State v. Bixby

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. BIXBY
Cite as 315 Neb. 549
State of Nebraska, appellee, v.
Clay Y. Bixby, appellant.
___ N.W.2d ___
Filed December 8, 2023. 	No. S-23-168.
1. Prior Convictions: Appeal and Error. On a claim of insufficiency of
the evidence, an appellate court, viewing and construing the evidence
most favorably to the State, will not set aside a finding of a previous
conviction for the purposes of sentence enhancement supported by rel-
evant evidence.
2. Sentences: Prior Convictions: Proof. In order to prove a prior convic-
tion for purposes of sentence enhancement, the State has the burden to
prove the fact of the prior convictions by a preponderance of the evi-
dence, and the trial court determines the fact of prior convictions based
upon the preponderance of the evidence standard.
3. Trial: Evidence: Proof. Preponderance of the evidence requires proof
which leads the fact finder to find that the existence of the contested fact
is more probable than its nonexistence.
4. Sentences: Drunk Driving: Prior Convictions: Proof: Time. The
plain and ordinary meaning of Neb. Rev. Stat. § 60-6,197.02 (Reissue
2021) does not require the State to prove the exact date of the prior
offense for purposes of sentence enhancement.
5. Sentences: Prior Convictions: Evidence: Appeal and Error. On an
appeal of a sentence enhancement hearing, an appellate court views and
construes the evidence most favorably to the State.
6. Statutes: Appeal and Error. An appellate court will not resort to inter-
pretation of statutory language to ascertain the meaning of words that
are plain, direct, and unambiguous.
7. Convictions: Presumptions: Right to Counsel: Waiver: Proof. Any
conviction record obtained after Gideon v. Wainwright, 372 U.S. 335,
83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), is entitled to a presumption of
regularity, such that once the government establishes the existence of a
prior conviction, it becomes the defendant’s burden to prove that he or
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www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court Advance Sheets
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STATE v. BIXBY
Cite as 315 Neb. 549
she did not have counsel and did not waive the right to counsel at the
time of conviction.
Appeal from the District Court for Grant County: Travis P.
O’Gorman, Judge. Affirmed.
Bell Island, of Island Law Office, P.C., L.L.O., for appellant.
Michael 	T. 	Hilgers, Attorney 	General, 	and 	Melissa 	R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
INTRODUCTION
Clay Y. Bixby appeals his conviction for driving under the
influence (DUI), third offense. He argues that the district court
for Grant County, Nebraska, erred in using evidence offered by
the State of two prior DUI convictions to enhance his sentence.
Finding no error, we affirm his conviction and sentence.
BACKGROUND
This is Bixby’s third appeal arising from his arrest in March
2018 for DUI. That offense led to the State’s charging Bixby
with DUI under Neb. Rev. Stat. § 60-6,196 (Reissue 2021),
third offense, aggravated, among other charges.
After a mistrial and the denial of Bixby’s plea in bar, 1 we
denied Bixby’s petition for further review. Before Bixby was
to be retried by the State, Bixby moved for absolute discharge
on speedy trial grounds. The district court granted that motion,
but we reversed that decision and remanded the cause for fur-
ther proceedings. 2 Bixby was retried and convicted by a jury of
DUI, a Class W misdemeanor.
1 See State v. Bixby, No. A-19-237, 2020 WL 1026734 (Neb. App. Mar. 3,
2020) (selected for posting to court website).
2 See State v. Bixby, 311 Neb. 110, 971 N.W.2d 120 (2022).

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. BIXBY
Cite as 315 Neb. 549
The 	district 	court 	heard 	Bixby’s 	subsequent 	sentence
enhancement on January 18, 2023. At the hearing, the State
offered two exhibits, exhibits 30 and 31, which the State indi-
cated were records of Bixby’s two prior convictions for DUI
offered for sentence enhancement purposes.
Exhibit 30 was a certified copy of a journal entry and order
of Bixby’s conviction from Thomas County, Nebraska. The
exhibit showed a “CR 10” case identification number. The
exhibit also showed that at a hearing on March 1, 2011, Bixby
pled guilty to “DUI-1st offense” under § 60-6,196, a Class W
misdemeanor. He was sentenced on that same date to terms of
probation, license impoundment, and a fine.
Exhibit 	31 	was 	a 	certified 	copy 	of 	a 	“Judgment 	of
Conviction” from the Sixth Judicial Circuit Court in Bennett
County, South Dakota. The exhibit showed a docket num-
ber beginning with “03C12.” The exhibit also showed that
Bixby was charged by information, was arraigned, and pled
guilty on November 27, 2012, to “driving under influence-1st
of[fense]” under a South Dakota statute, S.D. Codified Laws
§ 32-23-2 (2011). He was sentenced on February 6, 2013, to
terms of imprisonment, license revocation, and a fine.
Neither exhibit contained a copy of the charging docu-
ment, nor specifically identified the date of Bixby’s underlying
DUI offenses. The State did not provide any further evidence
regarding the prior DUI offenses.
Bixby objected to the admission of both exhibits, arguing
that neither met the requirements of a valid prior conviction for
purposes of sentence enhancement. Bixby articulated several
different reasons why the prior convictions were invalid for
sentence enhancement. These arguments are largely the same
as those Bixby now raises on appeal and will be detailed in
our analysis.
The district court entered its order on February 15, 2023,
finding that both of Bixby’s prior convictions were valid for
purposes of sentence enhancement. In relevant part, the order
stated the following:

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Nebraska Supreme Court Advance Sheets
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STATE v. BIXBY
Cite as 315 Neb. 549
The [S]tate made a prima facie case with respect to
both Exhibits 30 and 31. The offense at issue in this case
occurred on March 9, 2018. The State can enhance with
prior convictions dating back to March 9, 2003. The sen-
tencing in Exhibit 30 occurred on March 1, 2011. The
case has a CR 10 case number, meaning the case was
filed in 2010. If this offense occurred prior to March
9, 2003, that would mean there was a delay in charg-
ing, convicting and sentencing of over seven years. This
is unreasonable.
Likewise, the sentencing in Exhibit 31 occurred on
February 6, 2013. That would require a delay of over 9
years. Again, this is unreasonable. Both exhibits are prima
facie valid for enhancement purposes. The State proved
by a preponderance of the evidence that both prior con-
victions occurred within 15 years of the offense at issue.
The burden shifted to [Bixby] to show the court other-
wise. [He] failed to do so.
. . . .
[Bixby] also challenges Exhibit 31, a South Dakota
conviction, on the ground that the State failed to show
that the law[s] in South Dakota and Nebraska . . . have
the same scope and application. This Court disagrees.
Although the statute cited in Exhibit 31 (32-12-2) is
the sentencing statute, [Bixby] was obviously convicted
under 32-23-1, the [DUI] statute. In South Dakota, one
can be convicted of DUI if there is 0.08 percent or more
[by] weight of alcohol in that person’s blood. The same
is true in Nebraska. In addition, South Dakota defined
“under the influence” as “to a degree which renders
the person incapable of safely driving.” This is similar
to Nebraska’s definition as “sufficient to impair to any
appreciable degree the ability to operate a motor vehicle
in a prudent and cautious manner.” The burden then
shifted to [Bixby] to “bring mitigating facts to the atten-
tion of the court[]” to show otherwise.

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Nebraska Supreme Court Advance Sheets
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STATE v. BIXBY
Cite as 315 Neb. 549
Exhibits 30 and 31 are both valid and usable prior con-
victions. Both are admitted. [Bixby] will be sentenced on
a third offense [DUI], a Class W Misdemeanor.
Having enhanced Bixby’s DUI conviction to a third offense,
the district court consequently sentenced him to 18 months of
probation, a $1,000 fine, and a 2-year license revocation.
Bixby timely filed the present appeal, and we moved the
case to our docket. 3
ASSIGNMENT OF ERROR
Bixby assigns, restated, that the district court erred in enhanc-
ing his DUI conviction to a third offense because the two prior
DUI convictions were invalid for enhancement purposes.
STANDARD OF REVIEW
[1] On a claim of insufficiency of the evidence, an appellate
court, viewing and construing the evidence most favorably to
the State, will not set aside a finding of a previous conviction
for the purposes of sentence enhancement supported by rel-
evant evidence. 4
ANALYSIS
Bixby’s sole argument on appeal is that the district court
erred in enhancing his DUI conviction to a third offense because
the two prior DUI convictions were invalid for enhancement
purposes. In support of this assigned error, Bixby argues that
the prior convictions were invalid for three different reasons.
Before addressing each of these arguments below, we briefly
review the relevant law governing prior convictions and sen-
tence enhancement.
[2,3] We declared some years ago that in order to prove a
prior conviction for purposes of sentence enhancement, the
3 See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2022).
4 See, State v. Gilliam, 292 Neb. 770, 874 N.W.2d 48 (2016); State v. Taylor,
286 Neb. 966, 840 N.W.2d 526 (2013).

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Nebraska Supreme Court Advance Sheets
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STATE v. BIXBY
Cite as 315 Neb. 549
State has the burden to prove the fact of the prior conviction
by a preponderance of the evidence, and that the trial court
determines the fact of prior convictions based upon the pre-
ponderance of the evidence standard. 5 A preponderance of the
evidence requires proof which leads the fact finder to find that
the existence of the contested fact is more probable than its
nonexistence. 6 In other words, a preponderance of the evidence
is the equivalent of the greater weight of the evidence. 7 The
greater weight of the evidence requires proof which leads the
trier of fact to find that the existence of the contested fact is
more likely true than not true. 8
Neb. Rev. Stat. § 60-6,197.02 (Reissue 2021) details the
process for determining what constitutes a valid prior DUI
offense for purposes of sentence enhancement. It provides that
for purposes of sentence enhancement, a “[p]rior conviction”
is “a conviction for a violation committed within the fifteen-
year period prior to the offense for which the sentence is being
imposed.” 9 This includes (1) any conviction for a violation of
§ 60-6,196—which is what Bixby was convicted of in both
of his Nebraska DUI prosecutions—or for another Nebraska
DUI statute, 10 (2) any conviction for a violation of a Nebraska
DUI ordinance enacted in conformance with a Nebraska DUI
statute, 11 and (3) “[a]ny conviction under a law of another
5 See, State v. Hurbenca, 266 Neb. 853, 669 N.W.2d 668 (2003). See, also,
State v. Teppert, 307 Neb. 695, 950 N.W.2d 594 (2020); Taylor, supra note
4; State v. Macek, 278 Neb. 967, 774 N.W.2d 749 (2009); State v. Hall,
270 Neb. 669, 708 N.W.2d 209 (2005).
6 Taylor, supra note 4. See, also, State v. Ebert, 303 Neb. 394, 402,
929 N.W.2d 478, 484 (2019) (“[m]ore probable than not” is generally
preponderance of evidence standard).
7 Gilliam, supra note 4; Flores v. Flores-Guerrero, 290 Neb. 248, 859
N.W.2d 578 (2015).
8 Gilliam, supra note 4.
9 § 60-6,197.02(1)(a).
10 See § 60-6,197.02(1)(a)(i)(A).
11 See § 60-6,197.02(1)(a)(i)(B).

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STATE v. BIXBY
Cite as 315 Neb. 549
state if, at the time of the conviction under the law of such
other state, the offense for which the person was convicted
would have been a violation of” one of Nebraska’s DUI
statutes. 12 We have interpreted “conviction” for purposes of
§ 60-6,197.02 to mean “a finding of guilt by a jury or a judge,
or a judge’s acceptance of a plea of guilty or no contest.” 13
The statute also defines “[f]ifteen-year period” as “the period
computed from the date of the prior offense to the date of the
offense which resulted in the conviction for which the sentence
is being imposed.” 14
To prove the prior conviction for sentence enhancement
under § 60-6,197.02(2), “[t]he prosecutor shall present as evi-
dence for purposes of sentence enhancement a court-certified
copy or an authenticated copy of a prior conviction in another
state. 	The 	court-certified 	or 	authenticated 	copy 	shall 	be
prima facie evidence of such prior conviction.” According to
§ 60-6,197.02(3), after the State meets its burden of proving
the fact of the prior convictions, the convicted person is then
“given the opportunity to review the record of his or her prior
convictions, bring mitigating facts to the attention of the court
prior to sentencing, and make objections on the record regard-
ing the validity of such prior convictions.”
Simply put, here, for the State to enhance Bixby’s present
DUI conviction to a third offense, it had the burden to prove by
a preponderance of the evidence that (1) the offense underly-
ing each prior conviction either was a violation of a Nebraska
DUI statute or ordinance or, if from another state, would have
also been a violation of a Nebraska DUI statute and (2) the
date of the offense underlying each conviction occurred within
15 years of the date of the current offense.
12 § 60-6,197.02(1)(a)(i)(C). Accord, State v. Brown, 300 Neb. 57, 912
N.W.2d 241 (2018); Gilliam, supra note 4.
13 Gilliam, supra note 4, 292 Neb. at 782, 874 N.W.2d at 57.
14 § 60-6,197.02(1)(c).

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Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
STATE v. BIXBY
Cite as 315 Neb. 549
Prior Offenses Occurred Within
15 Years of Current Offense
Bixby first argues that the State failed to prove by a pre-
ponderance of the evidence that the offenses underlying both
of his prior convictions occurred within 15 years of the date
of his current offense. Specifically, Bixby argues that exhibits
30 and 31 failed to show any evidence of the dates of his prior
offenses and that, in effect, the district court had to guess the
dates of the offenses. We disagree.
[4] Bixby is correct that neither prior conviction record
explicitly showed the date on which that prior offense was
committed. However, as we established in State v. Taylor, 15
prior conviction records do not have to list the exact date of the
prior offense to be used for sentence enhancement. More spe-
cifically, we held in Taylor that the plain and ordinary meaning
of § 60-6,197.02 does not require the State to prove the exact
date of the prior offense for purposes of sentence enhance-
ment. 16 Although having proof of the exact offense date would
be the easiest method of proof, the statute does not require
an exact date. 17 Rather, the State must prove by a preponder-
ance of the evidence that the prior offense occurred in the 15
years prior to the current offense. 18 That said, what constitutes
relevant evidence sufficient to satisfy the State’s burden in
proving the fact of a prior conviction for purposes of sentence
enhancement will vary from case to case.
[5] On an appeal of a sentence enhancement hearing, we
view and construe the evidence most favorably to the State. 19
Further, we have long held that judgments imposing sentences
in a criminal case are entitled to a presumption of regularity
15 Taylor, supra note 4.
16 See id.
17 Id.
18 See id.
19 Id.; State v. Brooks, 22 Neb. App. 598, 858 N.W.2d 267 (2014).

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Nebraska Supreme Court Advance Sheets
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STATE v. BIXBY
Cite as 315 Neb. 549
and validity. 20 Here, the record is clear that Bixby’s current
DUI offense was committed on March 9, 2018. Thus, looking
back 15 years, the State had the burden of proving by a prepon-
derance of the evidence that the underlying offense for any of
Bixby’s prior convictions occurred on or after March 9, 2003.
Viewing and construing exhibits 30 and 31 most favorably to
the State and affording the exhibits a presumption of regular-
ity and validity, we find that there was sufficient evidence to
satisfy the State’s burden.
Exhibit 30, the prior conviction from Thomas County,
showed that Bixby pled guilty and was sentenced at a hear-
ing on March 1, 2011. Further, the prior conviction showed
that Bixby’s case had a “CR 10” identification number, more
than likely meaning the case was initially filed in 2010. The
State could enhance Bixby’s current conviction with prior con-
victions of offenses occurring as far back as March 9, 2003.
Despite no date of offense listed in the exhibit, the district
court found that it would be unreasonable to conclude there
was a delay of over 7 years between the case’s filing date and
when Bixby was charged, convicted, and sentenced. We find no
error in that conclusion.
The same can be said of exhibit 31, the prior conviction
from South Dakota. The exhibit showed that Bixby was
charged, was arraigned, and pled guilty on November 27,
2012, and then was sentenced on February 6, 2013. Further,
the prior conviction shows that Bixby’s case had a “C12”
identification number. It was more than likely that the case
was initially filed in 2012. Again, the State had to prove the
offense occurred on or after March 9, 2003. Despite no date
of offense listed in the exhibit, the district court similarly
found that it would be unreasonable to conclude there was a
delay of over 9 years between the case’s filing date and when
Bixby was charged, convicted, and sentenced. We again find
no error in the court’s conclusion.
20 See, e.g., State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020).

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STATE v. BIXBY
Cite as 315 Neb. 549
Further, the relevant statutes of limitations for Bixby to be
prosecuted for his prior DUI offenses provide additional sup-
port to our conclusion. Bixby was convicted in the present case
of DUI under § 60-6,196. As shown in exhibit 30, Bixby was
convicted under that statute for his first Nebraska DUI offense
as well. According to Neb. Rev. Stat. § 60-6,197.03 (Reissue
2021), as well as exhibit 30 and the present record, both of
Bixby’s Nebraska DUI convictions were Class W misdemean-
ors. 21 Exhibit 31 similarly shows that Bixby was convicted in
South Dakota under § 32-23-2. Exhibit 31 does not show the
classification of that offense; however, at the enhancement
hearing, Bixby offered exhibit 32, which is a copy of the text
of § 32-23-2 (Supp. 2023), which is the current version of that
statute and provides, in relevant part, that “[i]f conviction for a
violation of § 32-23-1 is for a first offense, the person is guilty
of a Class 1 misdemeanor.”
We take judicial notice of the fact 22 that at the time of
each of Bixby’s prior convictions and the present appeal,
the statute of limitations for a person to be prosecuted for a
Class W misdemeanor in Nebraska was 18 months 23 and the
statute of limitations for a person to be prosecuted for a Class
1 misdemeanor in South Dakota was 7 years. 24 Applying the
relevant statutes of limitations here, Bixby must have been
charged within 18 months of the date of the offense for his
21 Accord Neb. Rev. Stat. § 28-106(1) (Reissue 2016).
22 See, Burns v. Burns, 293 Neb. 633, 640, 879 N.W.2d 375, 382 (2016)
(“[a] court may judicially notice adjudicative facts, which are not subject
to reasonable dispute, at any stage of the proceeding”); State v. Thayer,
235 Neb. 70, 72, 453 N.W.2d 474, 476 (1990) (“it is the duty of [all]
courts to take judicial notice of the laws enacted by the Legislature [and]
the public law prevailing within the forum. This is rule is applicable to
all general statutes”). See, also, Neb. Rev. Stat. § 25-12,101 (Reissue
2016) (providing that every court in Nebraska must take judicial notice of
statutes of other states).
23 See Neb. Rev. Stat. § 29-110(2) (Reissue 2016).
24 See S.D. Codified Laws § 23A-42-2 (2016).

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STATE v. BIXBY
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Nebraska DUI conviction and within 7 years of the date of
the offense for his South Dakota DUI conviction. Bixby’s
prior Nebraska case was more than likely filed in 2010, and
he pled guilty and was sentenced in 2011. His South Dakota
case was more than likely filed in 2012, and he pled guilty in
2012 and was sentenced in 2013. As such, we agree with the
State that the statutes of limitations provide additional bases
as to why Bixby more likely than not committed both prior
DUI offenses on or after March 9, 2003, within 15 years of
his current offense.
We also note that Bixby’s argument about the prior convic-
tions’ failing to show a date of offense mirrors the argument
made by the defendant in Taylor. 25 There, the State had to
prove by a preponderance of the evidence that the defendant
committed his prior DUI offense after 1999. 26 However, as
here, the defendant’s prior conviction record did not list the
date of the underlying offense. 27 Nonetheless, at the sentence
enhancement hearing in Taylor, there was evidence presented
that the defendant had been charged in the prior case with
DUI with a blood alcohol concentration of .08 of 1 gram or
more by weight of alcohol per 210 liters of breath. 28 That
fact proved to be crucial in our analysis because, in 2001,
the Nebraska Legislature lowered the prohibited blood alco-
hol concentration level from .10 to .08. 29 Accordingly, even
though the prior conviction record did not list the date of the
prior offense, we concluded that the preponderance of the evi-
dence established that the defendant’s DUI offense occurred
after 2001. 30
25 Taylor, supra note 4.
26 Id.
27 Id.
28 Id.
29 Id.
30 Id.

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STATE v. BIXBY
Cite as 315 Neb. 549
We find the rationale in Taylor to be instructive. In the same
way here, despite Bixby’s prior conviction records’ not listing
the dates of the offenses, there was sufficient evidence from
exhibits 30 and 31 to conclude that the offenses were commit-
ted after 2003, within the 15-year look-back period.
For these reasons, we conclude that the relevant evidence
supports the district court’s finding that the State met its
burden, proving by a preponderance of the evidence that
the prior offenses occurred within 15 years of the date of
Bixby’s current offense. Viewing and construing that evidence
most favorably to the State, we find no error in the district
court’s finding.
As noted above, according to § 60-6,197.02(3), after the
State met its burden of proving the fact of Bixby’s prior con-
victions for sentence enhancement, the burden then shifted to
Bixby to review his prior conviction records, bring mitigating
facts to the attention of the court prior to sentencing, and make
objections on the record regarding the validity of such prior
convictions. Bixby had the opportunity to present his own
evidence showing that his prior convictions occurred before
March 9, 2003, outside the 15-year look-back period from the
date of his current offense, thus rendering them invalid for
enhancement purposes.
Yet, the only evidence Bixby presented was the text of
the statute cited in exhibit 31 that he was convicted under in
South Dakota, which is addressed later in our analysis. As
we explained in both Taylor 31 and State v. Garcia, 32 defend-
ants in enhancement proceedings are in a unique position to
produce evidence concerning their prior convictions because
it is peculiarly within their knowledge. Bixby knew when
his prior DUI offenses occurred, more so than the State and
district court. If the offenses underlying his 2011 Nebraska
31 Id.
32 State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011), overruled on other
grounds, Vann, supra note 20.

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conviction and 2013 South Dakota conviction occurred out-
side the 15-year look-back period, that fact would go to an
essential element of his enhanced sentence. It was Bixby’s
burden to produce evidence to that effect and rebut the State’s
prima facie case for enhancement. 33 Bixby failed to do so
here. We accordingly infer that such evidence cannot be pro-
duced. 34 Even if we were to agree with Bixby that there are
reasons why there could have been a delay between the dates
of his prior offenses and his conviction and sentencing dates,
explaining why the offenses may have occurred before March
9, 2003, nothing in the record indicates that Bixby made such
an argument to the district court at the enhancement hearing
or presented any evidence in support of this argument.
Our conclusion in favor of the State aside, we emphasize
that had the State offered the charging documents underlying
Bixby’s prior convictions to the district court, it would have
been much simpler to prove the dates of the prior offenses
and the fact that they occurred within 15 years of the current
offense. Here, enough information could be gleaned from the
prior conviction records that the State offered to conclude
that the State met its burden. However, that may not always
be the case.
Similarity of South Dakota DUI Statute
to Nebraska DUI Statute
Bixby next argues that the district court erred in enhancing
his DUI conviction to a third offense because his conviction
for DUI in South Dakota under § 32-23-2 (2011) was not
substantially similar to his conviction for DUI in Nebraska
33 See Garcia, supra note 32, 281 Neb. at 12-13, 792 N.W.2d at 891 (“it is
not fundamentally unfair to consider the relative positions of the defendant
and the prosecution in this regard and to place at least the burden of
production on the defendant to show that a prior conviction cannot be used
for enhancement”).
34 See Garcia, supra note 32 (citing State v. Minor, 188 Neb. 23, 195
N.W.2d 155 (1972)).

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under § 60-6,196. In particular, Bixby contends that the two
states’ DUI statutes contained different elements and that
thus, the offense for which he was convicted in South Dakota
would not have been a violation of § 60-6,196 and could not
have been used for sentence enhancement. We disagree.
As the State correctly asserts on appeal, Bixby’s argument
is based on an improper comparison between § 32-23-2 and
§ 60-6,196. Although exhibit 31 shows that Bixby was con-
victed of DUI, first offense, under § 32-23-2, that statute is
merely a sentencing statute, setting forth the penalty for a
violation of a separate statute, S.D. Codified Laws § 32-23-1
(2011). Exhibit 32, which Bixby offered, was a copy of the text
of § 32-23-2 (Supp. 2023), which is the current version of that
statute and provides, in relevant part, as follows:
If conviction for a violation of § 32-23-1 is for a first
offense, the person is guilty of a Class 1 misdemeanor,
and the court shall revoke the person’s driver license for
not less than thirty days. . . . The court may also order the
revocation of the person’s driving privilege for a further
period not to exceed one year or restrict the privilege
in such manner as it sees fit for a period not to exceed
one year.
It would be unreasonable to deem Bixby’s South Dakota prior
conviction invalid for sentence enhancement solely because the
South Dakota judgment of conviction cites § 32-23-2 (2011),
rather than § 32-23-1. As the text of § 32-23-2 makes clear,
§ 32-23-2 sets forth the penalties a person will be subjected to
only “[i]f conviction for a violation of § 32-23-1 is for a first
offense.” It is therefore apparent that Bixby’s conviction for a
violation of § 32-23-1 as a first offense was a prerequisite to
the imposition of the sentence and penalties in § 32-23-2. Bixby
could not have been sentenced without first being convicted.
True enough, § 32-23-2, a sentencing statute, and § 60-6,196,
a substantive DUI statute, do not share the same elements
for a DUI. However, we find that the appropriate comparison

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of statutes here is between § 60-6,196 and § 32-23-1 (South
Dakota’s substantive DUI statute).
The starting point in a comparison of another state’s statu-
torily defined offense to a Nebraska statutory DUI offense
should be to compare the relevant statutory language in the
other state to the language of the relevant Nebraska statute. 35
This is because the definition of “prior conviction” under
§ 60-6,197.02 includes a conviction in another state when
the offense for which the person was convicted would have
been a violation of § 60-6,196 or one of the other enumerated
Nebraska DUI-related statutes. 36 After an initial compari-
son of the other state’s statutory definition of the offense to
Nebraska’s statutory definition of a DUI-related offense, if
it is clear that the offense as statutorily defined in the other
state would have been a violation of the relevant Nebraska
statute, no further inquiry is required. 37 The prior convic-
tion must be for the offense of DUI to be valid for sentence
enhancement. 38
Turning to the DUI statutes at issue here, § 60-6,196 states
in relevant part:
(1) It shall be unlawful for any person to operate or be
in the actual physical control of any motor vehicle:
(a) While under the influence of alcoholic liquor or of
any drug;
. . . .
(c) When such person has a concentration of eight-
hundredths of one gram or more by weight of alcohol per
two hundred ten liters of his or her breath.
Similarly, § 32-23-1 states, in relevant part:
No person may drive or be in actual physical control of
any vehicle while:
35 Brown, supra note 12.
36 Id.
37 Id.
38 See id.

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(1) There is 0.08 percent or more by weight of alcohol
in that person’s blood as shown by chemical analysis of
that person’s breath, blood, or other bodily substance;
(2) Under the influence of an alcoholic beverage, mari-
juana, or any controlled drug or substance not obtained
pursuant to a valid prescription, or any combination of
an alcoholic beverage, marijuana, or such controlled drug
or substance;
(3) Under the influence of any controlled drug or sub-
stance obtained pursuant to a valid prescription, or any
other substance, to a degree which renders the person
incapable of safely driving;
(4) Under the combined influence of an alcoholic bev-
erage and or any controlled drug or substance obtained
pursuant to a valid prescription, or any other substance,
to a degree which renders the person incapable of safely
driving[.]
[6] In comparing these statutes, we find that the text of both
is plain and unambiguous. An appellate court will not resort
to interpretation of statutory language to ascertain the mean-
ing of words that are plain, direct, and unambiguous. 39 Both
statutes prohibit a person from operating, driving, or being in
actual physical control of a vehicle while under the influence
of alcohol or any drug or while having a blood alcohol concen-
tration of .08 percent or more. In essence, both statutes include
the same elements necessary to establish a conviction for DUI.
We therefore conclude that Bixby’s DUI conviction in South
Dakota would have been a violation of § 60-6,196 as well and
is thus valid to be used for sentence enhancement. 40
Bixby relies on a Nebraska Court of Appeals decision, State
v. Miller, 41 to suggest that the South Dakota conviction was
39 See State v. Brennauer, 314 Neb. 782, 993 N.W.2d 305 (2023).
40 See Brown, supra note 12. Cf. State v. Mitchell, 285 Neb. 88, 825 N.W.2d
429 (2013).
41 State v. Miller, 11 Neb. App. 404, 651 N.W.2d 594 (2002) (superseded by
statute on other grounds, specifically § 60-6,197.02(2)).

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also invalid because the State failed to offer the South Dakota
charging document setting out the elements of the crime he
was eventually convicted of and that in effect, the district court
here could not compare the elements of Bixby’s Nebraska
DUI with the elements of his South Dakota DUI. But as we
mentioned previously, while offering a copy of a charging
document is perhaps the best practice to prove the fact of a
prior conviction for purposes of sentence enhancement, it is
not required in order for the State to meet its burden. Bixby’s
reading of Miller to suggest otherwise is misguided.
In 	addition, 	it 	is 	not 	the 	State’s 	initial 	burden 	under
§ 60-6,197.02 to show a substantial similarity of every element
of the respective DUI laws or show that the facts surround-
ing the prior conviction would have resulted in a violation
of Nebraska DUI laws as they existed at that time. 42 A court-
certified or authenticated copy of a prior conviction—like
exhibit 31—is prima facie evidence of such conviction for pur-
poses of sentence enhancement. 43 The burden then shifted to
Bixby to challenge the validity of the prior conviction, which
he failed to adequately do.
Given our finding that Bixby’s South Dakota DUI offense,
as statutorily defined in South Dakota, would have been a
violation of the Nebraska DUI statute that Bixby was twice
convicted of, no further inquiry is required. 44 Bixby’s convic-
tion under South Dakota law was for the offense of DUI and
was sufficiently similar to his DUI convictions under Nebraska
law. We conclude that the district court did not err in finding
Bixby’s South Dakota DUI conviction was valid for enhance-
ment purposes.
Mitigating Factors
Bixby lastly argues that the district court erred in enhanc-
ing 	his 	DUI 	conviction 	to 	a 	third 	offense 	because 	the
42 Mitchell, supra note 40; Garcia, supra note 32.
43 § 60-6,197.02(2).
44 See Brown, supra note 12.

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court 	failed 	to 	consider 	mitigating 	factors 	pursuant 	to
§ 60-6,197.02(3). As noted above, once the State met its
burden of proving the fact of Bixby’s prior convictions for
purposes of sentence enhancement, Bixby then had the oppor-
tunity under § 60-6,197.02(3) to bring mitigating facts to the
attention of the court prior to sentencing. Bixby argues that
the mitigating fact here was that the South Dakota prior con-
viction from 2013 showed that he was represented by counsel
on the date he pled guilty, yet failed to show that he was
represented by or waived counsel on the date of his sentenc-
ing. But as Bixby correctly acknowledged at the enhancement
hearing, this argument is foreclosed by our precedent, namely
State v. Vann. 45
[7] We stated in Vann that any conviction record obtained
after Gideon v. Wainwright 46 is entitled to a presumption of
regularity, such that once the government establishes the exis-
tence of a prior conviction, it becomes the defendant’s burden
to prove that he or she did not have counsel and did not waive
the right to counsel at the time of conviction. 47 Accordingly,
courts can presume that a defendant had or waived counsel at
the time of a prior conviction and records of conviction are
admissible unless the defendant can show that he or she did not
have or waive counsel at the time of conviction. 48
Bixby does not challenge Vann on appeal; he argues only
that had the district court convicted and sentenced him when
his present case was initiated in 2018, before Vann was
decided, it would have determined that the 2013 South Dakota
prior conviction was invalid for sentence enhancement because
it fails to show that he had or waived counsel at the time of
45 Vann, supra note 20. See, also, State v. Warlick, 308 Neb. 656, 956 N.W.2d
269 (2021); Teppert, supra note 5.
46 Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799
(1963).
47 See Vann, supra note 20.
48 See id.

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his sentencing. This argument is without merit. Despite the
pre-Vann status of the law at the early pendency of Bixby’s
case, the sentence enhancement hearing and district court
order that Bixby challenges in this appeal occurred in 2023,
after Vann. Bixby’s South Dakota DUI conviction is therefore
valid for sentence enhancement purposes under Vann, even
though exhibit 31 does not show whether Bixby had or waived
counsel at the time of his sentencing in that case.
We further agree with the State that even though exhibit
31 does not show the presence or waiver of counsel at
Bixby’s sentencing, that could be only a mitigating fact under
§ 60-6,197.02(3) that the district court could have considered
in determining Bixby’s sentence within the enhanced pen-
alty range for DUI, third offense, not a fact that would allow
the court to disregard the otherwise valid prior conviction
altogether. 49 We therefore find that the district court did not
err by failing to consider mitigating factors when enhancing
Bixby’s sentence.
CONCLUSION
For the foregoing reasons, we conclude that the district
court’s use of Bixby’s two prior convictions to enhance his
sentence to DUI, third offense, was not in error. Therefore,
we affirm.
Affirmed.
49 See Brooks, supra note 19.