State v. Gilliam
Neb.
Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
02/12/2016 08:24 AM CST
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Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. GILLIAM
Cite as 292 Neb. 770
State of Nebraska, appellee, v.
Jeffrey Gilliam, appellant.
___ N.W.2d ___
Filed February 12, 2016. No. S-15-373.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. In reviewing a trial court’s ruling on a motion to sup-
press evidence based on a claimed violation of the Fourth Amendment,
an appellate court applies a two-part standard of review. Regarding
historical facts, an appellate court reviews the trial court’s findings for
clear error. But whether those facts trigger or violate Fourth Amendment
protections is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the determination made by the
court below.
3. 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.
4. Constitutional Law: Search and Seizure. The Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
5. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit
of an illegal search or seizure is inadmissible in a state prosecution and
must be excluded.
6. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure: Appeal and Error. To determine whether an encounter
between an officer and a citizen reaches the level of a seizure under
the Fourth Amendment to the U.S. Constitution, an appellate court
employs the analysis set forth in State v. Van Ackeren, 242 Neb. 479,
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495 N.W.2d 630 (1993), which describes the three levels, or tiers, of
police-citizen encounters.
7. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure. A tier-one police-citizen encounter involves the voluntary
cooperation of the citizen elicited through noncoercive questioning and
does not involve any restraint of liberty of the citizen. Because tier-one
encounters do not rise to the level of a seizure, they are outside the
realm of Fourth Amendment protection.
8. Police Officers and Sheriffs: Search and Seizure. A tier-two police-
citizen encounter constitutes an investigatory stop as defined by Terry
v. Ohio, 392 U.S. 1,88 S. Ct. 1868
,20 L. Ed. 2d 889
(1968). Such
an encounter involves a brief, nonintrusive detention during a frisk for
weapons or preliminary questioning.
9. Police Officers and Sheriffs: Search and Seizure: Arrests. A tier-
three police-citizen encounter constitutes an arrest. An arrest involves a
highly intrusive or lengthy search or detention.
10. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure. Tier-two and tier-three police-citizen encounters are seizures
sufficient to invoke the protections of the Fourth Amendment to the
U.S. Constitution.
11. Constitutional Law: Search and Seizure. A seizure in the Fourth
Amendment context occurs only if, in view of all the circumstances sur-
rounding the incident, a reasonable person would have believed that he
or she was not free to leave.
12. ____: ____. In addition to situations where an officer directly tells a sus-
pect that he or she is not free to go, circumstances indicative of a seizure
may include the threatening presence of several officers, the display of a
weapon by an officer, some physical touching of the citizen’s person, or
the use of language or tone of voice indicating the compliance with the
officer’s request might be compelled.
13. Constitutional Law: Police Officers and Sheriffs: Search and
Seizure. A police officer’s merely questioning an individual in a public
place, such as asking for identification, is not a seizure subject to Fourth
Amendment protections, so long as the questioning is carried on without
interrupting or restraining the person’s movement.
14. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
15. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the legislative language.
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16. Drunk Driving: Prior Convictions: Words and Phrases. For the pur-
poses of Neb. Rev. Stat. § 60-6,197.02 (Cum. Supp. 2014), the word
“conviction” means a finding of guilt by a jury or a judge, or a judge’s
acceptance of a plea of guilty or no contest.
17. 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 prior convictions by the greater weight of the evidence,
and the trial court determines the fact of prior convictions based upon
the greater weight of the evidence standard.
18. Trial: Evidence: Proof. The greater weight of the evidence requires
proof which leads the trier of fact to find that the existence of the con-
tested fact is more likely true than not true.
Appeal from the District Court for Lancaster County:
Stephanie F. Stacy, Judge. Affirmed.
Mark E. Rappl for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, and
Cassel, JJ.
Cassel, J.
I. INTRODUCTION
In this direct appeal, Jeffrey Gilliam challenges the district
court’s denial of his pretrial motion to suppress evidence and
the court’s use of a conviction from a Missouri court to enhance
his sentence for driving under the influence of alcohol (DUI).
We reject Gilliam’s first argument, because his initial encoun-
ter with police fell outside the realm of the Fourth Amendment.
And his argument regarding enhancement fails, because a
suspended imposition of sentence in the prior Missouri case
qualifies as a “prior conviction” under the pertinent statute. We
affirm his conviction and sentence.
II. BACKGROUND
Gilliam was arrested for DUI after an encounter with a
police officer. An information filed in the district court for
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Lancaster County charged Gilliam with DUI and alleged that
Gilliam had two prior convictions.
1. Motion to Suppress
Gilliam filed a pretrial motion to suppress all evidence gath-
ered as a result of his encounter with the police officer. He
argued that he was seized and that his seizure was unsupported
by reasonable suspicion.
(a) Hearing
Officer Brock Wagner of the Lincoln Police Department
testified at the suppression hearing. Wagner testified that on
May 26, 2013, at approximately 5:39 a.m., he received a report
from police dispatch that a white Dodge Ram, license plate
No. SYD 417, was parked partially on the curb and partially
on the street in the area of Ninth and A Streets. Wagner drove
to the area in his marked patrol unit to investigate, but he did
not see the reported Dodge Ram when he arrived. He turned
onto a different street, where he saw the reported Dodge Ram
parked legally on the side of the street. It was running, and its
lights were on.
Wagner pulled behind the Dodge Ram and activated his
patrol unit’s overhead lights. He exited his patrol unit, knocked
on the window, and directed Gilliam, who was in the driver’s
seat, to roll down the window, and Gilliam complied. Wagner
observed that Gilliam had a strong odor of alcohol on his
breath; watery, bloodshot eyes; and slurred speech. Wagner
asked to see Gilliam’s driver’s license, and Gilliam produced
it. Wagner then conducted a DUI investigation and arrested
Gilliam for DUI. Wagner testified that he was dressed in his
uniform, wearing his badge, and carrying a gun when his
encounter with Gilliam occurred.
(b) Order
At the end of the suppression hearing, the district court
took the matter under advisement. It later issued a written
order overruling Gilliam’s motion to suppress. It concluded
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that Gilliam’s encounter with Wagner did not begin as a sei-
zure; rather, it began as a consensual or “first-tier” encounter
that did not implicate Fourth Amendment protections. The
district court further concluded that Wagner had reasonable
suspicion to expand his initial contact with Gilliam into a
DUI investigation.
The district court rejected Gilliam’s argument that “‘a per-
son in a parked vehicle is seized at the moment when the offi-
cer activates the emergency lights.’” It explained that “there
are a myriad of circumstances under which police are autho-
rized to use overhead lights—many of which have nothing
whatsoever to do with a seizure.” And it observed that adopting
Gilliam’s approach “would have the practical effect of making
every police-citizen contact a seizure once overhead lights are
activated, regardless of the other circumstances surrounding
the contact.”
Finally, the district court concluded that Wagner obtained
reasonable suspicion to extend the encounter into a DUI inves-
tigation when Gilliam rolled down his window. At that point,
Wagner observed the strong odor of alcohol and Gilliam’s
bloodshot eyes and slurred speech, which provided reasonable
suspicion of criminal activity.
2. Enhancement
Gilliam proceeded to trial and was convicted by a jury of
DUI. An enhancement hearing was held, and the State offered
two exhibits: a certified copy of a prior DUI conviction from
Nebraska and a certified copy of a document from Missouri
titled “JUDGMENT OF COURT UPON PLEA OF GUILTY”
(Missouri judgment). The Missouri judgment indicated that
in 2004, Gilliam appeared with an attorney and pled guilty
to driving while intoxicated (DWI) in a Missouri court. It
showed that the judge found a factual basis for Gilliam’s plea
of guilty, approved it, and accepted it. But it also showed that
the imposition of his sentence was suspended and that he was
placed on probation for 2 years.
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STATE v. GILLIAM
Cite as 292 Neb. 770
Gilliam did not object to the receipt of the Missouri judg-
ment, but argued that because the suspended imposition of a
sentence is not considered a final judgment1 or a conviction2
in Missouri, it cannot be considered a prior conviction for the
purposes of sentence enhancement under Nebraska law. He
asked the court to take judicial notice of the Missouri sen-
tencing statute that authorizes courts to suspend the imposi-
tion of a sentence,3 but he otherwise presented no evidence at
the hearing.
The district court concluded that the State had met its initial
burden of proving Gilliam’s prior Missouri DWI conviction
by a preponderance of the evidence. It determined that the
Missouri judgment “reflects, with requisite trustworthiness, the
Missouri court’s acceptance of [Gilliam’s] guilty plea to the
charge of DWI and the court’s act of rendering judgment and
disposition thereon.” It also found that the Missouri conviction
was counseled and that the offense would have been a violation
of Nebraska’s DUI laws.
The district court noted that once the State had met its bur-
den, the burden shifted to Gilliam to introduce evidence “rebut-
ting the statutory presumption that the Missouri [judgment]
is valid for purposes of enhancement.” Gilliam presented no
evidence. Accordingly, the district court found that Gilliam was
convicted of DUI or the equivalent offense on two prior occa-
sions. And it concluded that the prior convictions were valid
for the purposes of enhancement. The district court sentenced
Gilliam to probation for a period of 36 months. The terms
of the probation included a 60-day jail sentence, a fine, and
other restrictions.
1
See Yale v. City of Independence, 846 S.W.2d 193 (Mo. 1993).
2
Id.
3
Mo. Rev. Stat. § 557.011 (West Cum. Supp. 2016).
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Gilliam filed a timely appeal, which we moved to our docket
in order to resolve the enhancement issue, which is an issue of
first impression.4
III. ASSIGNMENTS OF ERROR
Gilliam assigns that the district court erred in (1) overruling
his motion to suppress and (2) concluding that his DWI convic-
tion from the State of Missouri was a valid prior conviction for
enhancement purposes.
IV. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press evidence based on a claimed violation of the Fourth
Amendment, we apply a two-part standard of review.5 Regard
ing historical facts, we review the trial court’s findings for
clear error.6 But whether those facts trigger or violate Fourth
Amendment protections is a question of law that we review
independently of the trial court’s determination.7
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the determination made by the
court below.8
[3] 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.9
4
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).
5
State v. Modlin, 291 Neb. 660,867 N.W.2d 609
(2015).
6
Id.
7
Id.
8
State v. Taylor, 286 Neb. 966,840 N.W.2d 526
(2013).
9
Id.
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V. ANALYSIS
1. Seizure
Gilliam claims that the district court erred when it overruled
his motion to suppress the evidence obtained as a result of his
encounter with Wagner. He argues that Wagner’s activation
of his patrol unit’s overhead lights was a show of authority
that transformed the initial encounter into a seizure for Fourth
Amendment purposes. We disagree.
[4,5] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution guarantee against
unreasonable searches and seizures.10 Evidence obtained as the
fruit of an illegal search or seizure is inadmissible in a state
prosecution and must be excluded.11
[6] To determine whether an encounter between an offi-
cer and a citizen reaches the level of a seizure under the
Fourth Amendment to the U.S. Constitution, an appellate
court employs the analysis set forth in State v. Van Ackeren.12
Van Ackeren describes three levels, or tiers, of police-citizen
encounters.13
[7] The first tier does not implicate the Fourth Amendment.
A tier-one police-citizen encounter involves the volun-
tary cooperation of the citizen elicited through noncoercive
questioning and does not involve any restraint of liberty
of the citizen.14 Because tier-one encounters do not rise to
the level of a seizure, they are outside the realm of Fourth
Amendment protection.15
[8-10] However, second or third tier encounters require
constitutional analysis. A tier-two police-citizen encounter
10
State v. Modlin, supra note 5.
11
State v. Wells, 290 Neb. 186,859 N.W.2d 316
(2015).
12
State v. Van Ackeren, 242 Neb. 479,495 N.W.2d 630
(1993).
13
See State v. Wells, supra note 11.
14
Id.
15
See State v. Hedgcock, 277 Neb. 805,765 N.W.2d 469
(2009).
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constitutes an investigatory stop as defined by Terry v. Ohio.16
Such an encounter involves a brief, nonintrusive detention
during a frisk for weapons or preliminary questioning.17 A tier-
three police-citizen encounter constitutes an arrest.18 An arrest
involves a highly intrusive or lengthy search or detention.19
Tier-two and tier-three police-citizen encounters are seizures
sufficient to invoke the protections of the Fourth Amendment
to the U.S. Constitution.20
[11-13] A seizure in the Fourth Amendment context occurs
only if, in view of all the circumstances surrounding the
incident, a reasonable person would have believed that he or
she was not free to leave.21 In addition to situations where an
officer directly tells a suspect that he or she is not free to go,
circumstances indicative of a seizure may include the threaten-
ing presence of several officers, the display of a weapon by
an officer, some physical touching of the citizen’s person, or
the use of language or tone of voice indicating the compliance
with the officer’s request might be compelled.22 We have con-
cluded that a police officer’s merely questioning an individual
in a public place, such as asking for identification, is not a
seizure subject to Fourth Amendment protections, so long as
the questioning is carried on without interrupting or restraining
the person’s movement.23
16
Terry v. Ohio, 392 U.S. 1,88 S. Ct. 1868
,20 L. Ed. 2d 889
(1968). See
State v. Wells, supra note 11.
17
State v. Wells, supra note 11.
18
Id.
19
Id.
20
Id.
21
State v. Hedgcock, supra note 15.
22
Id.See United States v. Mendenhall,446 U.S. 544
,100 S. Ct. 1870
,64 L. Ed. 2d 497
(1980).
23
Id.See State v. Twohig,238 Neb. 92
,469 N.W.2d 344
(1991).
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The circumstances of the instant case reveal that Wagner
was merely questioning Gilliam in a public place. Wagner
contacted Gilliam while he was voluntarily parked in a public
place in the early morning hours. He approached Gilliam’s
vehicle alone and on foot. He knocked on the window and
asked to see Gilliam’s identification. There is no evidence that
Wagner displayed his weapon, used a forceful tone of voice,
touched Gilliam, or otherwise told Gilliam that he was not free
to leave.
Gilliam points to Wagner’s activation of his patrol unit’s
overhead lights as evidence that he was not free to leave. But
as the district court observed, there are a variety of reasons
that officers may activate their overhead lights. And as the
U.S. Court of Appeals for the Seventh Circuit observed in a
case with circumstances similar to this one, one reason offi-
cers activate their overhead lights before approaching a parked
vehicle is “to alert the car’s occupants that they [are] going
to approach the vehicle.”24 In that similar case, the Seventh
Circuit court concluded that where a vehicle was parked and
running at night, overhead lights alone were not sufficient to
create a seizure. It reasoned that “[w]ithout identifying them-
selves appropriately to the car’s occupants, the officers would
have put themselves at risk in approaching a parked car late
at night.”25
Under the circumstances of the instant case, the overhead
lights, standing alone, would not have caused a reasonable
person to believe that he was not free to leave. A reasonable
person, parked on the side of the street at night or in the early
morning hours, would understand that there are a variety of
reasons an officer may activate his overhead lights before
approaching him, including officer safety. Because none of
the other circumstances would have made a reasonable per-
son believe that he was not free to leave, we conclude that
24
U.S. v. Clements, 522 F.3d 790, 794 (7th Cir. 2008).
25
Id. at 794-95.
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Gilliam’s encounter with Wagner began as a tier-one encounter.
Thus, he was not seized when Wagner approached him, and the
Fourth Amendment was not implicated.
Gilliam does not challenge the district court’s determination
that Wagner obtained reasonable suspicion to expand the initial
encounter into a DUI investigation when Gilliam opened his
window. Therefore, we conclude that the district court did not
err in denying Gilliam’s motion to suppress.
2. Enhancement
Gilliam claims that the district court erred in using his
Missouri DWI conviction to enhance his sentence. He argues
that the Missouri judgment does not constitute evidence of
a prior conviction for enhancement purposes, because the
Missouri Supreme Court has declared that a suspended imposi-
tion of sentence does not constitute a “conviction” in Missouri.26
He also argues that the State did not show that his Missouri
DWI conviction was final.
Neb. Rev. Stat. § 60-6,197.03 (Cum. Supp. 2012) delin-
eates the penalties for DUI convictions. Those penalties
include enhanced sentences for offenders who have had prior
convictions.
The term “prior conviction” is defined by statute.27 It pro-
vides that when a sentence is being imposed for a violation of
Nebraska’s general prohibition against DUI,28 prior conviction
means “[a]ny conviction under a law of another 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.29 It does not
define the word “conviction.”
26
See Yale v. City of Independence, supra note 1.
27
Neb. Rev. Stat. § 60-6,197.02 (Cum. Supp. 2014).
28
Neb. Rev. Stat. § 60-6,196 (Reissue 2010).
29
§ 60-6,197.02(1)(a)(i)(C).
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[14,15] Before we can review the district court’s finding that
the State proved Gilliam’s prior conviction in Missouri, we
must first determine what the word “conviction” means within
the phrase, “[a]ny conviction under a law of another state.”
Statutory language is to be given its plain and ordinary mean-
ing, and this court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and
unambiguous.30 It is not within the province of this court to
read a meaning into a statute that is not warranted by the leg-
islative language.31
We often turn to dictionaries to ascertain a word’s plain and
ordinary meaning.32 Black’s Law Dictionary defines “convic-
tion” as “[t]he act or process of judicially finding someone
guilty of a crime; the state of having been proved guilty . .
. .”33 Webster’s Third New International Dictionary defines
“conviction” as “the act of proving, finding, or adjudging
a person guilty of an offense or crime.”34 These definitions
square with our understanding of “conviction” in prior cases.
We have consistently stated that “[a] plea of guilty accepted
by the court is a conviction or the equivalent of a conviction
of the highest order. The effect of it is to authorize the imposi-
tion of the sentence prescribed by law on a verdict of guilty
30
State v. Taylor, supra note 8.
31
Id.
32
See, e.g., Stick v. City of Omaha, 289 Neb. 752,857 N.W.2d 561
(2015)
(citing Black’s Law Dictionary for plain meaning of “public place”);
Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, 287 Neb. 779,844 N.W.2d 755
(2014) (citing Webster’s Dictionary for plain meaning of
“discontinue”); Mathews v. Mathews, 267 Neb. 604,676 N.W.2d 42
(2004)
(citing several dictionaries for plain meaning of “indigent”); Payless Bldg.
Ctr. v. Wilmoth, 254 Neb. 998,581 N.W.2d 420
(1998) (citing Webster’s
Third New International Dictionary for plain meaning of “individual”).
33
Black’s Law Dictionary 408 (10th ed. 2014).
34
Webster’s Third New International Dictionary of the English Language,
Unabridged 499 (1993).
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of the crime charged.”35 We have also stated that “a plea of no
contest, when voluntarily entered and accepted by the court,
is a conviction, empowering the court to impose the sentence
authorized by statute.”36
[16] We apply the plain and ordinary meaning of the word
“conviction” to the statute before us. For the purposes of
§ 60-6,197.02, the word “conviction” means a finding of guilt
by a jury or a judge, or a judge’s acceptance of a plea of guilty
or no contest.
[17,18] We now review the district court’s finding that the
State had met its burden of proving Gilliam’s prior conviction.
In order to prove a prior conviction for purposes of sentence
enhancement, the State has the burden to prove the fact of
prior convictions by the greater weight of the evidence, and
the trial court determines the fact of prior convictions based
upon the greater weight of the evidence standard.37 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.38 On an appeal of a sentence enhance-
ment hearing, we view and construe the evidence most favor-
ably to the State.39
Regarding the process by which the prior conviction must
be proved, § 60-6,197.02 provides: “The prosecutor shall
present as evidence for purposes of sentence enhancement a
35
Stewart v. Ress, 164 Neb. 876, 881,83 N.W.2d 901, 904
(1957). See,
also, State v. Hall, 268 Neb. 91,679 N.W.2d 760
(2004); State v. Ondrak,
212 Neb. 840,326 N.W.2d 188
(1982); Taylor v. State,159 Neb. 210
,66 N.W.2d 514
(1954). Cf. State v. Hess,261 Neb. 368
,622 N.W.2d 891
(2001).
36
State v. McKain, 230 Neb. 817, 818,434 N.W.2d 10, 11
(1989).
37
See State v. Taylor, supra note 8. See, also, Flores v. Flores-Guerrero,
290 Neb. 248, 253,859 N.W.2d 578
, 583 (2015) (“preponderance of the
evidence” is equivalent of “‘“greater weight”’ of the evidence”).
38
See State v. Taylor, supra note 8.
39
Id.
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court-certified copy or an authenticated copy of a prior con-
viction in another state. The court-certified or authenticated
copy shall be prima facie evidence of such prior conviction.”40
That section also directs that once the prosecutor has presented
prima facie evidence, “[t]he convicted person shall be given
the opportunity to review the record of his or her prior convic-
tions, 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.”41
We conclude that the district court’s finding was supported
by relevant evidence. The State introduced the Missouri judg-
ment, which indicates that Gilliam pled “guilty as charged”
to DWI in Missouri and that the judge accepted his plea.
Therefore, the Missouri judgment constitutes a certified copy
of a prior conviction in another state and is prima facie evi-
dence of the prior conviction. And Gilliam does not claim that
the Missouri conviction would not have been a violation of
Nebraska’s DUI laws. Thus, the State met its burden, and the
district court did not err in enhancing Gilliam’s sentence.
Gilliam’s two arguments that we should reach a contrary
conclusion are meritless. First, Gilliam argues that we must
analyze Missouri law to determine whether the Missouri judg-
ment constitutes a “conviction under a law of another state”
under § 60-6,197.02. We disagree. The meaning of the phrase
is plain—it requires a finding of guilt or an acceptance of a
guilty or no contest plea under a law of another state. That is
satisfied here. The plain terms of the statute do not require an
analysis of Missouri law.
And even if we were to examine Missouri law, we would
reach the same conclusion. In a Missouri Supreme Court
decision,42 the court addressed the term “conviction” as used in
40
§ 60-6,197.02(2).
41
§ 60-6,197.02(3).
42
Yale v. City of Independence, supra note 1.
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a municipality’s employee manual. It was in that context that
the court concluded that a suspended imposition of sentence
was not a conviction. But the court observed that the Missouri
Legislature had provided otherwise in specific instances. And,
particularly pertinent here, the court recognized that a specific
Missouri statute43 treated a plea of guilty, finding of guilt, or
disposition of suspended imposition of sentence as a “convic-
tion, or ‘final disposition,’ in alcohol or drug related driv-
ing offenses.”44
A change in Missouri’s statutory framework for enhance-
ment of intoxication-related traffic offenses, enacted after
the date of Gilliam’s conviction, does not change the result.
Although Missouri no longer looks to a “conviction” in
intoxication-related traffic offenses for purposes of enhance-
ment, it still treats a suspended imposition of sentence as an
event qualifying as a necessary predicate for enhancement.
The Missouri Legislature treated a suspended imposition of
sentence in an intoxication-related traffic offense as a “con-
viction” sufficient to enhance an offender’s sentence for a
subsequent intoxication-related traffic offense until 2008. In
2008, it changed the terminology of its enhancement statute.45
It removed the word “conviction” and substituted definitions
employing the phrases “has pleaded guilty to or has been
found guilty of” and “intoxication-related traffic offenses.”46
But despite the changes in nomenclature, the current Missouri
statute states that a “suspended imposition of sentence” is
to be treated as a “prior plea of guilty or finding of guilt.”47
Thus, the effect remains the same—Missouri considers a
suspended imposition of sentence for an intoxication-related
43
Mo. Rev. Stat. § 577.051.1 (1986).
44
Yale v. City of Independence, supra note 1,846 S.W.2d at 195
.
45
See H.B. 1715, 94th Gen. Assemb., 2d Reg. Sess. (Mo. 2008).
46
Mo. Rev. Stat. § 577.023 (West 2011).
47
§ 577.023(16).
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traffic offense sufficient to enhance a sentence for a sub-
sequent intoxication-related traffic offense. And, ultimately,
the question is not whether Missouri would characterize the
2004 event as a “conviction” under its current enhancement
statute, but whether it qualifies as a prior conviction under
the Nebraska statute. We have already explained why it does,
and the change in Missouri’s terminology does not affect
our conclusion.
Second, Gilliam claims that the State was required to estab-
lish that the Missouri judgment was a final conviction. In this
argument, he does not rely upon Missouri law, which, as we
have noted, does not support his assertion. Rather, he recites
that in Nebraska, a judgment is not final until a convicted
person is sentenced.48 And he argues that because the Missouri
judgment indicates that his sentence was suspended, the State
did not sufficiently prove a final conviction.
Gilliam relies on State v. Estes.49 There, we cited Nelson
v. State50 for the following rule: “To constitute a basis for
enhancement of punishment on a charge of a second or sub-
sequent offense, the prior conviction relied upon for enhance-
ment must be a final conviction.”51 In Nelson, we said:
“[W]here the evidence of one of the former violations charged
shows that proceedings in error are pending and undisposed
of which might result in a reversal of such judgment, such
evidence is insufficient and incompetent to establish a for-
mer conviction.”52
The rule pronounced in Nelson and repeated in Estes
applies when the evidence presented by the State shows that
a prior conviction is pending on appeal. The record in the
48
See State v. Kaba, 210 Neb. 503,315 N.W.2d 456
(1982).
49
State v. Estes, 238 Neb. 692,472 N.W.2d 214
(1991).
50
Nelson v. State, 116 Neb. 219,216 N.W.2d 556
(1927).
51
State v. Estes, supra note 49, 238 Neb. at 695,472 N.W.2d at 216
.
52
Nelson v. State, supra note 50, 116 Neb. at 221,216 N.W.2d at 557
.
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instant case does not indicate that an appeal is pending, and
Gilliam does not contend that he has appealed the Missouri
conviction. Thus, Nelson and Estes are inapplicable. The
terms of § 60-6,197.02 do not require the prosecution to
prove that an appeal is not pending or that the conviction is
otherwise final. We will not read into a statute requirements
that are not there.
VI. CONCLUSION
We conclude that the district court did not err by overruling
Gilliam’s motion to suppress. Further, we conclude that the
district court did not err in using Gilliam’s Missouri conviction
to enhance his sentence. Therefore, we affirm.
A ffirmed.
Stacy, J., not participating.
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