State v. Taylor , 310 Neb. 376 ( 2021 )


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    www.nebraska.gov/apps-courts-epub/
    12/17/2021 08:09 AM CST
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. TAYLOR
    Cite as 
    310 Neb. 376
    State of Nebraska, appellee, v.
    James E. Taylor, appellant.
    ___ N.W.2d ___
    Filed November 12, 2021.   No. S-21-096.
    1. Appeal and Error. It is a fundamental rule of appellate practice that an
    alleged error must be both specifically assigned and specifically argued
    in the brief of the party asserting the error to be considered by an appel-
    late court.
    2. ____. A generalized and vague assignment of error that does not advise
    an appellate court of the issue submitted for decision will not be
    considered.
    3. 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.
    4. Courts: Appeal and Error. Both the district court and a higher appel-
    late court generally review appeals from the county court for error
    appearing on the record.
    5. Judgments: Appeal and Error. 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, not unreasonable.
    6. Courts: Appeal and Error. An appellate court independently reviews
    questions of law in appeals from the county court.
    7. Criminal Law: Courts: Appeal and Error. When deciding appeals
    from criminal convictions in county court, an appellate court applies the
    same standards of review that it applies to decide appeals from criminal
    convictions in district court.
    8. Trial: Convictions: Evidence: Appeal and Error. An appellate court
    will sustain a conviction in a bench trial of a criminal case if the properly
    admitted evidence, viewed and construed most favorably to the State, is
    sufficient to support that conviction. In making this determination, an
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    STATE v. TAYLOR
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    310 Neb. 376
    appellate court does not resolve conflicts in the evidence, pass on the
    credibility of witnesses, evaluate explanations, or reweigh the evidence
    presented, which are within a fact finder’s province for disposition.
    Instead, the relevant question 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.
    9.   Ordinances: Appeal and Error. Interpretation of a municipal ordinance
    is a question of law, on which an appellate court reaches an independent
    conclusion irrespective of the determination made by the court below.
    10.   Statutes: Appeal and Error. The interpretation of statutes and regu-
    lations presents a question of law which an appellate court reviews
    de novo.
    11.   Statutes: Intent. When interpreting a statute, the starting point and
    focus of the inquiry is the meaning of the statutory language, understood
    in context.
    12.   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.
    13.   Statutes. It is not within the province of the courts to read meaning
    into a statute that is not there or to read anything direct and plain out of
    a statute.
    14.   Drunk Driving: Words and Phrases. As used in 
    Neb. Rev. Stat. § 60-6
    ,196 (Reissue 2010), the phrase “under the influence of alcoholic
    liquor or of any drug” requires the ingestion of alcohol or drugs in an
    amount sufficient to impair to any appreciable degree the driver’s ability
    to operate a motor vehicle in a prudent and cautious manner.
    Appeal from the District Court for Lancaster County, Susan
    I. Strong, Judge, on appeal thereto from the County Court
    for Lancaster County, Joseph E. Dalton, Judge. Judgment of
    District Court affirmed.
    Joe Nigro, Lancaster County Public Defender, and James
    Sieben for appellant.
    Robert E. Caples, Assistant Lincoln City Prosecutor, for
    appellee.
    Heavican, C.J., Cassel, Stacy, Funke, Papik, and
    Freudenberg, JJ., and Thompson, District Judge.
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    Nebraska Supreme Court Advance Sheets
    310 Nebraska Reports
    STATE v. TAYLOR
    Cite as 
    310 Neb. 376
    Papik, J.
    The State prosecuted James E. Taylor for violating a munic-
    ipal ordinance prohibiting driving under the influence. The
    State’s theory was that Taylor was driving while impaired
    by his prescription medication. Taylor was convicted in the
    county court and unsuccessfully appealed his conviction to
    the district court. He now appeals again, arguing that the State
    could not establish a driving under the influence conviction on
    the theory he was under the influence of prescription medica-
    tions and that the evidence was otherwise insufficient to sup-
    port his conviction. We disagree with Taylor’s arguments and
    therefore affirm.
    BACKGROUND
    The State charged Taylor with several offenses arising out
    of a traffic stop in Lincoln, Nebraska, in July 2019. The sole
    charge relevant to this appeal was that Taylor violated Lincoln
    Mun. Code § 10.16.030 (2017), a certified copy of which is in
    our record. That ordinance makes it “unlawful for any person
    to operate or be in the actual physical control of any motor
    vehicle while under the influence of alcoholic liquor, or of
    any drug.”
    At trial, the State called the police officers who completed
    the traffic stop, Matthew Stegman and Bryan Gruber. Stegman
    testified that because he was training Gruber, they were riding
    together that night. Stegman and Gruber testified that just after
    11 p.m., they saw a vehicle driving on a Lincoln street with its
    headlights off. While following the vehicle, the officers saw it
    cross the centerline and strike a curb. Gruber initiated a traffic
    stop. Taylor was the vehicle’s only occupant.
    Stegman testified about his interaction with Taylor dur-
    ing the traffic stop. Stegman asked Taylor why his headlights
    were not on and why he struck the curb. Taylor responded
    that he thought his headlights were on and that he fell asleep
    while driving. Stegman also testified that when he asked
    Taylor whether he had taken any medications or drugs recently,
    Taylor responded that he had taken some prescription pills.
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    Stegman observed that Taylor had “somewhat slurred speech”
    and appeared “overtired” and not “completely aware of what
    [was] going on.”
    Stegman testified that he then asked Taylor to get out of
    the vehicle so that he could administer field sobriety tests.
    Taylor’s performance on several field sobriety tests indicated
    that he was impaired. Gruber testified that while Stegman was
    administering the field sobriety tests, Taylor was “basically
    falling asleep periodically during the test.” The officers did not
    smell any alcohol on Taylor’s breath, and Taylor denied using
    alcohol. A preliminary breath test did not detect any alcohol on
    Taylor’s breath.
    As a result of Taylor’s driving and his performance on the
    field sobriety tests, the officers transported him to another
    location so that he could be evaluated by a drug recognition
    expert (DRE). Prior to the DRE evaluation, Taylor submitted
    to a formal breath test on a DataMaster machine, which also
    showed no indication of alcohol. After Stegman read Taylor his
    Miranda rights, Taylor also agreed to be interviewed. During
    this interview, Taylor again acknowledged recently taking med-
    ications. He informed the officers he was taking the medica-
    tions for mental and behavioral health reasons and provided
    the names of those medications. The medications included
    Seroquel and Effexor. According to Stegman, Taylor stated that
    when taking the medications, he did get “sleepy,” but that he
    felt he could still drive safely.
    Sgt. Max Hubka, the certified DRE who evaluated Taylor,
    also testified. He described the multistep DRE protocol, which
    included performance tests of Taylor, the formation of an
    opinion by Hubka, and toxicology. Hubka observed that dur-
    ing the evaluation, Taylor appeared tired and stated that he
    was tired. Hubka also observed that Taylor’s speech was
    slow, “with a slight slur to it.” Hubka testified that Taylor told
    him what prescription medications he had taken that evening
    and that they included Seroquel and Effexor. Hubka testified
    that based on his training, he knew those two medications to
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    STATE v. TAYLOR
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    be central nervous system (CNS) depressants. Hubka testi-
    fied over Taylor’s objection that the term “CNS depressants”
    refers to a category of drugs that “slow[] the processes of the
    body.” According to Hubka, CNS depressants would include
    antidepressants and antipsychotics and Seroquel is an anti­
    psychotic medication.
    Hubka also testified over Taylor’s objection that in his opin-
    ion, Taylor was under the influence of CNS depressants. Hubka
    based this opinion on Taylor’s performance on field sobriety
    tests, inability to stay awake, slightly slurred speech, and poor
    balance, as well as Taylor’s agreement with Hubka’s opinion
    that Taylor was not safe to drive and his admission that he had
    ingested multiple types of CNS depressants before driving.
    A forensic scientist in the Nebraska State Patrol Crime
    Laboratory testified that she analyzed a urine sample provided
    by Taylor. She explained that her analysis was governed by
    177 Neb. Admin. Code, ch. 7 (2007), a certified copy of which
    was received in evidence. Over Taylor’s objection, she testi-
    fied that in Taylor’s urine sample, she detected venlafaxine, the
    generic term for Effexor, which she characterized as a “mild
    CNS depressant.” She also testified that she detected que­
    tiapine, the generic term for Seroquel, and explained that que-
    tiapine is an antipsychotic medication with “CNS depressant
    side effects.”
    In his defense, Taylor called a friend he had visited imme-
    diately before the traffic stop. She testified that Taylor had
    fallen asleep at her residence, but she denied seeing him use
    any drugs or medications and did not believe he was “high” or
    under the influence.
    Taylor also testified in his own defense. He testified that for
    at least 5 years prior to the traffic stop, he had prescriptions
    for and had been taking Effexor and Seroquel. Taylor could not
    recall ever being told by a doctor that the medications should
    not be used prior to driving and testified that the labels on the
    medication bottles directed only that those taking the medica-
    tions should use caution while driving.
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    STATE v. TAYLOR
    Cite as 
    310 Neb. 376
    The county court found Taylor guilty of driving under the
    influence of drugs and sentenced him accordingly. Taylor
    appealed that conviction to the district court. Taylor challenged
    several of the county court’s evidentiary rulings and argued
    that the county court had erred in finding him guilty with-
    out sufficient evidence. The district court affirmed Taylor’s
    conviction.
    Taylor then appealed the district court’s decision, and we
    moved the case to our docket.
    ASSIGNMENT OF ERROR
    Taylor’s appellate brief sets forth two numbered assignments
    of error. The second assigned error is that the district court
    erred by finding that there was sufficient evidence to support
    the conviction of driving under the influence. We will analyze
    Taylor’s challenge to the sufficiency of the evidence below.
    [1,2] Taylor’s first assigned error is more general. He asserts
    that “[t]he district court erred by affirming [Taylor’s] convic-
    tion in county court of driving under the influence as a matter
    of law.” It is a fundamental rule of appellate practice that an
    alleged error must be both specifically assigned and specifi-
    cally argued in the brief of the party asserting the error to be
    considered by an appellate court. State v. Iddings, 
    304 Neb. 759
    , 
    936 N.W.2d 747
     (2020). A generalized and vague assign-
    ment of error that does not advise an appellate court of the
    issue submitted for decision will not be considered. 
    Id.
     Taylor’s
    assertion that the district court erred “as a matter of law” with-
    out any elaboration as to the nature of that error is the type of
    generalized assignment of error that we do not consider.
    STANDARD OF REVIEW
    [3-7] 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. State v. Valentino, 
    305 Neb. 96
    , 
    939 N.W.2d 345
     (2020). Both the district court and a higher appel-
    late court generally review appeals from the county court for
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    STATE v. TAYLOR
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    error appearing on the record. 
    Id.
     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. 
    Id.
     But we independently review questions
    of law in appeals from the county court. 
    Id.
     When deciding
    appeals from criminal convictions in county court, we apply
    the same standards of review that we apply to decide appeals
    from criminal convictions in district court. 
    Id.
    [8] An appellate court will sustain a conviction in a bench
    trial of a criminal case if the properly admitted evidence,
    viewed and construed most favorably to the State, is sufficient
    to support that conviction. State v. Montoya, 
    304 Neb. 96
    ,
    
    933 N.W.2d 558
     (2019). In making this determination, we do
    not resolve conflicts in the evidence, pass on the credibility
    of witnesses, evaluate explanations, or reweigh the evidence
    presented, which are within a fact finder’s province for disposi-
    tion. 
    Id.
     Instead, the relevant question 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 reasonable doubt. 
    Id.
    [9,10] Interpretation of a municipal ordinance is a question
    of law, on which we reach an independent conclusion irrespec-
    tive of the determination made by the court below. Wilkison v.
    City of Arapahoe, 
    302 Neb. 968
    , 
    926 N.W.2d 441
     (2019). The
    interpretation of statutes and regulations presents a question of
    law which we review de novo. 
    Id.
    ANALYSIS
    Taylor makes two arguments to challenge the sufficiency of
    the evidence to support his conviction for violating the city of
    Lincoln (the City) driving under the influence ordinance. His
    first argument depends on his interpretation of the ordinance.
    Taylor contends that while the State’s theory at trial was that
    he was under the influence of his prescription medications,
    those medications do not qualify as “any drug” under the
    ordinance, and therefore, there was insufficient evidence of
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    STATE v. TAYLOR
    Cite as 
    310 Neb. 376
    an essential element of the crime. Alternatively, he argues that
    even if his prescription medications qualify as “any drug,”
    there was insufficient evidence that he was under the influence
    of those prescription medications. We address each of these
    arguments below.
    Taylor’s Prescription Medications Qualify
    as “Any Drug” Under Ordinance.
    As we have noted, the municipal ordinance at issue crimi-
    nalizes the operation or actual physical control of a motor
    vehicle while under the influence of “alcoholic liquor, or of
    any drug.” This language mirrors a state statute, 
    Neb. Rev. Stat. § 60-6
    ,196(1)(a) (Reissue 2010). Another statute autho-
    rizes cities and villages to enact ordinances in conformance
    with § 60-6,196. See 
    Neb. Rev. Stat. § 60-6
    ,197.07 (Reissue
    2010).
    While the City ordinance refers to driving under the influ-
    ence of “any drug,” Taylor argues that a person can be con-
    victed of violating the ordinance only if the State proves that he
    or she was under the influence of one of seven drugs listed in a
    definition of “drug” contained within a regulation promulgated
    by the Nebraska Department of Health and Human Services
    (DHHS). Under that regulation, “Drug means any of the fol-
    lowing. Marijuana, cocaine, morphine, codeine, phencyclidine,
    amphetamine, or methamphetamine.” 177 Neb. Admin. Code,
    ch. 7, § 001.13. He contends that the prescription medications
    he admitted to taking on the night at issue are not among the
    substances listed in the regulation and that therefore, the evi-
    dence was insufficient to support his conviction.
    Taylor’s understanding of the ordinance rests on a theory
    of delegation. He contends that the Legislature authorized
    DHHS to promulgate rules governing the driving under the
    influence statutes and ordinances and that DHHS has, in an
    exercise of that authority, chosen to limit the definition of
    “drug,” as it appears in those statutes and ordinances, to the
    seven substances listed in the above-quoted regulation. Taylor
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    STATE v. TAYLOR
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    claims his theory of delegation is supported by 
    Neb. Rev. Stat. § 60-6
    ,201 (Reissue 2010). That statute sets forth certain
    requirements for chemical tests of blood, breath, and urine,
    and it directs that if tests are made in conformity with those
    requirements, the results “shall be competent evidence” in a
    prosecution for violating a driving under the influence statute
    or ordinance. See § 60-6,201(1). Among those requirements is
    a provision that “[t]o be considered valid,” such tests “shall be
    performed according to methods approved by [DHHS].” See
    § 60-6,201(3).
    [11-13] Taylor’s argument requires that we interpret the
    City’s driving under the influence ordinance as well as the
    driving under the influence statutes mentioned above. We apply
    the same principles to interpret ordinances that we do to inter-
    pret statutes. See Walsh v. City of Omaha Police & Fire Ret.
    Sys., 
    277 Neb. 554
    , 
    763 N.W.2d 411
     (2009). When interpret-
    ing a statute, the starting point and focus of the inquiry is the
    meaning of the statutory language, understood in context. In
    re Guardianship of Eliza W., 
    304 Neb. 995
    , 
    938 N.W.2d 307
    (2020). Our analysis begins with the text, because statutory
    language is to be given its plain and ordinary meaning, and
    an appellate court will not resort to interpretation to ascertain
    the meaning of statutory words which are plain, direct, and
    unambiguous. See 
    id.
     Neither is it within the province of the
    courts to read meaning into a statute that is not there or to read
    anything direct and plain out of a statute. Parks v. Hy-Vee, 
    307 Neb. 927
    , 
    951 N.W.2d 504
     (2020). Applying those rules here,
    we are not persuaded by Taylor’s argument.
    Taylor has not pointed to any statutory language provid-
    ing DHHS with authorization to define the phrase “any drug”
    as it appears in § 60-6,196(1)(a) or in municipal ordinances
    authorized by § 60-6,197.07. Neither has he identified any
    language in either § 60-6,196(1)(a) or the City ordinance
    incorporating the DHHS regulation definition of “drug.” The
    sole statute upon which Taylor relies for his delegation argu-
    ment, § 60-6,201, does give DHHS a role to play in driving
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    under the influence prosecutions, but that role is limited to
    approving methods and techniques for valid chemical tests.
    See § 60-6,201(3). And, consistent with that limited role, the
    DHHS definition of “drug” upon which Taylor relies appears
    in a regulation setting forth methods and techniques for detect-
    ing drug content in urine among those suspected of driving
    under the influence. See 177 Neb. Admin. Code, ch. 7. In sum,
    the interpretation Taylor advances would require us to read
    meaning into either the driving under the influence statutes
    or the City ordinance. That is not how we interpret statutes or
    municipal ordinances. See, Parks, 
    supra;
     Walsh, 
    supra.
    While we find no support for Taylor’s interpretation of the
    phrase “any drug” in the City ordinance, the question remains
    whether, under that language, the State could establish a con-
    viction under the ordinance on a theory that Taylor was under
    the influence of his prescription medications, Effexor and
    Seroquel. We find that it could.
    The parties agree that the phrase “any drug” is not defined
    by the municipal ordinance. Accordingly, we are obligated to
    interpret the phrase according to its plain and ordinary ­meaning.
    See Robert M. on behalf of Bella O. v. Danielle O., 
    303 Neb. 268
    , 
    928 N.W.2d 407
     (2019) (holding that undefined statutory
    terms must be given their plain and ordinary meaning).
    The plain and ordinary meaning of the term “drug” would
    encompass Taylor’s prescription medications. In everyday
    English, it is common to refer to any prescription medication
    as a prescription “drug.” Taylor’s medications are no excep-
    tion. See, e.g., In re: Seroquel Products Liability Litigation,
    
    542 F. Supp. 2d 1366
    , 1367 (J.P.M.L. 2008) (referring to “the
    prescription drug Seroquel”); Jackson v. Brotherhood’s Relief
    & Comp. Fund, 
    273 Neb. 1013
    , 1015, 
    734 N.W.2d 739
    , 743
    (2007) (referring to “a prescription drug called Effexor”). See,
    also, brief for appellant at 21 (“Effexor and its generic counter-
    part, [v]enlafaxine, are commonly prescribed drugs”).
    To be sure, words like “prescription” or “illegal” can modify
    the term “drug” and thereby refer to different subcategories
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    of substances, each of which bears the label “drug.” The
    ordinance before us, however, does not limit its coverage to
    illegal or some other subcategory of drugs. To the contrary, it
    makes it unlawful to drive under the influence of “any drug.”
    Lincoln Mun. Code § 10.16.030 (emphasis supplied). As we
    have previously recognized, the word “any,” read naturally, is
    expansive and refers to all that fall within a particular category
    “of whatever kind.” See Rouse v. State, 
    301 Neb. 1037
    , 1044,
    
    921 N.W.2d 355
    , 361 (2019), quoting Ali v. Federal Bureau
    of Prisons, 
    552 U.S. 214
    , 
    128 S. Ct. 831
    , 
    169 L. Ed. 2d 680
    (2008) (internal quotation marks omitted). On this basis, we
    interpreted the statutory phrase “‘any law enforcement offi-
    cer’” to cover “all law enforcement officers.” Rouse, 
    301 Neb. at 1043
    , 921 N.W.2d at 361. In much the same way, we
    interpret the phrase “any drug” in the City ordinance to refer
    to all drugs, “of whatever kind,” including Taylor’s prescrip-
    tion medications.
    Record Contains Sufficient Evidence
    That Taylor Was Under Influence
    of His Prescription Medications.
    [14] Taylor next claims that even if his prescription medica-
    tions qualify as “any drug,” there was insufficient evidence in
    the record that he was under the influence of those medications
    for purposes of the ordinance. We have said that as used in
    § 60-6,196, the phrase “under the influence of alcoholic liquor
    or of any drug” requires the ingestion of alcohol or drugs
    in an amount sufficient to impair to any appreciable degree
    the driver’s ability to operate a motor vehicle in a prudent
    and cautious manner. See State v. Daly, 
    278 Neb. 903
    , 
    775 N.W.2d 47
     (2009). We see no reason not to apply the same
    standard to determine whether there was evidence that Taylor
    was “under the influence of . . . any drug” for purposes of the
    City ordinance.
    The record unquestionably contains some evidence to sup-
    port the State’s position that Taylor’s ability to drive safely
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    was impaired as a result of his prescription medications. As
    recounted above, there was evidence that Taylor was driving
    at night with his headlights off, that he crossed the centerline
    of the road, that he struck a curb, that he admitted he had
    fallen asleep while driving and was very tired, that he showed
    impairment on field sobriety tests despite having no alcohol in
    his system, that he admitted to taking his prescription medi-
    cations earlier that night, and that a urinalysis confirmed the
    presence of those prescription medications in his system. In
    addition to all this, Hubka, a certified DRE, testified to his
    opinion that Taylor was under the influence of his prescription
    medications.
    In the face of all this evidence, Taylor maintains that there
    was insufficient evidence that he was under the influence of his
    prescription medications. He argues that some of the evidence
    summarized above was inadmissible. He points to evidence
    that he was tired on the night of the traffic stop and claims that
    was the reason for his poor driving. Finally, he makes a public
    policy argument that a person should not be convicted of driv-
    ing under the influence if he or she is shown only to be under
    the influence of medications taken as prescribed.
    Each of Taylor’s arguments is unavailing. Taylor did not
    assign error to the district court’s resolution of his claim that
    the county court received inadmissible evidence, so that issue
    is not before us. See State v. Iddings, 
    304 Neb. 759
    , 
    936 N.W.2d 747
     (2020). His claim that he was driving poorly only
    because he was tired invites us to evaluate explanations and
    reweigh evidence, neither of which are properly a part of an
    appellate review of sufficiency of the evidence. See State v.
    Montoya, 
    304 Neb. 96
    , 
    933 N.W.2d 558
     (2019). Furthermore,
    given the evidence in the record that Taylor admitted that his
    prescription medications made him “sleepy,” it is not clear
    that evidence that Taylor was tired is even helpful to his argu-
    ment that he was not impaired by his prescription medica-
    tions. Finally, Taylor’s general public policy argument is not
    relevant to the sufficiency of the evidence and, indeed, is
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    not even properly directed to this court. See Rogers v. Jack’s
    Supper Club, 
    304 Neb. 605
    , 614, 
    935 N.W.2d 754
    , 762 (2019)
    (“we are not tasked with selecting what we believe is the best
    policy. It is the function of the Legislature, through the enact-
    ment of statutes, to declare what is the law and public policy
    of this state”).
    Viewing all of the evidence summarized above in the light
    most favorable to the State, we conclude that a rational trier of
    fact could have found beyond a reasonable doubt that Taylor’s
    ingestion of his prescription medication had impaired to an
    appreciable degree his ability to operate his vehicle in a pru-
    dent and cautious manner. We therefore reject Taylor’s argu-
    ment that the evidence was insufficient to support his driving
    under the influence conviction.
    CONCLUSION
    We find the district court did not err in affirming Taylor’s
    driving under the influence conviction. We therefore affirm.
    Affirmed.
    Miller-Lerman, J., not participating.