the State did not present any evidence both that the officer was pursuing Taylor for a theft charge and that the object of the theft was valued at more than $500.
While there is an absence of Nebraska case law that provides guidance concerning Taylor's argument that there should have been some articulable evidence that the theft violation was a felony level offense, the following is somewhat helpful in our analysis: In State v. Merritt, 805 S.W.2d 337 (Mo. App. 1991), the defendant was convicted of felony resisting arrest in connection with a deputy sheriff's attempt to arrest the defendant for the sale of marijuana. On appeal, the defendant alleged that there was insufficient evidence to sustain his conviction because the State did not establish that he was being arrested for a felony. In relevant part, the Missouri law under which the defendant was charged and convicted required that the resisting arrest charge could only be a felony offense if the underlying offense was a felony, with the relevant inquiry being whether there was evidence that the deputy, at the least, contemplated making a felony arrest on the ground that the defendant was guilty of the underlying felony offense. The Missouri Court of Appeals found that the testimony of the arresting officer regarding the arrest was sufficient to sustain the conviction.
We agree with Taylor that there must be some articulable evidence that the underlying violation for which he was fleeing to avoid arrest constituted a felony in order to convict him pursuant to § 28-905(2), as opposed to § 28-905(1), the misdemeanor operation of a motor vehicle to avoid arrest. As in Merritt, the testimony of Hartmann in the instant case regarding the arrest was sufficient to sustain Taylor's conviction. Hartmann testified that just prior to attempting to arrest Taylor, Hartmann received confirmation that the vehicle, a 2001 Chrysler Sebring, was stolen and thereafter contacted his supervisor to coordinate a felony stop. With regard to the value of the stolen vehicle, it is obvious that the value, at the very least, exceeded $500 based upon the fact that it was positively identified as a 2001 model vehicle and the incident occurred in October 2001. In addition, the vehicle portrayed in the videotape of the chase was that of a newer model convertible in good condition.
Therefore, viewing the evidence in the light most favorable to the State, there was sufficient evidence to show that the officers at the very least contemplated making a felony arrest, because they had received confirmation that Taylor was in possession of stolen propert
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