State v. Grutell , 305 Neb. 843 ( 2020 )


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    www.nebraska.gov/apps-courts-epub/
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    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    STATE v. GRUTELL
    Cite as 
    305 Neb. 843
    State of Nebraska, appellee, v.
    Louis R. Grutell, appellant.
    ___ N.W.2d ___
    Filed May 22, 2020.     No. S-18-352.
    1. Appeal and Error. An appellate court may find plain error on appeal
    when an error unasserted or uncomplained of at trial, but plainly evident
    from the record, prejudicially affects a litigant’s substantial right and,
    if uncorrected, would result in damage to the integrity, reputation, and
    fairness of the judicial process.
    2. Statutes. Statutory interpretation presents a question of law.
    3. Criminal Law: Statutes. To determine the elements of a crime, courts
    look to the text of the enacting statute.
    4. Drunk Driving: Proof. Under 
    Neb. Rev. Stat. § 60-6
    ,196 (Reissue
    2010), a driving under the influence violation is a single offense that can
    be proved in more than one way.
    5. Drunk Driving: Evidence: Proof. To prove a violation of 
    Neb. Rev. Stat. § 60-6
    ,196 (Reissue 2010), the essential elements the State must
    prove beyond a reasonable doubt are (1) that the defendant was operat-
    ing or was in actual physical control of a motor vehicle and (2) that at
    the time the defendant did so, he or she was either (a) under the influ-
    ence of alcoholic liquor or of any drug, or (b) had a concentration of .08
    of 1 gram or more by weight of alcohol per 100 milliliters of his or her
    blood, or (c) had a concentration of .08 of 1 gram or more by weight of
    alcohol per 210 liters of his or her breath.
    6. Drunk Driving: Proof. When the State has charged an aggravated
    offense of driving under the influence, alleging as part of the offense
    that the defendant also had a breath alcohol concentration of .15 or
    more, that allegation is considered an essential element the State must
    prove beyond a reasonable doubt.
    7. Drunk Driving. The plain language of 
    Neb. Rev. Stat. § 60-6
    ,108(1)
    (Reissue 2010) shows the driving under the influence statutes apply not
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    just on Nebraska’s highways as that term is defined, but everywhere in
    Nebraska except private property not open to public access. Stated dif-
    ferently, the only place in Nebraska where the driving under the influ-
    ence statutes do not apply to the operation or control of a motor vehicle
    is on private property which is not open to public access.
    8.   Indictments and Informations: Complaints. In Nebraska, a criminal
    complaint or information does not need to affirmatively negate any
    statutory exceptions which are not descriptive of the offense.
    9.   Indictments and Informations: Statutes. It is well-established that an
    information is sufficient if it alleges the crime in the language of the
    enacting statute.
    10.   Drunk Driving. The exception in 
    Neb. Rev. Stat. § 60-6
    ,108(1) (Reissue
    2010) for private property not open to public access is not a material
    element of the offense of driving under the influence. Instead, the excep-
    tion in § 60-6,108(1) creates an affirmative defense to the crime of driv-
    ing under the influence.
    11.   Criminal Law: Trial: Evidence: Proof. In the absence of a statute
    placing the burden of proving an affirmative defense on the defendant
    in a criminal case, the nature of an affirmative defense is such that
    the defendant has the initial burden of going forward with evidence of
    the defense, and once the defendant has produced sufficient evidence
    to raise the defense, the issue becomes one which the State must
    disprove.
    12.   ____: ____: ____: ____. In a criminal case, the evidence necessary to
    raise an affirmative defense may be adduced either by the defendant’s
    witnesses or in the State’s case in chief without the necessity of the
    defendant’s presenting evidence. A defendant need only adduce a slight
    amount of evidence to satisfy this initial burden of raising an affirma-
    tive defense.
    Petition for further review from the Court of Appeals,
    Moore, Chief Judge, and Riedmann and Bishop, Judges, on
    appeal thereto from the District Court for Stanton County,
    Mark A. Johnson, Judge. Judgment of Court of Appeals
    affirmed.
    Nathan S. Lab and James K. McGough, of McGough Law,
    P.C., L.L.O., for appellant.
    Douglas J. Peterson, Attorney General, Nathan A. Liss, and,
    on brief, Joe Meyer, for appellee.
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    STATE v. GRUTELL
    Cite as 
    305 Neb. 843
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Papik,
    and Freudenberg, JJ.
    Stacy, J.
    Following a jury trial in district court, Louis R. Grutell was
    convicted and sentenced for driving under the influence of
    alcohol (DUI), fourth offense, with a concentration of more
    than .15 of 1 gram of alcohol per 210 liters of breath. 1 He
    appealed his conviction, assigning plain error to the district
    court’s failure to address the provisions of 
    Neb. Rev. Stat. § 60-6
    ,108(1) (Reissue 2010). Section 60-6,108(1) provides, in
    relevant part, that Nebraska’s DUI statutes “shall apply upon
    highways and anywhere throughout the state except private
    property which is not open to public access.” Grutell had not
    requested any rulings or instructions based on § 60-6,108(1),
    but on direct appeal, he argued it was plain error for the district
    court not to address the statute.
    In a memorandum opinion, the Nebraska Court of Appeals
    found no plain error and affirmed. 2 We granted Grutell’s
    petition for further review. For the reasons set out below,
    we affirm.
    BACKGROUND
    In May 2017, the State filed an information in the district
    court for Stanton County charging Grutell with DUI, fourth
    offense, with a concentration of more than .15 of 1 gram of
    alcohol per 2l0 liters of breath, a Class IIA felony. 3 The infor-
    mation did not reference § 60-6,108 and did not affirmatively
    allege that Grutell was operating a motor vehicle on a high-
    way or on private property open to public access. Grutell pled
    not guilty, and a jury trial was held.
    1
    See 
    Neb. Rev. Stat. §§ 60-6
    ,196 (Reissue 2010) and 60-6,197.02 and
    60-6,197.03(8) (Cum. Supp. 2018).
    2
    State v. Grutell, No. A-18-352, 
    2019 WL 3425909
     (Neb. App. July 30,
    2019) (selected for posting to court website).
    3
    See §§ 60-6,196, 60-6,197.02(1)(a)(i)(A), and 60-6,197.03(8).
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    STATE v. GRUTELL
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    TRIAL
    Opening Statements
    During opening statements, Grutell’s counsel suggested the
    evidence would show that Grutell did not consume alcohol
    until after his vehicle got stuck in a roadside ditch. Counsel
    remarked this would present a “problem” for the State because
    the State would not be able to show that Grutell “actually
    operated that motor vehicle on a public road or highway while
    under the influence.” The State objected to these remarks,
    arguing it did not have to show Grutell was operating a vehicle
    on a public road or highway. The district court initially over-
    ruled the State’s objection, but a few hours later it reversed its
    ruling. Outside the presence of the jury, the court explained
    that after conducting some research, it concluded the State was
    not required to prove the offense of DUI occurred on a public
    street or highway. The court went on to add that “if the defend­
    ant argues that this [DUI] was required to be on a street or
    highway, then upon objection, the Court will instruct the jury
    that it is not required.”
    Deputy’s Testimony
    The arresting deputy sheriff testified that at approximately
    8 p.m. on February 17, 2017, he was patrolling Highway 24
    when he observed a vehicle stranded in the ditch alongside a
    gravel road that intersected the highway. The vehicle’s head-
    lights were on, and the vehicle appeared to be rocking back
    and forth in the ditch. The deputy saw tire tracks on the trav-
    eled surface of the gravel road that led directly to the vehicle
    in the ditch.
    The vehicle was registered to Grutell, who was the only
    occupant. The deputy found Grutell in the driver’s seat of the
    vehicle with the engine running. When Grutell was asked to
    step out of the vehicle, he staggered and swayed as he walked.
    Grutell smelled strongly of alcohol, had slurred speech, and
    had glassy, bloodshot eyes. Grutell told the deputy he had
    come from a bar and restaurant in Norfolk, Nebraska, and was
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    on his way to visit his ex-wife at a different bar, where she
    worked as a bartender. The deputy asked Grutell whether he
    had consumed any alcohol that day, and Grutell said he “had
    a few at home” and then had “a couple more” at the bar in
    Norfolk. Grutell later told the officer that if he was charged
    with DUI, he would say he had not been driving the vehicle at
    all and was just “check[ing] on the vehicle in the ditch.”
    The deputy administered field sobriety tests. Grutell was
    unable to complete one of the tests and showed signs of
    impairment on all the others. Grutell was arrested for DUI and
    was transported to the Norfolk police station where a breath
    test was conducted. Grutell had a breath alcohol concentration
    of .176. On appeal, he does not challenge either the breath test-
    ing process or the test result.
    Motion for Directed Verdict
    At the close of the State’s case, Grutell moved for a directed
    verdict arguing the State had failed to prove he was in “actual
    physical control” of a motor vehicle while intoxicated. As best
    we can determine from the record, Grutell’s theory was that
    even if he was intoxicated while sitting behind the wheel of
    a running vehicle, the vehicle was stuck in the ditch at the
    time so he could not have exercised actual physical control
    over anything that would have caused the vehicle to move.
    The district court overruled the motion, reasoning that there
    was evidence the vehicle was rocking in the ditch when it was
    first observed by the deputy and that there was also evidence
    Grutell had operated the vehicle on the gravel roadway imme-
    diately before getting stuck in the ditch.
    Grutell’s Testimony and
    Closing Arguments
    Grutell testified in his own defense. He testified that he
    was driving to visit his ex-wife at the bar where she worked
    when he missed his turn. While attempting to make a two-
    point turn on the gravel road, his vehicle fell into the ditch
    and became stuck. Grutell testified he did not have a cell
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    STATE v. GRUTELL
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    phone with him and decided not to walk for help; instead, he
    remained inside the vehicle and began drinking a bottle of
    rum he had purchased earlier that afternoon. Grutell denied
    having consumed alcohol earlier in the day, and he denied
    having told the deputy any such thing. Grutell testified that by
    the time the deputy arrived on the scene a few hours later, he
    had consumed half the bottle of rum. He acknowledged that
    no bottle of rum was found during the inventory search of his
    vehicle, but testified that was because he had thrown it out of
    the vehicle. Grutell agreed that the deputy found him sitting
    behind the wheel of his vehicle with the engine running and
    the headlights on, but he said that he kept the headlights on so
    someone might see him and that he kept the engine running to
    stay warm while he waited.
    At the close of all the evidence, Grutell renewed his motion
    for directed verdict without further argument. The State resisted
    the motion, and the district court overruled it.
    In his closing argument, Grutell’s counsel asked the jury to
    return a verdict of not guilty if it believed Grutell’s testimony
    that he had not consumed any alcohol until after his vehicle
    became stuck in the ditch. Similar to the argument presented
    in support of the motion for directed verdict, defense counsel
    argued during closing:
    It’s true that you can be in the ditch, you can be there
    with a vehicle, and you can be charged with a DUI and
    be guilty. But it’s also true that you can be in the ditch,
    you can be under the influence of alcohol, and if you did
    it at the time when that car is not movable anymore, that
    is not a DUI.
    The State did not object to this argument.
    Jury Verdict, Enhancement,
    and Sentence
    After deliberating for more than an hour, the jury returned a
    unanimous verdict finding Grutell guilty of DUI with an alco-
    hol concentration greater than .15. A presentence investigation
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    STATE v. GRUTELL
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    was ordered, and the matter was set for an enhancement and
    sentencing hearing.
    At that hearing, the court received evidence of Grutell’s
    prior DUI convictions and found him guilty of DUI, fourth
    offense, with a breath alcohol concentration of more than .15.
    Grutell was sentenced to a term of imprisonment for a period
    of 18 to 36 months, and his operator’s license was revoked for
    a period of 15 years. He filed a timely appeal, represented by
    new counsel.
    COURT OF APPEALS
    One of Grutell’s assignments of error to the Court of Appeals
    focused on § 60-6,108(1). That statute provides in relevant part
    that Nebraska’s DUI statutes “shall apply upon highways and
    anywhere throughout the state except private property which is
    not open to public access.” 4 In describing the practical effect
    of § 60-6,108(1), we have said it means that “Nebraska’s DUI
    statutes do not apply to operation or control of a vehicle on
    private property that is not open to public access.” 5
    It is undisputed that while Grutell’s case was before the
    district court, he did not reference § 60-6,108(1), did not file
    a motion or submit a proposed jury instruction premised on
    § 60-6,108(1), and did not at any point contend the ditch where
    he was arrested was private property not open to public access.
    But on appeal, he argued the district court committed plain
    error in not addressing § 60-6,108(1).
    As relevant to the issue on further review, Grutell argued
    the trial court plainly erred by “fail[ing] to rule on the issue
    of § 60-6,108 and its application to the case at hand” 6 and
    by failing to dismiss the case “pursuant to §60-6,108” 7 in
    response to Grutell’s motions for directed verdict. Grutell also
    4
    § 60-6,108(1).
    5
    State v. Matit, 
    288 Neb. 163
    , 168, 
    846 N.W.2d 232
    , 237 (2014).
    6
    Brief for appellant at 12.
    7
    
    Id.
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    suggested that the reason his trial counsel did not expressly
    raise § 60-6,108(1) was because of the court’s “admonition” 8
    early in the trial that the State did not have to prove the DUI
    occurred on a public highway. Finally, Grutell argued the evi-
    dence at trial was insufficient to sustain his DUI conviction
    “because there was no evidence that [Grutell’s] operation or
    actual physical control of the vehicle occurred on a public
    roadway or private property with public access, as required by
    . . . §60-6,108.” 9
    The Court of Appeals considered each of these arguments
    and, in a memorandum opinion, found none had merit. 10 It
    reasoned that under § 60-6,108(1), Nebraska’s DUI statutes do
    not apply just on highways, but instead apply everywhere in
    Nebraska except on private property not open to public access.
    It rejected Grutell’s suggestion that the trial court had pre-
    cluded him from raising § 60-6,108(1), and instead, it found
    that because Grutell had not offered evidence or argument that
    the DUI statutes did not apply to the ditch where he was found,
    there was no need for the district court to make a finding, or to
    instruct the jury, on the requirements of § 60-6,108(1). In its
    analysis, the Court of Appeals also remarked that the require-
    ments of § 60-6,108(1) are “not an essential element of [DUI]
    under § 60-6,196(1).” 11
    Grutell petitioned this court for further review, arguing
    primarily that the Court of Appeals’ analysis had the effect
    of improperly shifting the burden of proof on a material ele-
    ment of the crime of DUI from the State to the defendant. We
    granted further review to address Grutell’s argument that the
    provisions of § 60-6,108(1) are a material element of the crime
    of DUI.
    8
    Id.
    9
    Reply brief for appellant at 2.
    10
    Grutell, 
    supra note 2
    .
    11
    Id. at *7, citing State v. Armagost, 
    291 Neb. 117
    , 
    864 N.W.2d 417
     (2015)
    (holding when instructing jury it is proper for court to describe offense in
    language of statute).
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    ASSIGNMENTS OF ERROR
    Grutell assigns, restated, that the Court of Appeals erred in
    its plain error review by (1) rejecting his claim that the district
    court precluded him from challenging the status of the ditch
    under § 60-6,108(1), (2) shifting the burden of proof to Grutell
    to show he was on private property that was not open to public
    access, and (3) failing to determine as a matter of law whether
    a ditch adjacent to a gravel road satisfies the requirements of
    § 60-6,108(1).
    STANDARD OF REVIEW
    [1] An appellate court may find plain error on appeal when
    an error unasserted or uncomplained of at trial, but plainly
    evident from the record, prejudicially affects a litigant’s sub-
    stantial right and, if uncorrected, would result in damage to the
    integrity, reputation, and fairness of the judicial process. 12
    [2] Statutory interpretation presents a question of law. 13
    ANALYSIS
    [3] All of Grutell’s assignments of error turn on the central
    premise that the provisions of § 60-6,108(1) are an essential
    element of the crime of DUI which the State must, in every
    case, prove beyond a reasonable doubt. To determine the ele-
    ments of a crime, we look to the text of the enacting statute. 14
    Material Elements of DUI
    The crime of DUI is defined in § 60-6,196, one of many
    statutes in the Nebraska Rules of the Road. That statute
    provides:
    (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;
    12
    State v. Munoz, 
    303 Neb. 69
    , 
    927 N.W.2d 25
     (2019).
    13
    State v. Brye, 
    304 Neb. 498
    , 
    935 N.W.2d 438
     (2019).
    14
    State v. Mann, 
    302 Neb. 804
    , 
    925 N.W.2d 324
     (2019).
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    (b) When such person has a concentration of eight-
    hundredths of one gram or more by weight of alcohol per
    one hundred milliliters of his or her blood; or
    (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. 15
    [4-6] We have explained that under § 60-6,196, a DUI
    violation is a single offense that can be proved in more than
    one way. 16 Based on the text of § 60-6,196, the essential ele-
    ments the State must prove beyond a reasonable doubt are
    (1) that the defendant was operating or was in actual physi-
    cal control of a motor vehicle and (2) that at the time the
    defendant did so, he or she was either (a) under the influence
    of alcoholic liquor or of any drug, or (b) had a concentration
    of .08 of 1 gram or more by weight of alcohol per 100 mil-
    liliters of his or her blood, or (c) had a concentration of .08
    of 1 gram or more by weight of alcohol per 210 liters of his
    or her breath. 17 And where, as here, the State has charged an
    aggravated offense, 18 alleging as part of the DUI offense that
    the defendant also had a breath alcohol concentration of .15
    or more, that allegation is also considered an essential ele-
    ment the State must prove beyond a reasonable doubt. 19 But
    none of the statutes defining the offense of DUI, or establish-
    ing the penalties for DUI, contain any geographic limitations
    or exceptions.
    It is another statute contained within the Nebraska Rules of
    the Road, § 60-6,108(1), that limits the applicability of the DUI
    statutes by providing in relevant part:
    (1) The provisions of the Nebraska Rules of the Road
    relating to operation of vehicles refer exclusively to
    15
    § 60-6,196.
    16
    State v. Kuhl, 
    276 Neb. 497
    , 
    755 N.W.2d 389
     (2008).
    17
    See 
    id.
    18
    See § 60-6,197.03.
    19
    See State v. Dinslage, 
    280 Neb. 659
    , 
    789 N.W.2d 29
     (2010).
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    operation of vehicles upon highways except where a
    different place is specifically referred to in a given sec-
    tion, but sections 60-6,196 [(defining crime of DUI)],
    60-6,197 [(addressing chemical tests for DUI)], [and]
    60-6,197.04 [(addressing preliminary breath test for
    DUI)] shall apply upon highways and anywhere through-
    out the state except private property which is not open to
    public access.
    (Emphasis supplied.)
    [7] The plain language of § 60-6,108(1) shows the Legislature
    intends the DUI statutes to apply not just on Nebraska’s high-
    ways as that term is defined, 20 but everywhere in Nebraska
    except private property not open to public access. Stated dif-
    ferently, the only place in Nebraska where the DUI statutes do
    not apply to the operation or control of a motor vehicle is on
    private property which is not open to public access. 21 As such,
    the provisions of § 60-6,108(1) are best understood as creating
    a geographical exception to the DUI statutes for private prop-
    erty not open to public access.
    Is Exception in § 60-6,108(1)
    Material Element of DUI?
    The central question presented in this appeal is whether
    the exception set out in § 60-6,108(1) is a material element
    of the crime of DUI, such that the State must always dis-
    prove the exception in order to prove the crime of DUI. It
    is significant to our analysis that the exception at issue does
    not appear in the statute defining the crime, but, rather, in a
    separate statute.
    Sometimes, when enacting a separate statutory exception to
    a criminal offense, the Legislature has been clear that the State
    is not required to negate the exception to prove the offense and
    the burden of proving the exception is on the person claiming
    20
    See 
    Neb. Rev. Stat. § 60-624
     (Reissue 2010).
    21
    Matit, supra note 5.
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    its benefit. 22 The exception found in § 60-6,108(1) contains no
    such language. But that does not mean the State is required, in
    every DUI case, to negate the exception in § 60-6,108(1).
    As a general rule, most jurisdictions hold that when a statu-
    tory exception appears in the statute defining the crime, the
    prosecution is required to plead and prove the defendant does
    not fall within the exception, but when the exception appears in
    a separate statute, it is considered a matter of defense. 23 Cases
    in Nebraska have followed this general rule. 24
    [8] In Nebraska, a criminal complaint or information does
    not need to affirmatively negate any statutory exceptions which
    are not descriptive of the offense. 25 Thirty years ago, in State v.
    Golgert, 26 we applied this rule in DUI cases.
    [9] In Golgert, we considered whether an earlier codification
    of § 60-6,108(1) 27 required the State to affirmatively allege in
    the complaint that the crime of DUI occurred on a “highway.”
    At the time, the earlier codification of § 60-6,108(1) pro-
    vided that the statutes related to the crimes of careless driving
    22
    See, e.g., 
    Neb. Rev. Stat. § 8-1121
     (Reissue 2012) (“[i]n any proceeding
    under the Securities Act of Nebraska, the burden of proving an exemption
    or an exception from a definition shall be upon the person claiming
    it”); 
    Neb. Rev. Stat. § 28-432
    (1) (Reissue 2016) (State need not negate
    exemptions or exceptions set out in Uniform Controlled Substances Act;
    burden of proving exemption or exception shall be upon person claiming
    its benefit).
    23
    See Annot., 
    153 A.L.R. 1218
     (1944) (cases cited therein).
    24
    Compare, e.g., Mann, 
    supra note 14
     (exception appearing in statute
    defining offense is material element State must prove); State v. Hind,
    
    143 Neb. 479
    , 
    10 N.W.2d 258
     (1943) (State required to plead and prove
    exception contained within statute defining crime); Roberts v. State,
    
    110 Neb. 759
    , 
    195 N.W. 114
     (1923) (exception not contained in statute
    defining offense is matter of defense); Holmes v. State, 
    82 Neb. 406
    , 
    118 N.W. 99
     (1908) (State required to plead and prove exception contained
    within statute defining crime).
    25
    See Jacox v. State, 
    154 Neb. 416
    , 
    48 N.W.2d 390
     (1951).
    26
    State v. Golgert, 
    223 Neb. 950
    , 
    395 N.W.2d 520
     (1986).
    27
    See 
    Neb. Rev. Stat. § 39-603
    (1) (Reissue 1984).
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    and reckless driving applied “upon highways and anywhere
    throughout the state,” but that another series of statutes in
    the Nebraska Rules of the Road, including the DUI statutes,
    applied only on “highways” as that term was then defined. 28
    Golgert noted the well-established rule that an information is
    sufficient if it alleges the crime in the language of the enacting
    statute, and it observed that the text of the statute defining DUI
    did not address highways. Because the DUI enacting statute
    did not include the limitation that the offense must occur on a
    highway, we held that being on a highway was “not an element
    of the crime which must be alleged in the complaint.” 29
    We pause to acknowledge that even after Golgert, it is a
    relatively common practice for prosecutors, when charging
    DUI, to include allegations in the complaint or information
    that at the time the defendant was operating or in actual
    physical control of a motor vehicle, he or she was not on
    private property not open to public access. Similarly, the DUI
    records we see on appeal show it is a common practice, in
    DUI trials, for courts to routinely instruct the jury on the
    requirements of § 60-6,108(1), either through the elements
    instruction or through definitional instructions. While the
    better practice may be to routinely instruct the jury on the
    requirements of § 60-6,108(1), the question here is whether it
    was plain error for the trial court to not address the exception
    at all. Like the Court of Appeals, we can find no plain error
    in that regard.
    [10] We agree with the Court of Appeals that the excep-
    tion in § 60-6,108(1) is not a material element of the offense
    of DUI which the State must plead and prove in every case. 30
    28
    See id.
    29
    Golgert, 
    supra note 26
    , 
    223 Neb. at 955
    , 
    395 N.W.2d at 523
    . Accord
    State v. Wagner, 
    295 Neb. 132
    , 
    888 N.W.2d 357
     (2016) (information
    charging refusal of chemical test is sufficient if it alleges facts or elements
    necessary to constitute offense described in statute and intended to be
    punished).
    30
    See Golgert, 
    supra note 26
    .
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    Instead, the exception in § 60-6,108(1) creates an affirmative
    defense to the crime of DUI, and that important distinction
    impacts the burden of proof.
    § 60-6,108(1) and Burden of Proof
    [11,12] In State v. Edwards, 31 we recognized that courts
    in some jurisdictions require criminal defendants to bear the
    burden of proving an affirmative defense. But in Nebraska, we
    have adopted the rule that in the absence of a statute placing
    the burden of proving an affirmative defense on the defendant
    in a criminal case, 32 the nature of an affirmative defense is
    such that the defendant has the initial burden of going forward
    with evidence of the defense, and once the defendant has
    produced sufficient evidence to raise the defense, the issue
    becomes one which the State must disprove. 33 The evidence
    necessary to raise an affirmative defense may be adduced
    either by the defendant’s witnesses or in the State’s case
    in chief without the necessity of the defendant’s presenting
    evidence. 34 A defendant need only adduce a slight amount of
    evidence to satisfy this initial burden of raising an affirma-
    tive defense. 35
    As several of our prior cases addressing § 60-6,108(1) dem-
    onstrate, it is common for a defendant to raise the applicability
    of § 60-6,108(1) in pretrial motions and during trial. 36 When
    31
    State v. Edwards, 
    286 Neb. 404
    , 
    837 N.W.2d 81
     (2013).
    32
    See, e.g., 
    Neb. Rev. Stat. §§ 28-202
     and 29-2203 (Reissue 2016).
    33
    Edwards, 
    supra note 31
    ; State v. Kinser, 
    252 Neb. 600
    , 
    567 N.W.2d 287
    (1997).
    34
    See Kinser, 
    supra note 33
    .
    35
    
    Id.
    36
    See, e.g., State v. Pester, 
    294 Neb. 995
    , 
    885 N.W.2d 713
     (2016)
    (§ 60-6,108(1) raised in motion to quash, motion to suppress, and motion
    for directed verdict); Matit, supra note 5 (§ 60-6,108(1) raised in motion to
    suppress and at trial); State v. Garcia, 
    281 Neb. 1
    , 
    792 N.W.2d 882
     (2011)
    (raising § 60-6,108(1) in motion to suppress, at trial, and at enhancement
    hearing); State v. Prater, 
    268 Neb. 655
    , 
    686 N.W.2d 896
     (2004) (raising
    § 60-6,108(1) at trial).
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    cases have presented a question whether a vehicle was on pri-
    vate property not open to public access, it has generally been
    treated as a fact question for the fact finder to determine. 37 And
    our prior cases show that when § 60-6,108(1) was raised in
    a case involving a jury, the jury was instructed in a way that
    required the State to disprove the applicability of the defense. 38
    As such, while our prior cases did not expressly characterize
    the exception in § 60-6,108(1) as an affirmative defense, we
    have consistently treated it as such.
    With this framework in mind, we address Grutell’s assign-
    ments of error on further review.
    No Plain Error
    In his brief on further review, Grutell first argues that the
    Court of Appeals erred in rejecting his claim that the district
    court prevented him from raising § 60-6,108(1). This argument
    focuses on the trial court’s remark, made outside the presence
    of the jury, that the State was not required to prove that the
    DUI offense occurred on a public highway. The trial court’s
    remark was a correct statement of the law, and we agree with
    the Court of Appeals that this remark did not preclude Grutell
    from raising the defense that his vehicle was on private prop-
    erty not open to public access.
    Next, Grutell argues the Court of Appeals erred when it
    found that his failure to invoke § 60-6,108(1) prevented a
    finding of plain error by the trial court in not addressing that
    statute. Grutell argues that the Court of Appeals’ analysis
    improperly shifted the burden of proof on § 60-6,108(1) from
    the State to the defense. We disagree.
    37
    See, Hoppens v. Nebraska Dept. of Motor Vehicles, 
    288 Neb. 857
    , 
    852 N.W.2d 331
     (2014); Matit, supra note 5; Prater, 
    supra note 36
    . But
    see State v. McCave, 
    282 Neb. 500
    , 
    805 N.W.2d 290
     (2011) (whether
    residential driveway was private property not open to public access was
    question of statutory interpretation and thus matter of law, since Legislature
    defined “[p]rivate road or driveway” in 
    Neb. Rev. Stat. § 60-649
     (Reissue
    2010)).
    38
    See, e.g., Pester, 
    supra note 36
    ; Matit, supra note 5.
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    As we have already explained, the exception in § 60-6,108(1)
    is not a material element of DUI. Rather, it is a separate statu-
    tory exception to the criminal offense of DUI, and as such, it
    is a matter to be raised initially as an affirmative defense. The
    Court of Appeals correctly observed that in this court’s prior
    opinions addressing § 60-6,108(1), the issue of whether the
    defendant was on private property not open to public access
    was raised by the defense through pretrial motions and through
    the introduction of evidence at trial. 39 Because Grutell never
    raised the affirmative defense of § 60-6,108(1), the Court of
    Appeals correctly rejected his claim that the trial court plainly
    erred in not addressing it.
    Finally, Grutell argues the Court of Appeals erred in failing
    to address, as a matter of law, whether § 60-6,108(1) applies to
    a ditch next to a gravel road. Again we disagree.
    As stated earlier, the issue of whether a vehicle was being
    operated or controlled on private property not open to public
    access is ordinarily a fact question to be determined by the
    fact finder, and not an issue to be determined as a matter of
    law. For the sake of completeness, we note that in State v.
    Thelen, 40 we recently held as a matter of statutory interpreta-
    tion that the ditch area within the county’s right-of-way is part
    of the “public road” for purposes of 
    Neb. Rev. Stat. § 39-301
    (Reissue 2016). We express no opinion regarding the appli-
    cability, if any, of the holding in Thelen to questions under
    § 60-6,108(1). Instead, we emphasize that, on this record, it
    was not necessary for either the trial court or the Court of
    Appeals to address whether § 60-6,108(1) applies to a roadside
    ditch, because Grutell did not raise that affirmative defense in
    the trial court.
    Instead, Grutell pursued an entirely different defense the-
    ory. Based on his testimony that he had not become intoxi-
    cated until after his vehicle got stuck in the ditch, he argued
    39
    See, e.g., cases cited supra note 36.
    40
    State v. Thelen, ante p. 334, 
    940 N.W.2d 259
     (2020).
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    the State could not show he had actual physical control over
    a “movable” vehicle while intoxicated. The jury rejected
    this theory.
    On this record, Grutell did nothing to invoke the provisions
    of § 60-6,108(1) and there was no evidence adduced at trial
    by either party to create a fact issue regarding the applicabil-
    ity of § 60-6,108(1). The Court of Appeals correctly rejected
    Grutell’s claims of plain error.
    CONCLUSION
    Finding no plain error in how either the trial court or the
    Court of Appeals addressed § 60-6,108(1), we affirm.
    Affirmed.
    Funke, J., participating on briefs.