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State v. Mulinix9/14/2004
After a jury trial in Hall County, Nebraska, Curtis R. Mulinix was convicted on one count of driving with a revoked operator's license from previous driving under the influence (DUI) convictions, one count of driving without a valid registration, and one count of possessing an open alcoholic container in a vehicle. Mulinix appeals from his convictions and sentences, alleging that insufficient evidence existed to sustain any of the convictions and that his sentences were excessive. For the reasons set forth herein, we affirm.
II. STATEMENT OF FACTS
On May 14, 2002, Mulinix was charged by information with one count of driving with a revoked operator's license from previous DUI convictions, a Class IV felony; one count of driving without a valid registration, a Class III misdemeanor; and one count of possessing an open alcoholic container in a vehicle, a traffic infraction.
A jury trial was held February 11, 2003. The State's only witness was Grand Island police officer James Colgan. Officer Colgan testified that he had been employed as a police officer for 7 years, that he had trained at the Nebraska Law Enforcement Training Center, and that he had attended numerous other training sessions. Officer Colgan said that on March 5, 2002, he was working at approximately 4:10 in the afternoon when he responded to a call in reference to a theft from a vehicle. Officer Colgan testified that he observed a vehicle matching the description of the suspect vehicle, initiated a stop of the vehicle, contacted the vehicle's driver and passengers, and asked them for identification. He stated that the driver was unable to provide identification, but that by speaking with the driver, Officer Colgan learned that the driver was Mulinix.
Officer Colgan testified that he then conducted an investigation into Mulinix's driving privileges and found out that Mulinix's "license was suspended in the State of Nebraska." Officer Colgan stated that because Mulinix was unable to provide registration for the vehicle he was driving, he was issued a citation, and that Mulinix was then placed under arrest "for driving during suspension and an open container which was found in the vehicle." Officer Colgan testified that an open container was "located in between the front two seats of the vehicle adjacent to the driver's-side right rear corner [and that i]t was a container of alcohol, beer." Officer Colgan noted that the container was "partially empty" and that all of the events he described during his testimony occurred in Hall County.
On cross-examination, Officer Colgan admitted that Mulinix had provided "a registration as well as a bill of sale [for the vehicle], which was beyond the 30-day scope." Officer Colgan noted that he had seized the registration produced by Mulinix but that he did not have it with him at the trial. Officer Colgan also admitted that while he remembered that the open container was "labeled as a container of alcohol or beer," he could not recall the brand of beer. He testified that he thought it was beer because the odor of an alcoholic beverage that I associate with beer came from the can, and when I dumped it out, the consist-ency of the liquid within the container also appeared to be an alcoholic beverage, beer, and as it hit the pavement along the curb, it foamed in a manner consistent with beer.
He also stated that he retained the can until it could be photo-graphed, at which time the can was thrown away. However, he did not bring the photograph of the container with him to the trial. Finally, Officer Colgan testified that he was familiar with what beer looked and smelled like and that while nonalcoholic beer looks and foams like beer, he did not believe it smelled the
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