                          IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL

                                     STATE V. STUBBENDICK


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                STATE OF NEBRASKA, APPELLEE,
                                             V.
                               HAROLD STUBBENDICK, APPELLANT.


                           Filed September 30, 2014.     No. A-14-232.


       Appeal from the District Court for Otoe County: DANIEL E. BRYAN, JR., Judge. Affirmed.
       Jenniffer Panko-Rahe, of Panko-Rahe Law Office, for appellant.
       Jon Bruning, Attorney General, and Austin N. Relph for appellee.


       IRWIN, MOORE, and PIRTLE, Judges.
       MOORE, Judge.
                                        INTRODUCTION
         Harold Stubbendick appeals from the order of the district court for Otoe County, which
affirmed his conviction and sentence in the county court for driving under the influence (DUI),
first offense. Because Stubbendick did not file a statement of errors, the district court reviewed
for plain error. On appeal to this court, Stubbendick asserts that the county court erred in denying
his motion to suppress, that there was insufficient evidence to show that he operated or was in
control of his vehicle or that his vehicle was on a public roadway, and that he received
ineffective assistance of trial counsel. Because we find no plain error and Stubbendick has not
demonstrated that he was prejudiced by his trial counsel’s performance, we affirm.
                                        BACKGROUND
      On April 1, 2013, the State filed a complaint in the county court, charging Stubbendick
with DUI, first offense, in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010), a Class W
misdemeanor, for an offense alleged as occurring on January 29.




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         Stubbendick filed a motion to suppress, which was heard by the county court on July 15,
2013. At the suppression hearing, Stubbendick stipulated, for purposes of the hearing, that the
field sobriety tests conducted on January 29 would show probable cause for the purpose of his
arrest, that he was impaired at the time by a controlled substance, and that the issue before the
court was whether he was operating or in control of a motor vehicle on a public roadway. He
made it clear that he was not raising the issue of probable cause for a stop of his vehicle at that
point.
         The only witness at the hearing was Brian Briley, a deputy sheriff with the Otoe County
Sheriff’s Department. On January 29, 2013, Briley was dispatched to Otoe, Nebraska, to
investigate a report that two individuals in a white truck were “spotlighting,” or shining a light
on, houses in Otoe. The report identified Stubbendick and Renner Wilson as the individuals
doing the spotlighting. Dispatch received the spotlighting complaint around 8 p.m., and Briley
arrived in Otoe around 8:17 p.m. As Briley drove toward Stubbendick’s house, Briley saw a
pickup sitting slightly off the roadway in a rock-covered area next to the street between the
sidewalk and the street. Briley observed that the pickup’s headlights were on, and he could see
an exhaust plume coming from the vehicle, indicating to him that the vehicle was running. Briley
observed two individuals sitting in the pickup, and based on prior contact, he recognized them as
Stubbendick and Wilson. Stubbendick was in the driver’s seat.
         Briley pulled up next to the pickup and rolled down the passenger side window of his
patrol car. Wilson exited the pickup, walked up to the patrol car, and spoke with Briley. Briley
engaged him in conversation about the reported spotlighting, and Wilson admitted that he and
Stubbendick had spotlighted a house in Otoe. Briley smelled marijuana on Wilson, who admitted
that he had smoked marijuana about an hour earlier. Briley also had contact with Stubbendick,
who admitted to smoking marijuana earlier that evening. When other deputies arrived at the
scene, they asked Stubbendick to perform field sobriety tests, the results of which led to
Stubbendick’s arrest for DUI.
         The county court received an aerial photograph of the area into evidence, and Briley
marked the photograph to show the location where he had observed the pickup. Briley testified
further that the pickup was parked roughly 4 to 5 feet off the paved road in a gravel area between
the roadway and the sidewalk and that he had seen vehicles parked there before. According to
Briley, there were no signs or other indications that the area was not open to public access.
Although Briley did not actually observe Stubbendick driving the pickup, he testified that he
observed fresh tire tracks in newly fallen snow leading from the road adjacent to the gravel area
straight to where the pickup was parked.
         On July 22, 2013, the county court entered an order denying Stubbendick’s motion to
suppress. The court found that Stubbendick’s vehicle was parked on a gravel area between the
roadway and sidewalk, the vehicle was running, and Stubbendick was seated in the driver’s seat.
The court noted Stubbendick’s admission that he consumed marijuana earlier during the evening
in question and his stipulation that he was under the influence at the time of the field sobriety
tests administered to him. The court determined that the remaining question was whether the
pickup was parked “upon a highway or anywhere throughout the state except private property
which is not open to public access.” The court reviewed the evidence about the pickup’s location
and found that the location was “not a private driveway leading up to [Stubbendick’s] home or


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his garage,” but that it was “more akin to an offstreet parking area.” The court concluded that
“the evidence substantiate[d] the deputy’s belief that [the] area in which [Stubbendick’s] vehicle
was parked was an area on private property open to public access.” The court found “sufficient
articulable facts to establish probable cause that [Stubbendick] was operating a motor vehicle
upon private property open to public access” and denied Stubbendick’s motion to suppress.
         A bench trial was held before the county court on August 27, 2013. The parties prepared
a joint stipulation of facts, subject to Stubbendick’s renewal of the objections raised in his
motion to suppress as to the probable cause for his arrest. The court overruled Stubbendick’s
renewed objections and received the parties’ stipulated facts, which included many of the facts
brought forth at the suppression hearing, as well as facts about Briley’s search of Stubbendick
and the pickup, the drug influence evaluation report from the night of the arrest, and the results
from Stubbendick’s urinalysis. We discuss the stipulated facts relevant to Stubbendick’s appeal
to this court in the analysis section below.
         The county court found Stubbendick guilty of DUI, and on November 25, 2013, entered
an order sentencing him to probation for 9 months.
         Stubbendick appealed to the district court. Because Stubbendick’s attorney did not file a
statement of errors, the district court reviewed the proceedings in the county court for plain error.
On February 11, 2014, the district court entered an order, finding no plain error and affirming
Stubbendick’s conviction and sentence. Stubbendick subsequently perfected his appeal to this
court.
                                  ASSIGNMENTS OF ERROR
        Stubbendick asserts, consolidated and restated, that the district court erred in affirming
the county court’s judgment because (1) the county court erred in denying his motion to suppress
and (2) there was insufficient evidence to convict him of DUI. He also asserts that he received
ineffective assistance of trial counsel.
                                    STANDARD OF REVIEW
        Where no timely statement of errors is filed in an appeal from a county court to a district
court, appellate review is limited to plain error. State v. Griffin, 270 Neb. 578, 705 N.W.2d 51
(2005). Plain error may be found 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. State v. Ramirez, 287 Neb. 356, 842 N.W.2d 694 (2014).
                                            ANALYSIS
Probable Cause for Arrest.
       Stubbendick asserts that the district court erred in affirming the county court’s judgment
because the county court erred in denying his motion to suppress. He argues that there was no
probable cause to believe that he was operating or in control of a vehicle and because his vehicle
was on private property not open to public access. Under Neb. Rev. Stat. § 60-6,108(1) (Reissue
2010), Nebraska’s DUI statutes do not apply to a person’s operation or control of a vehicle on




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private property that is not open to public access. State v. McCave, 282 Neb. 500, 805 N.W.2d
290 (2011).
        Probable cause to support a warrantless arrest exists only if the officer has knowledge at
the time of the arrest, based on information that is reasonably trustworthy under the
circumstances, that would cause a reasonably cautious person to believe that a suspect has
committed or is committing a crime. State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014).
Probable cause is a flexible, commonsense standard that depends on the totality of the
circumstances. Id. Probable cause is not defeated because an officer incorrectly believes that a
crime has been or is being committed. Id. But implicit in the probable cause standard is the
requirement that a law enforcement officer’s mistakes be reasonable. Id. An appellate court
determines whether probable cause existed under an objective standard of reasonableness, given
the known facts and circumstances. Id.
        We first address whether it was reasonable for Briley to conclude that Stubbendick was
operating or in control of the vehicle. Stubbendick argues that Briley did not have probable cause
to believe he was operating the vehicle because Briley only saw the vehicle while parked. In
addition, the stipulated facts indicate that when Briley reached the vehicle, the engine had been
shut off. The Nebraska Supreme Court has determined that “operate,” as used in the DUI
statutes, refers to the actual physical handling of the controls of the vehicle while under the
influence. See State v. Baker, 236 Neb. 261, 461 N.W.2d 251 (1990). In DUI cases,
circumstantial evidence can establish a person’s operation of a motor vehicle. State v. Matit,
supra.
        In State v. Eckert, 186 Neb. 134, 181 N.W.2d 264 (1970), the Nebraska Supreme Court
found the evidence sufficient to show that the defendant had been operating a vehicle while
intoxicated where the defendant’s vehicle was found parked in the right-hand lane of a public
highway, the defendant was slumped over the steering wheel in a drunken stupor, and he was
alone in the vehicle, even though the vehicle was not moving and the engine was not running at
the time of his arrest.
        In State v. Baker, 224 Neb. 130, 395 N.W.2d 766 (1986), the defendant was the sole
occupant of a vehicle parked in a turn lane early in the morning. He was asleep when discovered
by a deputy sheriff, who noted the strong smell of alcohol on the defendant’s breath and his
slurred speech. The Supreme Court found sufficient circumstantial evidence that the defendant
was operating a vehicle while intoxicated. See, also, State v. Johnson, 250 Neb. 933, 554 N.W.2d
126 (1996) (weight and credibility of circumstantial evidence regarding defendant’s operation of
vehicle was for trier of fact).
        In contrast, in State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011), the Nebraska
Supreme Court found that officers did not have probable cause to believe the defendant had
driven a vehicle on a public highway while intoxicated. In that case, the defendant was found in
a vehicle parked in a residential driveway. However, there was no evidence to establish or infer
that the defendant had been driving prior to being located in the vehicle in the driveway.
        In this case, Briley responded to a report that Stubbendick and Wilson had been
spotlighting houses in Otoe. Dispatch received the spotlighting complaint around 8 p.m., and
Briley arrived in Otoe around 8:17, finding these individuals in a parked pickup. Wilson
admitted that they had spotlighted a particular house in Otoe. Briley observed Stubbendick in the


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driver’s seat, the vehicle’s headlights were on, a plume of exhaust was coming from the vehicle,
and there were fresh tire tracks in the snow leading directly to the vehicle. We conclude that the
county court did not plainly err in finding that Briley had probable cause to believe that
Stubbendick was operating or in control of the vehicle.
        The next question in this case is whether it was reasonable for Briley to conclude that
Stubbendick’s vehicle was situated on property which was open to public access. The parties
draw our attention to three cases in which the Nebraska Supreme Court has considered whether a
roadway was open to public access.
        In State v. Prater, 268 Neb. 655, 686 N.W.2d 896 (2004), the defendant, who was
slumped over in the driver’s seat, was found in a vehicle with its engine running in an apartment
complex parking lot. The defendant was convicted under a city ordinance with a provision
similar to § 60-6,108. The Nebraska Supreme Court determined that “the phrase ‘open to public
access’ means that the public has permission or the ability to enter.” State v. Prater, 268 Neb. at
658, 686 N.W.2d at 898. The court also noted that whether a location is open to public access is
primarily a question of fact. Id. Because the parking lot in that case was also used by
maintenance workers and guests of residents, the Supreme Court concluded that the trial court
did not err in finding the city ordinance applicable and that the parking lot was open to public
access.
        In contrast, in State v. McCave, supra, the Nebraska Supreme Court reached a different
result. As noted above, the defendant’s vehicle in that case was parked in a residential driveway
and a portion of his vehicle was left overhanging the sidewalk. The Supreme Court noted Neb.
Rev. Stat. § 60-649 (Reissue 2010), which provides, “Private road or driveway shall mean every
way or place in private ownership and used for vehicular travel by the owner and those having
express or implied permission from the owner but not by other persons.” The Supreme Court
concluded that under § 60-649, a residential driveway is not private property that is open to
public access. State v. McCave, supra. The Supreme Court reasoned further that criminal liability
under § 60-6,196 does not extend to intoxicated persons in control of a vehicle on a residential
driveway, regardless of whether part of the vehicle crosses a sidewalk. State v. McCave, supra.
        More recently, in State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014), the Nebraska
Supreme Court found probable cause for a defendant’s arrest where the defendant’s vehicle was
found parked on a paved area between the sidewalk and the street in front of an apartment
complex. The arresting officer observed the defendant start the vehicle on several occasions and
approached after observing the driver exit the vehicle, urinate on a tree, and return to the vehicle.
Upon approaching, the officer found the defendant in an intoxicated state. The officer understood
the area where the defendant’s vehicle was parked to be part of the city’s right-of-way. In
observing the area on other occasions, the officer had seen vehicles park in and then leave the
paved area, and he understood that the area was used in that way by both residents and
nonresidents of the apartment complex. The Nebraska Supreme Court found that the trial court
did not err in finding that the officer had a reasonable belief that the vehicle was located on
property that was open to public access.
        The case before us is most similar to State v. Matit, supra. Here, Stubbendick’s vehicle
was located just off the village-maintained portion of the blacktopped roadway, on a gravel area
running parallel to the road, immediately adjacent to the road between the roadway and the


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sidewalk. The evidence shows that the area is generally used for parking vehicles, and there were
no signs indicating the area was private property. Although near Stubbendick’s house, the pickup
was not parked on a driveway leading to his house or garage. Based upon the foregoing facts, we
conclude that Briley’s belief that the vehicle was situated on property open to public access was
reasonable. We find no plain error in the county court’s finding that Briley had probable cause to
believe that the vehicle was located on property open to public access.
       We find no error in the district court’s affirmance of the county court’s decision denying
Stubbendick’s motion to suppress.
Sufficiency of Evidence.
        Stubbendick asserts that the district court erred in affirming the county court’s judgment
because there was insufficient evidence to convict him of DUI. Under § 60-6,196, it is unlawful
for a person to operate or be in the actual physical control of any motor vehicle while under the
influence of alcohol or a drug. Stubbendick does not challenge the finding that he was under the
influence of drugs at the time of the encounter, so we need not detail the facts relating to this
element of the crime. Rather, we focus on the stipulated facts regarding Stubbendick’s operation
of the vehicle and the location of the vehicle at the time of the stop.
        When reviewing a criminal conviction for sufficiency of the evidence to sustain the
conviction, the relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt. State v. Juranek, 287 Neb. 846, 844
N.W.2d 791 (2014). In reviewing a criminal conviction, an appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence. Id.
        As noted above, in DUI cases, circumstantial evidence can establish a person’s operation
of a motor vehicle. State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014). The trial stipulation
shows that when Briley first observed the vehicle in question, it had its headlights on and there
was a plume of exhaust coming from it. Stubbendick was in the driver’s seat. Viewing the
evidence in the light most favorable to the State, we conclude the evidence was sufficient to
establish Stubbendick’s operation of a motor vehicle.
        We further conclude that the evidence was sufficient to establish that the vehicle was
located on property open to public access at the time of the stop. The stipulated facts indicate that
at the time of the stop, the pickup was located just off the village-maintained portion of the
blacktopped roadway on a gravel area running parallel to the road, immediately adjacent to the
road, and between the roadway and the sidewalk. Further, the area where the pickup was located
was generally used for parking vehicles and there were no signs indicating the area was private
property. The vehicle was not in the driveway leading to Stubbendick’s house. See State v. Matit,
supra.
        We find no plain error in the county court’s finding of sufficient evidence to support
Stubbendick’s conviction for DUI and no error in the district court’s affirmance.
Ineffective Assistance of Counsel.
        Stubbendick asserts that he received ineffective assistance of trial counsel. He argues that
he received ineffective assistance of counsel when his counsel failed to file a statement of errors



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with the district court, limiting it to review for plain error, and failed to challenge the sufficiency
of the evidence to support his conviction on appeal to the district court.
         The fact that an ineffective assistance of counsel claim is raised on direct appeal does not
necessarily mean that it can be resolved. State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).
The determining factor is whether the record is sufficient to adequately review the question. Id.
An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing. Id. In the context of a direct appeal, like the requirement in postconviction
proceedings, mere conclusions of fact or law are not sufficient to allege ineffective assistance of
counsel. Id.
         To prevail on a claim of ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his or her
counsel’s performance was deficient and that this deficient performance actually prejudiced the
defendant’s defense. State v. Filholm, supra. An appellate court may address the two prongs of
this test, deficient performance and prejudice, in either order. Id. To show prejudice on a claim of
ineffective assistance of counsel, the defendant must demonstrate a reasonable probability that
but for counsel’s deficient performance, the result of the proceeding would have been different.
Id.
         With respect to prejudice, Stubbendick asserts because his attorney did not file a
statement of errors, the district court was limited to plain error review. He further argues that had
counsel properly filed a statement of errors which challenged the probable cause findings
regarding his operation of a vehicle on a public roadway and the sufficiency of the evidence, the
district court may have found in his favor on these issues.
         Stubbendick’s arguments do not demonstrate a reasonable probability that but for his
counsel’s allegedly deficient performance, the result of the proceeding would have been
different. We have thoroughly reviewed Stubbendick’s first two assignments of error, albeit
under a plain error standard, and have found no plain error. We conclude that even if reviewed
under traditional standards of review, the evidence is sufficient to find probable cause for
Stubbendick’s arrest and to support his conviction for DUI. See State v. Matit, 288 Neb. 163, 846
N.W.2d 232 (2014) (appellate court reviews trial court’s findings of fact for clear error but
conducts independent review of whether facts trigger or violate Fourth Amendment protections;
question for appellate court reviewing sufficiency of evidence is whether, after viewing evidence
in light most favorable to prosecution, any rational trier of fact could have found essential
elements of crime beyond reasonable doubt). Accordingly, Stubbendick has not shown that he
was prejudiced by his counsel’s performance. This assignment of error is without merit.
                                          CONCLUSION
        We find no plain error in the district court’s affirmance of the county court’s denial of
Stubbendick’s motion to suppress and of his conviction for DUI. Stubbendick did not receive
ineffective assistance of counsel.
                                                                                      AFFIRMED.




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