State v. McCave

[5,6] A judgment entered during the pendency of a crimi-
nal cause is final when no further action is required to com-
pletely dispose of the cause pending.10 The test of finality of
an order or judgment for the purpose of appeal is whether the
particular proceeding or action was terminated by the order
or judgment.11
The September 16, 2010, order did not terminate the pro-
ceedings below, and further action is required to completely
dispose of the cause in the district court. The competency order
entered by the district court was therefore not a final order
as required by § 29-2315.01, and the State’s application was
premature. The State failed to comply with the jurisdictional
requirements of § 29-2315.01. Therefore, we lack jurisdiction
over the present appeal.
CONCLUSION
Because the State did not appeal from a final order as
required by § 29-2315.01, we lack jurisdiction over this appeal.
When an appellate court is without jurisdiction to act, the
appeal must be dismissed.12 Accordingly, the State’s appeal
is dismissed.
A ppeAl dismissed.
10 State v. Dunlap, supra note 6.
11 Id.
12 Id.
stAte of NebrAskA, Appellee , v.
Jeffrey mccAve , AppellANt.
805 N.W.2d 290
Filed October 14, 2011. 	No. S-10-232.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case
from the county court, the district court acts as an intermediate court of appeals,
and its review is limited to an examination of the record for error or abuse of
discretion.
2. Courts: Appeal and Error. Both the district court and a higher appellate
court generally review appeals from the county court for error appearing on
the record.
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www.nebraska.gov/apps-courts-epub/
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3. Judgments: Appeal and Error. When reviewing a judgment for errors appearing
on the record, an appellate court’s inquiry is whether the decision conforms to the
law, is supported by competent evidence, and is neither arbitrary, capricious, nor
unreasonable.
4. Appeal and Error. An appellate court independently reviews questions of law in
appeals from the county court.
5. Criminal Law: Courts: Appeal and Error. When deciding appeals from crimi-
nal convictions in county court, an appellate court applies the same standards
of review that it applies to decide appeals from criminal convictions in dis-
trict court.
6. Jurisdiction: Final Orders: Appeal and Error. An appellate court does not
acquire jurisdiction of an appeal unless a party is appealing from a lower tribu-
nal’s final order or judgment.
7. Jurisdiction: Appeal and Error. If the district court, sitting as an intermediate
appellate court, lacked jurisdiction over a party’s appeal, a higher appellate court
also lacks jurisdiction to decide the merits of the appeal.
8. ____: ____. An appellate court determines jurisdictional questions that do not
involve a factual dispute as a matter of law.
9. Criminal Law: Final Orders. Generally, an order entered during the pendency
of a criminal case is final only when no further action is required to completely
dispose of the pending case.
10. Criminal Law: Final Orders: Sentences. Before a criminal conviction is a final
judgment, the trial court must pronounce sentence.
11. Final Orders: Indictments and Informations: Motions for Mistrial. No final
judgment occurs when a trial court declares a mistrial that applies to every count
in the charging instrument.
12. Constitutional Law: Criminal Law: Appeal and Error. Neb. Const. art. I, § 23,
guarantees the right to appeal in all felony cases.
13. Constitutional Law: Criminal Law: Due Process: Appeal and Error. Although
the U.S. Constitution does not guarantee the right to appeal a criminal conviction,
if a state provides an appeal as a matter of right, its appellate procedures must
comport with due process.
14. Indictments and Informations: Joinder: Motions for Mistrial: Appeal and
Error. When the trial court has declared a mistrial as to one or more counts in
a multicount charging instrument, those counts should be treated as severed—to
be resolved in a new proceeding. The defendant may appeal his conviction and
sentence without waiting until a court enters judgment on every count.
15. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Appeal and Error. In reviewing a trial court’s ruling on a motion to sup-
press based on the Fourth Amendment, an appellate court will uphold its findings
of fact unless they are clearly erroneous. But an appellate court reviews de novo
the trial court’s ultimate determinations of reasonable suspicion to conduct an
investigatory stop and probable cause to perform a warrantless search.
16. 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.
STATe v. mcCAve 	501
Cite as 282 Neb. 500

17. 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.
18. 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.
19. Probable Cause: Words and Phrases. probable cause is a flexible, common-
sense standard that depends on the totality of the circumstances.
20. Probable Cause: Police Officers and Sheriffs. probable cause is not defeated
because an officer incorrectly believes that a crime has been or is being
committed.
21. ____: ____. Implicit in the probable cause standard is the requirement that a law
enforcement officer’s mistakes be reasonable.
22. 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.
23. Drunk Driving. Under Neb. rev. Stat. § 60-6,108(1) (reissue 2008), Nebraska’s
driving under the influence statutes do not apply to a person’s operation or con-
trol of a vehicle on private property that is not open to public access.
24. Words and Phrases. Under Neb. rev. Stat. § 60-649 (reissue 2010), a residen-
tial driveway is not private property that is open to public access.
25. Drunk Driving. Criminal liability under Neb. rev. Stat. § 60-6,196 (reissue
2010) does not extend to intoxicated persons in control of a vehicle on a residen-
tial driveway, regardless of whether part of the vehicle crosses a sidewalk.
26. Drunk Driving: Circumstantial Evidence. In driving under the influence cases,
circumstantial evidence can establish a person’s operation of a motor vehicle.
27. Criminal Law: Eyewitnesses: Presumptions. A citizen informant who has per-
sonally observed the commission of a crime is presumptively reliable.
28. Constitutional Law: Arrests: Police Officers and Sheriffs. Before officers
invoke the power of a warrantless arrest, the Fourth Amendment requires them to
investigate the basic evidence for the suspected offense and reasonably question
witnesses readily available at the scene, at least when exigent circumstances do
not exist. This is particularly true when the circumstances the officers encounter
are consistent with lawful conduct.
29. Arrests: Evidence. An illegal arrest does not bar the State from prosecuting a
defendant for the charged offenses with evidence that was untainted by the ille-
gal arrest.
30. Evidence: Appeal and Error. The improper admission of evidence, even tainted
evidence, is a trial error subject to harmless error analysis.
31. Trial: Evidence: Appeal and Error. An erroneous admission of evidence is
prejudicial to a defendant unless the State demonstrates that the error was harm-
less beyond a reasonable doubt.
32. Verdicts: Juries: Appeal and Error. Harmless error exists when there is some
incorrect conduct by the trial court which, on review of the entire record, did
not materially influence the jury’s verdict adversely to a defendant’s substan-
tial right.
502 	282 NeBrASkA repOrTS

33. Appeal and Error. When determining whether an alleged error is so prejudicial
as to justify reversal, an appellate court generally considers whether the error, in
the light of the totality of the record, influenced the outcome of the case.
34. Evidence: New Trial: Appeal and Error. Upon finding reversible error in a
criminal trial, an appellate court must determine whether the total evidence
admitted by the district court, erroneously or not, was sufficient to sustain a guilty
verdict. If it was not, then double jeopardy forbids a remand for a new trial.
35. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative
value as a matter of law may an appellate court set aside a guilty verdict as
unsupported by evidence beyond a reasonable doubt.
36. Arrests: Blood, Breath, and Urine Tests. The validity of a refusing to submit
charge under Neb. rev. Stat. § 60-6,197(3) (reissue 2010) depends upon the
State’s showing a valid arrest under § 60-6,197(2).
37. Drunk Driving: Police Officers and Sheriffs: Blood, Breath, and Urine Tests.
Under Neb. rev. Stat. § 60-6,197(2) (reissue 2010), a peace officer can require
a person to submit to a chemical test of his or her blood, breath, or urine when
the following circumstances are present: (1) The officer has arrested the person
for committing an offense arising out of acts alleged to have been committed
while the person was driving or in actual physical control of a vehicle and under
the influence of alcohol or drugs; and (2) the officer has reasonable grounds
to believe that the person was driving or was in the actual physical control of
a motor vehicle in this state while under the influence of alcohol or drugs, in
violation of Neb. rev. Stat. § 60-6,196 (reissue 2010). In addition, the person’s
conduct must not have occurred on private property that is not open to pub-
lic access.
38. Drunk Driving: Probable Cause: Police Officers and Sheriffs. Law enforce-
ment officers must have probable cause to arrest a person for driving under the
influence.
39. Drunk Driving: Arrests: Probable Cause: Police Officers and Sheriffs: Blood,
Breath, and Urine Tests: Convictions. If law enforcement officers lack probable
cause to arrest a person for driving under the influence, they lack authority to
require the person to submit to a chemical test and a conviction for refusing to
submit to the test is unlawful.
40. Criminal Law: Motions to Dismiss: Directed Verdict: Waiver: Convictions:
Appeal and Error. In a criminal trial, after a court overrules a defendant’s
motion for a dismissal or a directed verdict, the defendant waives any right to
challenge the trial court’s ruling if the defendant proceeds with trial and intro-
duces evidence. But the defendant may challenge the sufficiency of the evidence
for the conviction.
41. 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 reason-
able doubt.
STATe v. mcCAve 	503
Cite as 282 Neb. 500

42. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court will review for clear error the
factual findings underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination, whether the court admitted evidence over a
hearsay objection or excluded evidence on hearsay grounds.
43. Hearsay. If an out-of-court statement is not offered for the purpose of proving the
truth of the facts asserted, it is not hearsay.
44. Rules of Evidence: Hearsay. Apart from statements falling under the definitional
exclusions and statutory exceptions, the admissibility of an out-of-court statement
depends upon whether the statement is offered for one or more recognized non-
hearsay purposes relevant to an issue in the case.
45. Hearsay. Words that constitute a verbal act are not hearsay even if they appear
to be.
46. Hearsay: Words and Phrases. A verbal act is a statement that has legal signifi-
cance, i.e., it brings about a legal consequence simply because it was spoken.
47. Hearsay. A statement offered to prove its impact on the listener, instead of its
truth, is offered for a valid nonhearsay purpose if the listener’s knowledge, belief,
response, or state of mind after hearing the statement is relevant to an issue in
the case.
48. Trespass. Under Neb. rev. Stat. § 28-522 (reissue 2008), a defendant is not
required to have believed that every owner or every person empowered to license
access would have consented to his presence at the premises.
49. Statutes: Appeal and Error. When possible, an appellate court will try to avoid
a statutory construction that would lead to an absurd result.
Appeal from the District Court for Lancaster County, JohN
A. colborN, Judge, on appeal thereto from the County Court
for Lancaster County, lAurie yArdley, Judge. Judgment of
District Court reversed, and cause remanded with directions.
Dennis r. keefe, Lancaster County public Defender, and
Sarah Newell for appellant.
Jon Bruning, Attorney General, and kimberly A. klein for
appellee.
heAvicAN, 	c.J., 	Wright, 	coNNolly, 	gerrArd, 	stephAN,
mccormAck , and miller-lermAN, JJ.
coNNolly, J.
I. SUmmArY
Jeffrey mcCave was in his car, parked in the driveway of
his father’s house. While he was listening to music on the car
radio, his father told him to turn the volume down and leave.
504 	282 NeBrASkA repOrTS

After he refused, his father called the police. The police, after
a confrontation, arrested mcCave for trespass and driving
under the influence of alcohol (DUI). Later, the State addition-
ally charged him with resisting arrest, refusing to submit to a
chemical breath test, and possessing an open container of alco-
hol in a vehicle.
A jury convicted mcCave of DUI, refusing to submit, and
trespass. It deadlocked on the resisting arrest charge. The
county court then convicted him of possessing an open con-
tainer. It declared a mistrial, however, on the resisting arrest
charge. On appeal to the district court, the court affirmed the
judgments in all respects.
This appeal presents several interrelated issues:
1. Did the evidence show that mcCave had operated or was
in actual physical control of his vehicle on a public highway or
on private property that is open to public access?
2. Did the evidence show that mcCave possessed an open
container of alcohol on a public highway or in a public park-
ing area?
3. Does an officer’s lack of probable cause for a DUI arrest
bar a prosecution for refusing to submit to a chemical test?
4. In the criminal trespass prosecution, was evidence show-
ing that mcCave’s stepmother had consented to mcCave’s pres-
ence at her house admissible?
II. BACkGrOUND
police officers arrested mcCave at his father’s house in the
early morning hours. The arrest stemmed from a family dispute
between mcCave and his father, John mcCave (John). The offi-
cers came to the house at John’s request after mcCave refused
to leave the property as John had requested. The officers ini-
tially arrested mcCave for trespass; afterward, they informed
him that he was under arrest for DUI. He claimed that he had
not been driving and refused to submit to a chemical test of
his breath.
At the suppression hearing and at trial, mcCave argued that
the officers lacked probable cause for his arrest. The county
court overruled mcCave’s motion to suppress evidence at both
proceedings. At trial, the court sustained the State’s hearsay
STATe v. mcCAve 	505
Cite as 282 Neb. 500

objections to Ashleigh kudron’s testimony and struck her tes-
timony. kudron was mcCave’s girlfriend. Her testimony would
have shown that mcCave’s stepmother, Susan mcCave (Susan),
had consented to mcCave’s staying at the house. The court
overruled mcCave’s motion for a directed verdict at the close
of the State’s case.
The jury found mcCave guilty of DUI, refusing to submit to
a chemical test, and trespass. It failed to reach a verdict on the
resisting arrest charge, and the court declared a mistrial. After
dismissing the jury, the court found mcCave guilty of possess-
ing an open container in a motor vehicle.
For the DUI and refusing to submit convictions, the county
court sentenced him to 30 days in jail and 2 years of probation,
and to pay a $1,000 fine. The court ordered him not to operate
a vehicle as a term of his probation. For the trespassing convic-
tion, the court sentenced him to 10 days in jail. The court fined
him $50 for the open container conviction.
III. ASSIGNmeNTS OF errOr
mcCave assigns, restated and renumbered, that the district
court erred in affirming the county court’s judgment because
the county court improperly (1) overruled his motion to sup-
press evidence, (2) excluded as hearsay testimony intended to
show that he was or believed that he was licensed to remain on
the property, (3) overruled his motion for a directed verdict, (4)
instructed the jury, and (5) imposed excessive sentences.
Iv. STANDArD OF revIeW
[1,2] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error or
abuse of discretion.1 Both the district court and a higher appel-
late court generally review appeals from the county court for
error appearing on the record.2
1 See, State v. Lamb, 280 Neb. 738, 789 N.W.2d 918 (2010); State v.
Prescott, 280 Neb. 96, 784 N.W.2d 873 (2010).
2 See Lamb, supra note 1.
506 	282 NeBrASkA repOrTS

[3-5] When reviewing a judgment for errors appearing on
the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence,
and is neither arbitrary, capricious, nor unreasonable.3 But we
independently review questions of law in appeals from the
county court.4 When deciding appeals from criminal convic-
tions in county court, we apply the same standards of review
that we apply to decide appeals from criminal convictions in
district court.5
v. ANALYSIS
1. JurisdictioN
We first address the district court’s conclusion that mcCave
had appealed from a final order. Despite the pending charge
for resisting arrest, the court concluded that because the county
court had sentenced mcCave on his three convictions for DUI,
trespass, and open container violations, there was a final judg-
ment for those charges.
[6-8] We do not acquire jurisdiction of an appeal unless a
party is appealing from a lower tribunal’s final order or judg-
ment.6 And if the district court, sitting as an intermediate
appellate court, lacked jurisdiction over a party’s appeal, we
also lack jurisdiction to decide the merits of the appeal.7 We
determine jurisdictional questions that do not involve a factual
dispute as a matter of law.8 Although the State does not dispute
3 State v. Royer, 276 Neb. 173, 753 N.W.2d 333 (2008).
4 See, Lamb, supra note 1; Prescott, supra note 1; Royer, supra note 3.
5 See, Lamb, supra note 1; Prescott, supra note 1; State v. Thompson, 278
Neb. 320, 770 N.W.2d 598 (2009); State v. Albers, 276 Neb. 942, 758
N.W.2d 411 (2008); Royer, supra note 3.
6 See State v. Hudson, 273 Neb. 42, 727 N.W.2d 219 (2007).
7 See, Ev. Luth. Soc. v. Buffalo Cty. Bd. of Equal., 243 Neb. 351, 500
N.W.2d 520 (1993); MBNA America Bank v. Hansen, 16 Neb. App. 536,
745 N.W.2d 609 (2008); State v. Brown, 12 Neb. App. 940, 687 N.W.2d
203 (2004).
8 See State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
STATe v. mcCAve 	507
Cite as 282 Neb. 500

our jurisdiction to decide this appeal, we must determine
whether we have jurisdiction over the matter before us.9
[9-11] Generally, an order entered during the pendency of a
criminal case is final only when no further action is required
to completely dispose of the pending case.10 And before a
criminal conviction is a final judgment, the trial court must
pronounce sentence.11 So no final judgment occurs when a
trial court declares a mistrial that applies to every count in
the charging instrument.12 But here, the trial court declared a
mistrial for only the charge on which the jury deadlocked. So
the question is whether a conviction and sentence for some
counts of a multicount complaint or information can be final
and appealable when the court declares a mistrial on one of the
counts, leaving that count still pending. It appears that we have
not decided this issue.
The district court relied on two federal appellate decisions
to conclude that it had jurisdiction: U.S. v. Abrams13 and U.S.
v. King.14 In Abrams, a jury convicted the defendant of three
counts in a 13-count indictment. But the trial court declared a
mistrial on the remaining 10 counts for which the jurors failed
to reach a unanimous decision. The government represented
that it did not intend to retry those counts if the three convic-
tions were affirmed. The Second Circuit concluded that it had
jurisdiction over a final judgment. It relied on the general rule
that a judgment of conviction which includes the sentence is
final. It reasoned that even if “the litigation as framed in the
indictment may not yet have run its course, the counts of con-
viction have been resolved and the sentence is ready for execu-
tion. The unresolved counts have in effect been severed, and
will be resolved another time in a separate judgment.”15
9 See id.
10 See State v. Vela, 272 Neb. 287, 721 N.W.2d 631 (2006).
11 Id.
12 See State v. Jackson, 274 Neb. 724, 742 N.W.2d 751 (2007).
13 U.S. v. Abrams, 137 F.3d 704 (2d Cir. 1998).
14 U.S. v. King, 257 F.3d 1013 (9th Cir. 2001).
15 Abrams, supra note 13, 137 F.3d at 707.
508 	282 NeBrASkA repOrTS

The Second Circuit in Abrams concluded that requiring a
defendant to delay an appeal until a court renders judgment for
every count would result in one of two undesirable outcomes.
First, if the trial court executed the sentence, then a defendant
would be serving the sentence with no right to appeal the judg-
ment. Alternatively, a trial court’s stay of a sentence’s execution
pending an appeal would “substantially delay the execution of
a valid conviction and sentence, force trials that may never be
needed, and impose expense and burden on the prosecution and
the defense.”16
In King, the defendant pleaded guilty to, and the court sen-
tenced him on, 19 counts of a 50-count indictment. The Ninth
Circuit concluded that it had jurisdiction over his appeal even
though the remaining counts were still pending. The Ninth
Circuit concluded that the defendant’s guilty pleas to a subset
of the charges had created a de facto severance of the case. It
concluded that permitting a defendant to begin serving a sen-
tence before obtaining the right to appeal would violate due
process. It determined that “the court’s interest in ensuring a
defendant has the right to appeal a sentence when he begins
serving it outweighs the government’s concerns about piece-
meal appellate review.”17
In contrast, the minority rule generally depends upon a stay
of the execution of sentence. The First Circuit’s decision in
U.S. v. Leichter18 is illustrative. The trial court had, on its own,
severed a conspiracy charge from over 390 other counts against
the three defendants. After a jury convicted them, the govern-
ment dismissed all but 38 of the remaining counts. The court
then stayed execution of the sentence pending the defendants’
appeal. The First Circuit concluded that the trial court had not
formally severed the cases and reasoned that in that circum-
stance, “[t]he prevailing practice has been to treat ‘the case’
16 Id.
17 King, supra note 14, 257 F.3d at 1021. See, also, U.S. v. Richardson, 817
F.2d 886 (D.C. Cir. 1987).
18 U.S. v. Leichter, 160 F.3d 33 (1st Cir. 1998). But see U.S. v. Bay State
Ambulance and Hosp. Rental Serv., 874 F.2d 20 (1st Cir. 1989).
STATe v. mcCAve 	509
Cite as 282 Neb. 500

as the basic unit for an appeal.”19 In concluding that it lacked
jurisdiction, the court emphasized that the trial court had stayed
execution of the sentences.
The other leading federal case adopting the minority rule
also depended upon a stay of execution. In U.S. v. Kaufman,20
the jury convicted the defendant of one count, acquitted him
of two counts, and deadlocked on two counts. The trial court
granted a mistrial as to the deadlocked counts and sentenced
the defendant for his conviction, but stayed execution of
the sentence. The Seventh Circuit determined that the unre-
solved counts prevented it from exercising jurisdiction over the
defendant’s appeal because the litigation was not terminated
until there was a judgment on every count. It reasoned that
exercising jurisdiction would encourage piecemeal appellate
review. But it also held that the trial court could not execute
the sentence for the defendant’s one conviction until there was
a final judgment on all counts of the indictment: “A judgment
which lacks finality cannot authorize the imprisonment of
a defendant.”21
[12,13] The majority approach is more persuasive and more
consistent with Nebraska law. As stated, a conviction is a final
judgment for appeal purposes after the trial court pronounces
the sentence.22 more important, Neb. Const. art. I, § 23, guar-
antees the right to appeal in all felony cases.23 Although the
U.S. Constitution does not guarantee the right to appeal a
criminal conviction, if a state provides an appeal as a matter
of right, its appellate procedures must comport with due proc-
ess.24 We believe that requiring a defendant to delay an appeal
until the State retries a remaining count (assuming that the
State intends to retry the remaining count) could unnecessarily
19 Leichter, supra note 18, 160 F.3d at 36.
20 U.S. v. Kaufman, 951 F.2d 793 (7th Cir. 1992).
21 Id. at 795.
22 See Vela, supra note 10.
23 State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001).
24 See, id., citing Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. ed. 2d
821 (1985); State v. Schroder, 218 Neb. 860, 359 N.W.2d 799 (1984).
510 	282 NeBrASkA repOrTS

interfere with a defendant’s right to appeal while he or she is
serving a sentence.25
moreover, the majority approach also avoids trial manage-
ment issues. The potential for delays could pressure the State
to dismiss those counts on which the jury has deadlocked.26
Conversely, as the Second Circuit noted, even if a prolonged
delay because of a retrial is not a concern, staying execution
of the sentence could result in unnecessary trials.27 From the
State’s perspective, future proceedings may be unnecessary if a
court affirms the conviction on appeal.28
[14] We conclude that when the trial court has declared a
mistrial as to one or more counts in a multicount charging
instrument, the better course is to treat those counts as sev-
ered—to be resolved in a new proceeding. This rule will permit
a defendant to appeal his conviction and sentence rather than
waiting until a court enters judgment on every count. The dis-
trict court did not err in exercising jurisdiction over mcCave’s
appeal. We now turn to the merits of his appeal.
2. couNty court erred iN fAiliNg
to suppress evideNce
(a) parties’ Contentions
mcCave argues that the county court erred in failing to sup-
press evidence derived from his DUI arrest. He argues that the
officers lacked probable cause to believe that he had operated
or been in actual physical control of a vehicle while intoxi-
cated. He argues that he was not on property open to public
access because he was sitting in a car which was parked on a
residential driveway with its motor not running.
The State views it differently. It argues that mcCave was
in physical control of the vehicle and that the vehicle was not
entirely on private property. relying on State v. Prater,29 the
25 Compare Kaba v. Fox, 213 Neb. 656, 330 N.W.2d 749 (1983).
26 Compare U.S. v. Kaufmann, 985 F.2d 884 (7th Cir. 1993).
27 See Abrams, supra note 13.
28 See Leichter, supra note 18 (Campbell, J., dissenting).
29 State v. Prater, 268 Neb. 655, 686 N.W.2d 896 (2004).
STATe v. mcCAve 	511
Cite as 282 Neb. 500

State also argues that an officer should not have to wait until
a driver enters a public highway before stopping the driver to
determine whether the driver is impaired. It argues that Officer
Benjamin Faz testified that mcCave had his hand on the igni-
tion switch and was about to start the vehicle after stating that
he was leaving.
(b) Standard of review
[15] In reviewing a trial court’s ruling on a motion to sup-
press based on the Fourth Amendment, we will uphold its find-
ings of fact unless they are clearly erroneous.30 But we review
de novo the trial court’s ultimate determinations of reasonable
suspicion to conduct an investigatory stop and probable cause
to perform a warrantless search.31
(c) Facts
Two officers responded to John’s complaint. Faz testified at
the suppression hearing. He stated John told him that mcCave
was intoxicated and causing a disturbance and that he wanted
the officers to remove him. Faz stated that John said that
mcCave had been at his house earlier, left, and then returned
intoxicated and caused a disturbance. After speaking to John,
the officers walked around to the side of the house, where
the detached garage and driveway abutted a side street. Faz
stated that the vehicle was parked in the driveway, straddling
the sidewalk.
Faz recognized mcCave from previous complaints and saw
him sitting in the driver’s seat. The motor was not running,
but the keys were in the ignition. Faz saw a beer can in the
console. When Faz asked mcCave what he was doing, he first
responded, “‘Nothing,’” but then stated that he was leaving.
Faz stated that mcCave was about to start the engine, but he
never turned the motor on, and he stepped out of the car when
asked to do so.
In exiting the car, mcCave backed away from the offi-
cers, yelling that they had no right to contact him on private
30 State v. Sharp, 281 Neb. 130, 795 N.W.2d 638 (2011).
31 Id.
512 	282 NeBrASkA repOrTS

property. The officers believed that he was intoxicated and
arrested him for trespass. From his conversation with John, Faz
did not know how long mcCave had been in the vehicle on the
driveway. He also did not know the means by which mcCave
had left the house or whether he was driving. Faz saw kudron
and knew that she was mcCave’s girlfriend. But he did not
speak to her or ask whether she had driven the vehicle.
After arresting mcCave for trespass, Faz returned and spoke
to John and Susan. John stated that he had been asleep. Susan
stated that mcCave had returned about a half-hour to an hour
before John woke up. Faz did not ask Susan whether she had
allowed mcCave to be on the property. Later, Faz read mcCave
the postarrest advisement form for DUI. mcCave refused to
submit to a chemical breath test.
The county court concluded that the circumstantial evidence
was sufficient to show that mcCave had been driving. It rea-
soned that the officers could infer that he had been driving
because he had stated that he was leaving when the officers
first approached him.
(d) Analysis
Under Neb. rev. Stat. § 60-6,196(1) (reissue 2010), it is
unlawful for a person to operate or be in the actual physical
control of any motor vehicle while under the influence of alco-
hol or a drug. Here, the police initially arrested mcCave for
trespass. But the postarrest chemical test advisement form that
Faz later read to mcCave informed him that he was also under
arrest for DUI.
(i) Probable Cause Standard
[16-18] 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 govern-
ment.32 An arrest is a highly intrusive detention (seizure) of
a person that must be justified by probable cause.33 probable
cause to support a warrantless arrest exists only if the officer
32 State v. Smith, 279 Neb. 918, 782 N.W.2d 913 (2010).
33 See State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).
STATe v. mcCAve 	513
Cite as 282 Neb. 500

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 sus-
pect has committed or is committing a crime.34
[19-22] probable cause is a flexible, commonsense standard
that depends on the totality of the circumstances.35 probable
cause is not defeated because an officer incorrectly believes
that a crime has been or is being committed.36 But implicit
in the probable cause standard is the requirement that a law
enforcement officer’s mistakes be reasonable.37 We determine
whether probable cause existed under an objective standard of
reasonableness, given the known facts and circumstances.38
(ii) McCave Was Not in Actual Control of a Vehicle
on Private Property Open to Public Access
[23] Under Neb. rev. Stat. § 60-6,108(1) (reissue 2010),
Nebraska’s DUI statutes do not apply to a person’s operation or
control of a vehicle on private property that is not open to pub-
lic access. So we first address whether mcCave was in actual
physical control of a vehicle on private property with public
access when he was sitting in a parked vehicle which was on a
residential driveway but overhanging a public sidewalk.
In Prater,39 we affirmed the trial court’s ruling that an apart-
ment building parking lot was private property with public
access. We defined “open to public access” as follows:
The word “access” is defined as “permission, liberty,
or ability to enter, approach . . . or pass to and from,”
34 See, 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. 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).
35 See, Smith, supra note 32; State v. DeGroat, 244 Neb. 764, 508 N.W.2d
861 (1993).
36 See Smith, supra note 32.
37 See Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. ed.
1879 (1949).
38 See Smith, supra note 32.
39 Prater, supra note 29.
514 	282 NeBrASkA repOrTS

“a way by which a thing or place may be approached or
reached,” and “the action of going to or reaching . . . pas-
sage to and from.” . . . Thus, the phrase “open to public
access” means that the public has permission or the abil-
ity to enter.40
We concluded that whether the apartment building park-
ing lot was open to public access was “primarily a question
of fact.”41 Although in Prater, a sign warned motorists that
unauthorized vehicles would be towed, the residents’ testimony
established that the lot was available to guests, workers, and
delivery people. We cited cases from other jurisdictions in
which the courts upheld DUI convictions when the public was
permitted to use a private parking lot. We concluded, “public
safety requires that DUI statutes and ordinances apply to any
property to which the public has access. The purpose of these
laws is to protect the public—not to provide a safe harbor for
the intoxicated driver in a private parking lot.”42
But Prater is not controlling here. When §§ 60-6,108 and
60-6,196 are read consistently, they show that the Legislature
intended to prohibit intoxicated persons from operating or
being in control of a vehicle even on private property if other
motorists might access that property and be endangered by
their conduct. But Neb. rev. Stat. § 60-649 (reissue 2010)
defines a private road or driveway to mean “every 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.”
[24] So, unlike the question presented in Prater, the public
access question here presents a question of statutory interpre-
tation. As a matter of law, we conclude that under § 60-649,
a residential driveway is not private property that is open to
public access.43 members of the general public have no right
or implied permission to use a private residential driveway.
40 Id. at 657-58, 686 N.W.2d at 898.
41 Id. at 658, 686 N.W.2d at 898.
42 Id. at 660, 686 N.W.2d at 900.
43 See State v. Haws, 869 p.2d 849 (Okla. Crim. App. 1994). Compare State
v. Day, 96 Wash. 2d 646, 638 p.2d 546 (1981) (en banc).
STATe v. mcCAve 	515
Cite as 282 Neb. 500

Nor do they have the “ability to enter” the driveway in the
same sense that a member of the public might drive through
or use a private parking lot by custom.44 So neither a property
owner nor the owner’s guest would reasonably expect that the
public might use the owner’s driveway. To extend Prater to
these facts would render the limitation on the statute’s reach
meaningless.
Nor do we think that the driveway’s characterization as
private property without public access changed just because
mcCave’s vehicle overhung the sidewalk. Neb. rev. Stat.
§ 60-662 (reissue 2010) defines a sidewalk as “that portion of
a highway between the curb lines, or the lateral lines of a road-
way, and the adjacent property lines, intended for use by pedes-
trians.” Because a sidewalk is not intended for use by vehicles,
an intoxicated person in a parked vehicle on a private driveway
does not endanger other motorists merely because the vehicle
overhangs the sidewalk. We do not believe the Legislature
intended to make a citizen drinking a beer while cleaning out
his vehicle parked in his driveway guilty of a crime because the
vehicle is overhanging the sidewalk.
[25] We reject the State’s argument that criminal liability
under § 60-6,196 extends to intoxicated persons in control of a
vehicle parked on a residential driveway, regardless of whether
part of the vehicle crosses a sidewalk. Accordingly, the arrest-
ing officers did not have probable cause to believe that mcCave
was an intoxicated person in actual control of a vehicle on
private property open to public access. We next address the
county court’s conclusion that based on circumstantial evi-
dence, the officers had probable cause to believe that mcCave
had been driving while intoxicated.
(iii) Officers Did Not Have Probable Cause to
Believe McCave Had Driven a Vehicle on
a Public Highway While Intoxicated
The county court concluded that because mcCave had stated
that he was leaving while he was in his vehicle with the keys
in the ignition and the motor off, the officers could infer that
44 See Prater, supra note 29, 268 Neb. at 658, 686 N.W.2d at 898.
516 	282 NeBrASkA repOrTS

mcCave drove to John and Susan’s house intoxicated. We dis-
agree. Obviously, if mcCave had committed an offense in front
of the officers, they would have had grounds for an arrest. But
his statement that he was leaving, even if his hand was on the
key in the ignition, showed only that he had considered driving
but changed his mind.
[26] These facts are distinguishable from the majority of
cases in which an officer stops a motorist for a traffic violation
or driving erratically and then observes physical signs of intoxi-
cation. It is true that in DUI cases, circumstantial evidence can
establish a person’s operation of a motor vehicle.45 But the evi-
dence here falls short of the evidence presented in the few cases
where the officer did not see the defendant operating a motor
vehicle but the circumstantial evidence was sufficient to show
that the defendant had been driving while intoxicated.
In most of those cases, the facts showed that the defend-
ant, who exhibited signs of intoxication, was found alone in
a vehicle in a place where the vehicle could not have been
unless the defendant drove it there.46 In a case relevant for its
contrasting facts, we reversed the Court of Appeals’ decision
that the circumstantial evidence was insufficient to support
a DUI conviction.47 There, an officer arrested the defendant,
whom he had found in the ditch of a rural road, lying beside
his motorcycle. The defendant claimed that he had lost control
of his motorcycle when another vehicle passed him. The Court
of Appeals agreed that the officer had found the defendant in
an intoxicated state but concluded that there was no evidence
to indicate how long the defendant had been in the ditch. It
concluded the evidence failed to show that the defendant had
been intoxicated and driving at the same time.
In reversing, we emphasized the circumstances that pre-
cluded an inference that the defendant became intoxicated after
the accident, when he was no longer driving:
45 See State v. Eckert, 186 Neb. 134, 181 N.W.2d 264 (1970).
46 See, State v. Miller, 226 Neb. 576, 412 N.W.2d 849 (1987); State v. Baker,
224 Neb. 130, 395 N.W.2d 766 (1986); Eckert, supra note 45. Compare
State v. Johnson, 250 Neb. 933, 554 N.W.2d 126 (1996).
47 See State v. Blackman, 254 Neb. 941, 580 N.W.2d 546 (1998).
STATe v. mcCAve 	517
Cite as 282 Neb. 500

There is no evidence in the record of other persons, liquor,
or liquor containers in the area where [the defendant]
was found by the officer, nor is there any other evidence
which would support an inference that [the defendant]
had the means or opportunity of ingesting alcohol from
the time he lost control of the motorcycle until the officer
found him lying beside it in the ditch.48
It is true that the circumstances the officers encountered
when they arrested mcCave gave them probable cause to
believe that he was intoxicated. According to Faz, when the
officers arrived, John told them that mcCave was intoxi-
cated and causing a disturbance. When the officers approached
mcCave in the vehicle, his conduct and a beer in the vehicle’s
console supported a reasonable belief that he was intoxicated.
But unlike in our earlier cases, the facts known to the officers
were insufficient to support a conclusion that mcCave had
operated his vehicle while intoxicated.
[27] A citizen informant who has personally observed the
commission of a crime is presumptively reliable.49 But John did
not state that he had seen mcCave driving while intoxicated or
driving at all. He told the officers only that mcCave had been
at his house earlier, had left, and later returned intoxicated.
moreover, the officers should have known that John was not a
reliable source of information for concluding that mcCave had
returned intoxicated. John was asleep when mcCave returned.
He told Faz this, and Susan told Faz that mcCave came back
about a half-hour to an hour before John woke up.
[28] more important, the fact that John and Susan told the
officers that mcCave had left the house and returned did not
indicate the means by which he had left or returned. No wit-
ness reported that mcCave was driving a vehicle at any time,
and the officers did not pose this critical question to mcCave
or any witness. Before officers invoke the power of a warrant-
less arrest, the Fourth Amendment requires them to investigate
the basic evidence for the suspected offense and reasonably
question witnesses readily available at the scene, at least when
48 Id. at 949, 580 N.W.2d at 551.
49 State v. Wollam, 280 Neb. 43, 783 N.W.2d 612 (2010).
518 	282 NeBrASkA repOrTS

exigent circumstances do not exist.50 This is particularly true
when the circumstances the officers encounter are consistent
with lawful conduct.51 As previously discussed, it is not unlaw-
ful for a person to be intoxicated in a vehicle on private prop-
erty not open to public access.
John’s statement that mcCave had left and returned to the
house and the officer’s observation of mcCave in his vehicle
gave the officers reasonable suspicion to temporarily detain
mcCave while they investigated whether he had been driving
while intoxicated. But the officers did not attempt to determine
the relevant facts. They did not ask mcCave or the witnesses
how he had left the house or returned; they saw kudron but
did not speak to her; and they did not attempt to discover from
a reliable source whether mcCave was intoxicated when he
returned to the house or if he had been drinking alcohol after
he returned to the house. Instead, Faz stated, “I guess I just
inferred with the beer being in the car that him and the beer got
there by the vehicle.”
But the facts did not support this inference when two other
possibilities were equally plausible. mcCave could have left
and returned to the house intoxicated without driving. Or he
could have become intoxicated after returning to the house. In
contrast to events in our previous cases, the officers did not
encounter a suspect in his or her vehicle who admitted to driv-
ing at some point before the encounter52; no citizen informant
had reported that the suspect was driving while intoxicated53
or driving erratically; no witness at the scene reported that the
suspect had driven the vehicle immediately before the police
50 See, Kuehl v. Burtis, 173 F.3d 646 (8th Cir. 1999); Romero v. Fay, 45 F.3d
1472 (10th Cir. 1995); Sevigny v. Dicksey, 846 F.2d 953 (4th Cir. 1988);
Bigford v. Taylor, 834 F.2d 1213 (5th Cir. 1988); BeVier v. Hucal, 806 F.2d
123 (7th Cir. 1986); Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th
Cir. 1984), vacated on other grounds sub nom. City of Lawton, Okla. v.
Lusby, 474 U.S. 805, 106 S. Ct. 40, 88 L. ed. 2d 33 (1985).
51 See BeVier, supra note 50.
52 See, e.g., State v. Portsche, 261 Neb. 160, 622 N.W.2d 582 (2001).
Compare Blackman, supra note 47.
53 See Wollam, supra note 49.
STATe v. mcCAve 	519
Cite as 282 Neb. 500

arrived54; and the officers did not encounter the suspect in a
location where the suspect could not have been unless the
suspect had driven the vehicle while intoxicated.55 Finally, no
exigent circumstance existed because the police had already
arrested mcCave for trespassing.
Instead, the evidence shows that the officers focused on
removing mcCave from the property because of his alleged
trespass. Their arrest of mcCave for DUI appears to have been
an afterthought to the trespass arrest because they did not
investigate the relevant facts that were readily available. As
stated, officers do not lack probable cause because in hindsight
they were wrong about a suspect’s unlawful conduct. But here,
because the circumstances that the officers encountered were
consistent with lawful conduct, the officers unreasonably failed
to gather more facts from a reliable source before arresting
mcCave for DUI. So the arrest was unlawful, and the court
erred in failing to suppress as fruit of an unreasonable seizure
any evidence or statements tainted by the arrest.56
(iv) Failure to Suppress Tainted Evidence
Was Not Harmless Error
[29,30] mcCave’s illegal arrest did not bar the State from
prosecuting him for the charged offenses with evidence that
was untainted by the illegal arrest.57 But the improper admis-
sion of evidence, even tainted evidence, is a trial error sub-
ject to harmless error analysis.58 Because the court failed to
suppress the tainted evidence, we consider whether the error
was harmless.
54 See State v. Hanger, 241 Neb. 812, 491 N.W.2d 55 (1992).
55 See cases cited supra note 46.
56 See, State v. Gorup, 279 Neb. 841, 782 N.W.2d 16 (2010); State v.
Abdouch, 230 Neb. 929, 434 N.W.2d 317 (1989).
57 See, Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. ed. 2d
639 (1980), citing United States v. Crews, 445 U.S. 463, 100 S. Ct. 1244,
63 L. ed. 2d 537 (1980); State v. Tingle, 239 Neb. 558, 477 N.W.2d 544
(1991).
58 See, State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009); State v. Rathjen,
266 Neb. 62, 662 N.W.2d 591 (2003).
520 	282 NeBrASkA repOrTS

The State contends that suppressing tainted evidence would
not have made a difference in the outcome. It argues that the
only improperly admitted evidence would have consisted of the
beer can that the police seized from mcCave’s vehicle. But the
evidence that the court should have suppressed also included
mcCave’s statements to officers after his arrest and his refusal
to take the chemical breath test.59 The State used this evidence
at trial to cast mcCave in an unfavorable light.
[31-33] An erroneous admission of evidence is prejudicial
to a defendant unless the State demonstrates that the error was
harmless beyond a reasonable doubt.60 Harmless error exists
when there is some incorrect conduct by the trial court which,
on review of the entire record, did not materially influence
the jury’s verdict adversely to a defendant’s substantial right.61
When determining whether an alleged error is so prejudicial as
to justify reversal, we generally consider whether the error, in
the light of the totality of the record, influenced the outcome
of the case.62
Here, we cannot conclude that the admission of this evidence
did not materially influence the outcome of the case. Because
the county court did not suppress this evidence, we reverse the
judgment of conviction for the DUI charge.63
3. evideNce WAs iNsufficieNt to support
coNvictioN for dui
[34] Upon finding reversible error in a criminal trial, an
appellate court must determine whether the total evidence
admitted by the district court, erroneously or not, was sufficient
to sustain a guilty verdict.64 If it was not, then double jeopardy
forbids a remand for a new trial.65
59 See Tingle, supra note 57.
60 See State v. Duncan, 278 Neb. 1006, 775 N.W.2d 922 (2009).
61 See State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007).
62 State v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006).
63 See Tingle, supra note 57.
64 See, State v. Nero, 281 Neb. 680, 798 N.W.2d 597 (2011); State v.
McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007).
65 See Nero, supra note 64.
STATe v. mcCAve 	521
Cite as 282 Neb. 500

(a) Facts
At trial, the direct evidence established that mcCave never
drove his vehicle after arriving at John and Susan’s house in
the afternoon before his arrest. kudron had been staying with
mcCave at his mother’s house, where he lived. She testified
that Susan invited her and mcCave to come over for a visit in
the afternoon. John and Susan lived a couple of blocks from
mcCave’s mother. mcCave drove his vehicle over and parked
in John and Susan’s driveway. The witnesses disputed whether
or by how much the vehicle hung over the sidewalk while
parked in the driveway. Only the officers testified that the
vehicle was straddling the sidewalk.
mcCave did not consume any alcohol during the day, before
or after arriving at John’s house. Soon after arriving at John
and Susan’s house, he gave kudron his car keys. She testified
that he frequently did this so he would not be tempted to drive
if he drank a couple of beers. At some point, mcCave’s mother
came over to visit also. Close to evening, mcCave walked her
home and stated that he was going out with his friends after-
ward to a bar about five blocks away. John told mcCave not to
come back if he was intoxicated. kudron stayed at the house,
visiting Susan.
mcCave was gone until around 11:30 p.m. or midnight, and
John had retired to his room before mcCave returned. kudron
did not believe that mcCave was intoxicated when he returned.
mcCave told her that he was going to the “bottle shop” to get
a couple of beers and some cigarettes and that he did not know
whether he would walk or get a ride. kudron stated that she
still had his car keys. When he returned, mcCave told kudron
that he had gotten a ride to the bottle shop and walked back.
He had purchased two cans of beer.
mcCave drank one beer in the house while watching televi-
sion with Susan and kudron. At some point, John observed
mcCave drinking a beer in the house and argued with Susan,
but then went back to his room. After an hour or so of watching
television, mcCave, kudron, and Susan went outside to listen
to music from mcCave’s car stereo. kudron stated that she put
the keys in the ignition so they could listen to the radio while
they stood outside the car. After about 45 minutes, kudron and
Susan went inside to get cigarettes.
522 	282 NeBrASkA repOrTS

John testified that he went outside and asked mcCave to
turn the music off and walk home. John stated that the motor
was not running, the lights were off, and no one was in the
vehicle with mcCave. He also stated that mcCave turned the
music up louder after he went in, so he went back out to say
that he would call the police if mcCave did not turn it off and
go home. John called the police around 1 or 1:30 a.m. He
testified that he told the officers that he thought mcCave had
been drinking but did not say that he was drunk. He never saw
mcCave drinking any alcohol until after mcCave had returned
to the house.
The officers testified to basically the same facts that the State
presented at the suppression hearing. They arrested mcCave for
trespass. Because they smelled alcohol on his breath and he
was belligerent, they did not perform field sobriety tests. Faz
testified that they were afraid that if they took mcCave’s hand-
cuffs off, he would hurt someone. Instead, they took him to the
police station for a chemical breath test. During the transport,
mcCave continually yelled at them, called them names, and
insisted that he had not been driving. Faz read mcCave the
postarrest chemical test advisement form at the police sta-
tion. mcCave refused to submit to the test because he was still
insisting that he had not been driving.
(b) Analysis
[35] In reviewing the sufficiency of the evidence for this
conviction, we consider whether the evidence would have been
sufficient if the court had properly admitted evidence of the
beer seized from mcCave’s vehicle and his subsequent state-
ments to the officers. Only where evidence lacks sufficient pro-
bative value as a matter of law may an appellate court set aside
a guilty verdict as unsupported by evidence beyond a reason-
able doubt.66 We conclude that this condition is met here.
First, mcCave was on private property as a matter of law, not
on a public highway and not on private property open to public
access. The State spent considerable time establishing the posi-
tion of the vehicle on the driveway. But as discussed, even if
66 State v. Davis, 277 Neb. 161, 762 N.W.2d 287 (2009).
STATe v. mcCAve 	523
Cite as 282 Neb. 500

the officers were correct that the vehicle completely crossed
the sidewalk, the sidewalk did not change the private character
of the residential driveway. So the State could not support the
DUI conviction by showing that mcCave was in actual control
of a vehicle on a public highway or private property that was
open to public access.
moreover, the State offered no new evidence that mcCave
had been operating a vehicle on a public highway while intoxi-
cated. We have already determined that the circumstantial evi-
dence failed to give the officers probable cause for his arrest
for this charge. So without any new evidence offered at trial
establishing that he had driven his vehicle, we also conclude
that the State’s circumstantial evidence failed as a matter of
law to establish mcCave’s operation of vehicle on a public
highway. Thus, double jeopardy does not permit a retrial on
this charge.
4. mccAve WAs uNlAWfully coNvicted of refusiNg
to submit to A chemicAl breAth test
At the start of the suppression hearing, mcCave tied the
“refusing to submit” charge to whether the officers had prob-
able cause for an arrest. He argued that the issue was whether
the private driveway was open to public access and “whether or
not they had probable cause to arrest him for a DUI and make
him submit to a chemical test.” The court overruled the motion
but agreed that if the officers did not have probable cause for
an arrest, then mcCave’s refusal to submit to a test would not
be at issue. We interpret mcCave’s argument, under his failure
to suppress assignment of error, to be that the officers lacked
authority to require him to submit to a chemical test because
they lacked probable cause for the DUI arrest.
[36] We agree that the unlawful arrest barred the State
from prosecuting mcCave for refusing to submit to a chemi-
cal breath test, in violation of Neb. rev. Stat. § 60-6,197(3)
(reissue 2010). To be prosecuted for refusing to submit to
a chemical test under § 60-6,197(3), the person must be an
arrestee as described in subsection (2):
Any person arrested as described in subsection (2) of
this section may, upon the direction of a peace officer,
524 	282 NeBrASkA repOrTS

be required to submit to a chemical test or tests of his
or her blood, breath, or urine for a determination of the
concentration of alcohol or the presence of drugs. . . . Any
person who refuses to submit to such test or tests required
pursuant to this section shall be subject to the adminis-
trative revocation procedures . . . and shall be guilty of
a crime . . . .67
So 	the 	validity 	of 	a 	refusing 	to 	submit 	charge 	under
§ 60-6,197(3) depends upon the State’s showing a valid arrest
under § 60-6,197(2).
[37] Under § 60-6,197(2), a peace officer can require a per-
son to submit to a chemical test of his or her blood, breath,
or urine when the following circumstances are present: (1)
The officer has arrested the person for committing an offense
arising out of acts alleged to have been committed while the
person was driving or in actual physical control of a vehicle
and under the influence of alcohol or drugs; and (2) the officer
has reasonable grounds to believe that the person was driving
or was in the actual physical control of a motor vehicle in this
state while under the influence of alcohol or drugs, in viola-
tion of § 60-6,196. In addition, the person’s conduct must not
have occurred on “private property which is not open to pub-
lic access.”68
[38,39] Law enforcement officers must have probable cause
to arrest a person for driving under the influence.69 A valid
arrest was a condition precedent to requiring mcCave to sub-
mit to a chemical breath test.70 We have determined that the
officers’ arrest of mcCave for DUI was unlawful because they
lacked probable cause. So one of the statutory conditions for
requiring mcCave to submit to a chemical breath test was not
satisfied. Therefore, the officers lacked authority to take this
action and mcCave’s conviction for refusing to submit to a
chemical test was unlawful. We reverse this conviction.
67 § 60-6,197(3).
68 See § 60-6,108(1).
69 See State v. Scheffert, 279 Neb. 479, 778 N.W.2d 733 (2010).
70 See Fulmer v. Jensen, 221 Neb. 582, 379 N.W.2d 736 (1986).
STATe v. mcCAve 	525
Cite as 282 Neb. 500

5. evideNce WAs iNsufficieNt to support coNvictioN
for possessiNg AN opeN coNtAiNer
[40] mcCave assigns that the trial court erred in failing to
sustain his motion for a directed verdict. In a criminal trial,
after a court overrules a defendant’s motion for a dismissal or
a directed verdict, the defendant waives any right to challenge
the trial court’s ruling if the defendant proceeds with trial and
introduces evidence. But the defendant may challenge the suf-
ficiency of the evidence for the conviction.71
[41] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion 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.72 The relevant question for an appellate court
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reason-
able doubt.73
Nebraska’s open container statute provides in part that “[i]t
is unlawful for any person in the passenger area of a motor
vehicle to possess an open alcoholic beverage container while
the motor vehicle is located in a public parking area or
on any highway in this state.”74 For this statute, “[h]ighway
means a road or street including the entire area within the
right-of-way.”75
The State concedes that the evidence did not support this
conviction. It submits that there is no evidence that mcCave’s
vehicle was located in a public parking area or on a public
highway as required by the open container statute. We agree.
After the jury found mcCave guilty of the DUI charge, the
county court separately convicted him of possessing an open
container. We agree with the State that a public sidewalk is
71 See State v. Branch, 277 Neb. 738, 764 N.W.2d 867 (2009).
72 Nero, supra note 64.
73 Id.
74 Neb. rev. Stat. § 60-6,211.08(2) (reissue 2010).
75 § 60-6,211.08(1)(b).
526 	282 NeBrASkA repOrTS

not a public parking area. The county court apparently relied
on the DUI conviction to conclude that the circumstantial evi-
dence was sufficient to show that mcCave had possessed an
open container while on a public highway. But the jury instruc-
tion permitted the jury to convict mcCave because it found that
he had operated or been in control of a vehicle on a highway
or private property open to public access. Thus, the verdict
failed to show that the jury believed that mcCave had operated
a vehicle on a highway. Under the State’s arguments, it could
have concluded that a residential driveway was private property
open to public access.
We need not reach here, however, the issue whether circum-
stantial evidence can support an open container conviction. We
have already determined that the circumstantial evidence was
insufficient as a matter of law to prove that mcCave had driven
his vehicle on a public highway. Obviously, it necessarily fol-
lows that the State’s circumstantial evidence could not have
proved that he had possessed an open container of alcohol on a
public highway. We also reverse this conviction.
6. couNty court erred iN fAiliNg to A dmit susAN’s
out - of -court stAtemeNts giviNg mccAve
permissioN to be oN the property
(a) parties’ Contentions
mcCave assigns that the district court erred in affirming the
county court’s ruling that Susan’s statements were inadmis-
sible hearsay. mcCave argues that her statements, permitting
him to be at the house, were offered not for the truth of the
matter asserted but to show the effect that they had on him.
That is, the statements explain why he reasonably believed he
was licensed to be at the property. He also argues that proof of
Susan’s consent would have negated the knowledge and com-
munication elements of the trespass charge.
mcCave relies on the withdrawn portion of our opinion in
State v. Parker76 and a concurrence to that opinion.77 He argues
76 See State v. Parker, 276 Neb. 661, 757 N.W.2d 7 (2008), modified 276
Neb. 965, 767 N.W.2d 68 (2009).
77 See id. (Gerrard, J., concurring).
STATe v. mcCAve 	527
Cite as 282 Neb. 500

that the authorities cited in these opinions show that statements
which are admissible to show their effect on a listener include
statements relevant to explain the course of events or to provide
context to the evidence presented.
The State contends that the withdrawn portion of Parker
is not authority for any subsequent case. It also contends that
Susan’s statements were offered for the truth of the matter
asserted—to show that she had licensed mcCave to be on
the premises. The State argues that because mcCave offered
Susan’s statements for their truth, only Susan could have testi-
fied to what she said to mcCave without the statements’ being
inadmissible as hearsay. The State also contends that Susan’s
statements were not authority for mcCave to be on the property
after John revoked it by telling mcCave to leave.
We agree that the county court’s hearsay ruling excluding
Susan’s statements involved the knowledge element of the
trespass charge and the “reasonable belief” component of the
statutory defense.
(b) relevant Statutes
The State could convict mcCave of second degree criminal
trespass only if it proved that he knew he was not licensed
or privileged to be at John and Susan’s residence: “A person
commits second degree criminal trespass if, knowing that he is
not licensed or privileged to do so, he enters or remains in any
place as to which notice against trespass is given by: (a) Actual
communication to the actor . . . .”78
Neb. rev. Stat. § 28-522(3) (reissue 2008) provides an
affirmative defense against a prosecution for this trespass
charge if “[t]he actor reasonably believed that the owner of the
premises or other person empowered to license access thereto
would have licensed him to enter or remain.”
(c) Facts
At trial, kudron testified that close to evening, mcCave told
her that he was going to walk his mother, patricia, home and
then go to the bar. kudron stated that he gave her his car keys
78 Neb. rev. Stat. § 28-521(1) (reissue 2008).
528 	282 NeBrASkA repOrTS

and was gone for a couple of hours. She did not believe that he
was intoxicated when he returned. Upon his return, he had told
her that he was going to walk or get a ride to the bottle shop to
get beer. But the court sustained the State’s hearsay objection
to kudron’s testimony that Susan told mcCave that he could
have only a couple of beers. kudron then testified that mcCave
returned after 25 minutes with two cans of beer. At this point,
John came out of his bedroom and became upset when he saw
mcCave drinking a beer. When kudron stated that Susan told
John that she had given mcCave permission to be there, the
court sustained the State’s motion to strike the statement.
Later, mcCave made an offer of proof, asserting that if the
court had permitted kudron to testify, she would have stated
the following: When mcCave returned from the bar, he asked
Susan for permission to go to the bottle shop and buy a couple
of beers. Susan stated that he could do that, but that he could
have only two beers. When John came downstairs and was
angry because mcCave was drinking a beer, Susan told him
that she had given mcCave permission to stay there.
mcCave argued that Susan’s statement was not hearsay
because it had legal significance and was relevant to whether
he reasonably believed he was licensed to remain on the prop-
erty. But the court again sustained the State’s objection. It con-
cluded that the purpose for offering the statements was blurred
but that, to some extent, the statements were offered for the
truth of the matter asserted.
The district court affirmed the ruling. It did not specifically
address whether Susan’s statements had legal significance apart
from whether they were relevant to showing that mcCave rea-
sonably believed he was licensed to remain on the property.
But it concluded that in other cases where we had affirmed the
admission of out-of-court statements to show their impact on
the listener, the truth of the matter asserted could be separated
from the statement itself. It did not believe that was true in
this case. It also reasoned that unlike some of our other cases,
Susan’s statements were not necessary to explain why kudron
and mcCave had stayed at the house when Susan had social-
ized with them. Finally, the court concluded that even if the
county court’s ruling was incorrect, it was harmless error. It
STATe v. mcCAve 	529
Cite as 282 Neb. 500

reasoned that John had revoked Susan’s consent for mcCave to
enter or remain on the property.
(d) Standard of review
[42] Apart from rulings under the residual hearsay excep-
tion, an appellate court reviews for clear error the factual find-
ings underpinning a trial court’s hearsay ruling and reviews de
novo the court’s ultimate determination to admit evidence over
a hearsay objection.79 But our reasoning for adopting a de novo
standard applies equally to a court’s exclusion of evidence on
hearsay grounds. That is, whether the underlying facts satisfy
the legal rules governing the admissibility of out-of-court state-
ments presents a question of law.80 So we clarify our standard
of review to include both types of rulings: Apart from rulings
under the residual hearsay exception, we will review for clear
error the factual findings underpinning a trial court’s hearsay
ruling and review de novo the court’s ultimate determination,
whether the court admitted evidence over a hearsay objection
or excluded evidence on hearsay grounds.
(e) Analysis
(i) A Witness’ Out-of-Court Statements
Can Be Hearsay
We first address the State’s argument that because Susan’s
statements were offered for the truth of the matter asserted,
only Susan could have testified to what she had previously
stated without raising a hearsay problem. The State’s argument
is inconsistent with Nebraska’s statutory definition of hearsay:
“Hearsay is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.”81
Susan’s previous statements to mcCave and John were a
declarant’s out-of-court statements, not statements that Susan
made while she was testifying as a witness. And she was not a
party. Thus, if the State were correct that her statements were
79 State v. Baker, 280 Neb. 752, 789 N.W.2d 702 (2010).
80 See State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
81 Neb. rev. Stat. § 27-801(3) (reissue 2008) (emphasis supplied).
530 	282 NeBrASkA repOrTS

offered for the truth of the matter asserted, then—even if she
had testified to her previous statements—they would have been
hearsay unless they fell within a definitional exclusion under
§ 27-801(4)(a) or a statutory exception.82 We conclude, how-
ever, that the statements were not hearsay because they were
not offered for the truth of the matter asserted.
(ii) Susan’s Statements Were Admissible
for Nonhearsay Purposes
[43,44] If an out-of-court statement is not offered for prov-
ing the truth of the facts asserted, it is not hearsay.83 But it does
not necessarily follow that such a statement is admissible in a
particular case. Apart from statements falling under the defini-
tional exclusions and statutory exceptions, the admissibility of
an out-of-court statement depends upon whether the statement
is offered for one or more recognized nonhearsay purposes
relevant to an issue in the case.84 mcCave correctly contends
that Susan’s statements had legal significance for the trespass
charge independent of the truth of the matter asserted. But we
clarify that the statements fell within the recognized nonhear-
say purpose of showing a “verbal act.”
[45,46] We have previously explained that words that con-
stitute a verbal act are not hearsay even if they appear to be.85
A verbal act is a statement that has legal significance, i.e., it
brings about a legal consequence simply because it was spo-
ken.86 To explain why such statements are not hearsay, we have
previously set forth the advisory committee notes to Fed. r.
evid. 801(c), the federal counterpart to § 27-801(3):
“If the significance of an offered statement lies solely
in the fact that it was made, no issue is raised as to
the truth of anything asserted, and the statement is not
82 See, People v. Lawler, 142 Ill. 2d 548, 568 N.e.2d 895, 154 Ill. Dec. 674
(1991); G. michael Fenner, The Hearsay rule ch. 1(II)(C)(3) (2003).
83 Baker, supra note 79.
84 See id.
85 See Schmidt v. Schmidt, 228 Neb. 758, 424 N.W.2d 339 (1988).
86 Alliance Nat. Bank v. State Surety Co., 223 Neb. 403, 390 N.W.2d 487
(1986); State v. McSwain, 194 Neb. 31, 229 N.W.2d 562 (1975).
STATe v. mcCAve 	531
Cite as 282 Neb. 500

hearsay. . . . The effect is to exclude from hearsay the
entire category of ‘verbal acts’ and ‘verbal parts of an
act,’ in which the statement itself affects the legal rights
of the parties or is a circumstance bearing on conduct
affecting their rights.”87
We stated that “where testimony is offered to establish [the]
existence of a statement rather than to prove [the] truth of that
statement, the hearsay rule does not apply.”88
This statement does not mean that any out-of-court statement
is admissible to show that it was made.89 But a nonhearsay pur-
pose for offering a statement does exist when a statement has
legal significance because it was spoken, independent of the
truth of the matter asserted.
So the county court and district court incorrectly reasoned
that Susan’s statements were inadmissible because offering
them to show her consent could not be separated from the truth
of the matter asserted. Common examples of verbal acts are
words that constitute contractual agreements or terms, or words
that establish an agency relationship.90 Whether such words
have a legal effect does not depend upon the out-of-court
declarant’s credibility.91 And whether the trier of fact finds
that the words were spoken depends upon the in-court witness’
credibility. But that finding is a separate issue from whether the
words had legal significance independent of their truth.
Additionally, the district court erred in concluding that a ver-
bal act can be admitted only to clarify a defendant’s or witness’
ambiguous acts or statements. mcCave did not offer Susan’s
statements to clarify circumstantial evidence that Susan had
impliedly consented to mcCave’s presence by socializing with
him. Instead, he offered her statements to show that she had
87 Alliance Nat. Bank, supra note 86, 223 Neb. at 409, 390 N.W.2d at
491-92.
88 Id. at 409, 390 N.W.2d at 492.
89 See Baker, supra note 79.
90 See, e.g., r. Collin mangrum, mangrum on Nebraska evidence 707-08
(2011); 2 mcCormick on evidence § 249 (kenneth S. Broun et al. eds.,
6th ed. 2006).
91 See Fenner, supra note 82, ch. 1(III)(A)(10).
532 	282 NeBrASkA repOrTS

explicitly consented to his presence at the premises. Because
her statements were a license for him to be on the premises,
they had a legal significance because they were spoken, inde-
pendent of any other conduct or statements.
Susan’s statements were obviously relevant to the central
issues. remember, the State could convict mcCave of second
degree criminal trespass only if it proved that he intended to be
on the property knowing that he was not licensed or privileged
to do so. If the trier of fact had believed that Susan had made
the offered statement, it would have negated the State’s claim
that mcCave knew he was not licensed to be on the property.
Because her statements to mcCave were verbal acts that were
relevant to the central issue in the case, they were not inadmis-
sible as hearsay.
Similarly, Susan’s statements authorizing mcCave to be at
the residence and informing John that she had done so were
relevant under § 28-522 (the statutory affirmative defense) to
determine whether mcCave reasonably believed that she would
have licensed him to enter or remain on the premises. Section
28-522 appears to apply mainly when a defendant cannot show
an explicit license to be on the premises. But there is obvi-
ously an overlap between negating the knowledge element of
the trespass charge and proving the affirmative defense, and
mcCave was entitled to assert both defenses. So in addition
to showing that she consented to mcCave’s presence at her
residence, Susan’s statements were also relevant to show the
effect that they had on mcCave: i.e., to show that because of
her statements, he reasonably believed that she would have
licensed him to remain.
[47] We agree with the State that the withdrawn portion of
our decision in Parker92 is not authority for any purpose. But
the implicit holdings of other cases in which we have admitted
statements to show their impact on the listener are summed
in the following rule, which is applicable here: A statement
offered to prove its impact on the listener, instead of its truth,
is offered for a valid nonhearsay purpose if the listener’s
92 Parker, supra note 76.
STATe v. mcCAve 	533
Cite as 282 Neb. 500

knowledge, belief, response, or state of mind after hearing the
statement is relevant to an issue in the case.93
Because this recognized rule applies, we decline mcCave’s
invitation to consider whether or when the “impact on the lis-
tener” category of nonhearsay statements should include more
general statements to explain the course of events or to provide
context to the evidence presented.94 It is sufficient here that
we hold that Susan’s statements were relevant for more than
one nonhearsay purpose independent of the truth of the matter
asserted. In addition to being admissible as a verbal act, they
were admissible to show why mcCave reasonably believed
he was licensed to be at the premises. We conclude that the
district court erred in affirming the county court’s exclusion of
Susan’s statements as hearsay.
(iii) John’s Statements Did Not Revoke
Susan’s Authorization
As noted, the district court also concluded that even if the
county court’s hearsay ruling was incorrect, it was harmless
error. The district court reasoned that John had revoked Susan’s
authorization of mcCave to enter or remain on the property. We
disagree because this conclusion is inconsistent with the plain
language of the affirmative defense under § 28-522.
[48] Under § 28-521(1)(a), an actor must know that he is not
licensed or privileged to enter because of an actual communi-
cation to the actor. But the statute does not specify who must
make the communication. In contrast, the affirmative defense
under § 28-522 applies if the defendant reasonably believed
that “the owner of the premises or other person empowered
to license access thereto would have licensed him to enter or
remain.”95 It does not require the defendant to have believed
93 See, State v. Hansen, 252 Neb. 489, 562 N.W.2d 840 (1997); State v.
Ege, 227 Neb. 824, 420 N.W.2d 305 (1988); State v. Bear Runner, 198
Neb. 368, 252 N.W.2d 638 (1977). See, also, mangrum, supra note 90,
709-11.
94 See, Parker, supra note 76 (Gerrard, J., concurring); 2 mcCormick on
evidence, supra note 90.
95 § 28-522(3) (emphasis supplied).
534 	282 NeBrASkA repOrTS

that every owner or every person authorized to license access
would have consented to his presence. And § 28-522 antici-
pates that more than one person will have authority to license
access to a property. That is frequently the case, so we construe
the statute to mean that license from “the owner” to access the
premises is satisfied by showing license from “any owner” or
other person authorized to license access to the premises.96
[49] moreover, allowing one owner to revoke the consent of
another co-owner is inconsistent with cotenancy principles that
permit a cotenant to license access to the property without the
consent of another cotenant, at least absent an agreement to the
contrary.97 Finally, a rule that a person entering a property must
have consent from every owner or every person authorized to
license access to the property to avoid a trespass prosecution
would obviously lead to absurd results.98 And when possible,
we will try to avoid a statutory construction that would lead
to an absurd result.99 We conclude that the district court erred
in concluding that Susan’s consent, if proved, was revoked by
John’s subsequent statement telling mcCave to leave.
In sum, both the county court and the district court erred in
concluding that Susan’s statements were inadmissible hearsay.
And we cannot conclude that the improper exclusion of evi-
dence central to the knowledge element of the trespass charge
and mcCave’s reasonable belief under the affirmative defense
did not prejudice his right to a meaningful opportunity to pre-
sent a complete defense.100
7. double JeopArdy does Not preclude
A retriAl for trespAss
Because we have found that the county court’s exclusion of
Susan’s statements was reversible error, we must also consider
96 See Kapler v. Kapler, 755 A.2d 502 (me. 2000).
97 See Kresha v. Kresha, 220 Neb. 598, 371 N.W.2d 280 (1985). See, also,
Verdier v. Verdier, 152 Cal. App. 2d 348, 313 p.2d 123 (1957).
98 See Kapler, supra note 96.
99 Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739
N.W.2d 742 (2007).
100 See Nero, supra note 64.
STATe v. mcCAve 	535
Cite as 282 Neb. 500

whether the admitted evidence was sufficient to sustain the
guilty verdict for the trespass charge. The same sufficiency of
the evidence principles apply in determining whether double
jeopardy permits a retrial of this charge.101
The State presented evidence that John had told mcCave to
leave the premises twice. As discussed, John’s statements did
not revoke Susan’s license to mcCave to be on the premises if
proved. But John told mcCave to leave, and Susan’s statements
were not admitted into evidence. moreover, the State may have
rebutted evidence of Susan’s statements if the court had admit-
ted them. So we conclude that double jeopardy does not pre-
clude a remand for a new trial on the trespass charge.
8. remAiNiNg A ssigNmeNts of error
Because we have reversed mcCave’s DUI conviction, we
need not reach his assignment that the county court erred in
failing to instruct the jury on the definition of a driveway.
Because we have reversed his convictions and remanded for a
new trial on the only remaining charge, second degree trespass,
we need not reach his assignment that the sentences for his
convictions were excessive.
vI. CONCLUSION
We conclude that the lower courts erred in failing to deter-
mine that the officers lacked probable cause to arrest mcCave
for DUI. Because they lacked probable cause, mcCave’s arrest
for DUI was unlawful and the county court erred in failing
to suppress evidence derived from the arrest. This error was
not harmless. And because the evidence was insufficient as a
matter of law to support the guilty verdict, double jeopardy
precludes a retrial on this charge. The unlawful arrest also ren-
dered mcCave’s conviction for refusing to submit to a chemical
test unlawful.
We conclude that the evidence was insufficient as a matter
of law to sustain mcCave’s conviction for possessing alcohol
in an open container.
Finally, the county court erred in excluding evidence rele-
vant to the second degree trespass charge and the statutory
101 See id.
536 	282 NeBrASkA repOrTS

defense to that charge. Although the evidence was sufficient to
support the guilty verdict, the erroneous evidentiary ruling was
not harmless. We reverse this conviction and remand for a new
trial only on that charge.
We reverse the judgments of conviction for DUI, refusing
to submit to a chemical test, and possessing an open container.
We remand the cause with directions to vacate these convic-
tions and sentences and to dismiss the charges.
reversed ANd remANded With directioNs.
DreSSer v. UNION pACIFIC rr. CO. 	537
Cite as 282 Neb. 537
rebeccA l. dresser ANd kristA A. roseNcrANs ,
AppellANts , v. uNioN pAcific rAilroAd
compANy, A corporAtioN, Appellee .
809 N.W.2d 713
Filed October 14, 2011. 	No. S-10-645.
1. Summary Judgment: Appeal and Error. In reviewing a summary judgment, the
court views the evidence in the light most favorable to the party against whom
the judgment was granted and gives such party the benefit of all reasonable infer-
ences deducible from the evidence.
2. Railroads: Motor Vehicles: Negligence. A traveler on a highway, when approach-
ing a railroad crossing, has a duty to look and listen for the approach of trains,
and failure to do so without a reasonable excuse constitutes negligence.
3. Railroads: Motor Vehicles: Right-of-Way. Although railroad trains do not have
an absolute right-of-way at grade crossings under all conditions, an engineer
operating a train has no duty to yield the right-of-way until it appears to a reason-
ably prudent person that to proceed would probably result in a collision. At that
time, it becomes the duty of the engineer to exercise ordinary care to avoid an
accident, even to the extent of yielding the right-of-way.
4. Summary Judgment: Proof. The party moving for summary judgment has the
burden to show that no genuine issue of material fact exists and must produce
sufficient evidence to demonstrate that the moving party is entitled to judgment
as a matter of law.
5. Summary Judgment: Evidence: Proof. After the movant for summary judgment
makes a prima facie case by producing enough evidence to demonstrate that the
movant is entitled to judgment if the evidence was uncontroverted at trial, the
burden to produce evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party opposing the motion.
6. Summary Judgment. Conclusions based upon guess, speculation, conjecture, or
a choice of possibilities do not create material issues of fact for purposes of sum-
mary judgment.