Nebraska Advance Sheets

STATE v. MATIT 163

Cite as 288 Neb. 163

State of Nebraska, appellee, v. 

Daniel D. Matit, also known

as Yai Bol, appellant.

___ N.W.2d ___

Filed May 16, 2014. No. S-13-318.

1. Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and 

Error. In reviewing a trial court’s ruling on a motion to suppress based on a 

claimed violation of the Fourth Amendment, an appellate court applies a two-part 

standard of review. Regarding historical facts, the 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 the appellate court reviews independently of the trial court’s determination.

2. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, 

whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; such matters are for 

the finder of fact. 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.

3. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the 

trial court.

4. Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S. 

Constitution and article I, § 7, of the Nebraska Constitution protect individuals 

against unreasonable searches and seizures by the government.

5. Arrests: Search and Seizure: Probable Cause: Words and Phrases. An arrest 

is a highly intrusive detention (seizure) of a person that must be justified by probable cause.

6. Warrantless Searches: Probable Cause: Police Officers and Sheriffs. 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.

7. Probable Cause: Words and Phrases. Probable cause is a flexible, commonsense standard that depends on the totality of the circumstances.

8. Probable Cause: Police Officers and Sheriffs. Probable cause is not defeated 

because an officer incorrectly believes that a crime has been or is being committed. But implicit in the probable cause standard is the requirement that a law 

enforcement officer’s mistakes be reasonable.

9. Probable Cause: Appeal and Error. An appellate court determines whether 

probable cause existed under an objective standard of reasonableness, given the 

known facts and circumstances.
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164 288 NEBRASKA REPORTS

10. Drunk Driving: Circumstantial Evidence. Circumstantial evidence may serve 

to establish the operation of a motor vehicle for purposes of Nebraska’s driving 

under the influence statutes.

11. Sentences. When imposing a sentence, a sentencing judge should consider the 

defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and 

cultural background, (5) past criminal record or record of law-abiding conduct, 

and (6) motivation for the offense, as well as (7) the nature of the offense, and 

(8) the amount of violence involved in the commission of the crime.

12. Sentences: Appeal and Error. Where a sentence imposed within the statutory 

limits is alleged on appeal to be excessive, the appellate court must determine 

whether the sentencing court abused its discretion in considering and applying 

the relevant factors as well as any applicable legal principles in determining the 

sentence to be imposed.

Appeal from the District Court for Lancaster County: Paul

D. Merritt, Jr., Judge. Affirmed.

Dennis R. Keefe, Lancaster County Public Defender, Jennifer 

Houlden, and, on brief, Elizabeth D. Elliott, and Claire K. 

Bazata, Senior Certified Law Student, for appellant.

Jon Bruning, Attorney General, George R. Love, and Joel R. 

Rische, Senior Certified Law Student, for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Stephan, J.

Daniel D. Matit, also known as Yai Bol, was charged with 

and convicted of fourth-offense driving while under the influence (DUI). Matit was sentenced to a term of imprisonment of 

2 to 3 years and his driver’s license was revoked for 15 years. 

He appeals his conviction and sentence. Finding no reversible 

error, we affirm.

BACKGROUND

At approximately 1 a.m. on March 5, 2012, Sgt. Benjamin 

Miller of the Lincoln Police Department was conducting surveillance in a marked police car in the area of 13th and E 

Streets in Lincoln, Nebraska. Miller’s car was parked about 11⁄2

blocks east of an apartment complex he was watching. Miller 

saw a vehicle parked on a concrete drive between the street 
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STATE v. MATIT 165

Cite as 288 Neb. 163

and the sidewalk in what Miller referred to as “the city right of 

way” in front of the apartment complex. At various times, he 

saw people approach the vehicle.

On five separate occasions, Miller observed the taillights 

of the vehicle come on and saw exhaust coming from the 

tailpipe, making him believe the vehicle had been started, as 

if to drive away. Each time, the vehicle’s engine stayed on 

for a few minutes, but the vehicle did not move. Miller also 

saw a person who had been seated in the driver’s seat exit 

the vehicle, urinate on a nearby tree, and then return to the 

vehicle.

Based on his observations, Miller made contact with the 

person in the vehicle, who provided identification demonstrating that he was Matit. Miller later learned that Matit also 

uses the name “Yai Bol” and that the vehicle was registered 

to Bol. Miller noticed that Matit’s eyes were bloodshot and 

watery and that there was a strong odor of alcoholic beverage 

about Matit’s person. In addition, Matit’s speech was slurred 

and his dexterity was poor. Miller asked Matit to get out of 

the car, and when Matit did not cooperate, Miller opened the 

door and helped him out of the vehicle. As they approached 

Miller’s police car, Miller noticed that Matit stumbled and 

staggered. Miller administered the horizontal gaze nystagmus 

test to Matit and observed impairment. Miller did not ask 

Matit to complete additional standardized field sobriety tests, 

because Matit was uncooperative and Miller was concerned 

about safety. Miller asked Matit to take a preliminary breath 

test. Matit refused, and Miller transported him to a detoxification center. After Matit was placed under arrest, he provided 

a breath sample. The test showed Matit’s blood alcohol level 

was .216.

Matit was charged by information in Lancaster County 

District Court with DUI, over .15 concentration, and three 

prior convictions. One of the prior offenses was alleged to have 

occurred in Hall County, Nebraska, and the other two were 

alleged to have occurred in Vermont.

Matit filed a motion to suppress in which he asserted that 

police “lacked probable cause to contact, stop, detain, and/or 

arrest” him. He generally argued that Miller was not justified 
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166 288 NEBRASKA REPORTS

in pursuing a DUI investigation after contacting him, because 

he was parked on private property. After conducting a suppression hearing, the district court entered an order denying 

the motion. The court found that Matit’s vehicle was “parked 

in virtually the middle of that portion of the concrete drive 

located between the street and the sidewalk (i.e., in the public right-of-way), facing towards the courtyard of the apartment complex.” After considering this court’s decisions in 

State v. Prater1 and State v. McCave2 the court reasoned that 

whether the concrete drive was open to public access was a 

fact question to be addressed by the jury, thus implicitly finding that Miller’s belief the drive was open to public access 

was reasonable.

The case proceeded to trial, at which Miller testified as a 

witness for the State as summarized above, and Matit testified 

in his own behalf. Matit acknowledged that he also uses the 

name “Yai Bol.” He testified that on March 5, 2012, he visited 

a friend at the 13th and E Streets location and remembered sitting in the vehicle in the drive, but he did not remember starting the vehicle. He said the vehicle was never moved while he 

was there. He was drinking beer that night, starting at 11 p.m. 

while at a friend’s house. Although he admitted he was intoxicated, Matit denied drinking any alcohol in the car. He also 

denied urinating on a tree.

The jury found Matit guilty of DUI with a concentration 

of more than .15 of 1 gram or more by weight of alcohol per 

210 liters of his breath at the time he was operating or in the 

actual physical control of a motor vehicle. After an enhancement hearing, the court entered an order finding Matit had 

two prior convictions for DUI, making the current conviction 

a third offense. Four days later, the court entered an order 

“nunc pro tunc,” finding that Matit had three prior convictions for DUI, making the current conviction a fourth offense. 

Matit was sentenced to a term of 2 to 3 years in prison, to 

be served consecutively to his sentences in another case, and 

1 State v. Prater, 268 Neb. 655, 686 N.W.2d 896 (2004).

2 State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
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STATE v. MATIT 167

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his driver’s license was revoked for 15 years. He filed this 

timely appeal.

ASSIGNMENTS OF ERROR

Matit assigns, restated, (1) that the district court erred in 

overruling his motion to suppress for lack of probable cause to 

arrest because his vehicle was on private property not open to 

public access, (2) that the evidence was insufficient to support 

his conviction, (3) that the district court erred in ruling that 

two prior convictions could be used for sentence enhancement, 

(4) that the district court erred in issuing an order nunc pro 

tunc which changed the number of prior convictions from two 

to three, and (5) that the district court abused its discretion by 

imposing an excessive sentence.

STANDARD OF REVIEW

[1] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. 

Regarding historical facts, we review the trial court’s findings 

for clear error, 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.3

[2] In reviewing a sufficiency of the evidence claim, whether 

the evidence is direct, circumstantial, or a combination thereof, 

the standard is the same: An appellate court does not resolve 

conflicts in the evidence, pass on the credibility of witnesses, 

or reweigh the evidence; such matters are for the finder of fact. 

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.4

[3] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court.5

3 State v. Au, 285 Neb. 797, 829 N.W.2d 695 (2013).

4 State v. Wiedeman, 286 Neb. 193, 835 N.W.2d 698 (2013).

5 State v. Sikes, 286 Neb. 38, 834 N.W.2d 609 (2013).
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168 288 NEBRASKA REPORTS

ANALYSIS

Probable Cause for Arrest

Nebraska’s DUI statutes do not apply to operation or control of a vehicle on private property that is not open to public 

access.6 Matit contends that Miller lacked probable cause to 

arrest him because his vehicle was parked on private property 

that was not open to public access at all relevant times.

[4-6] The Fourth Amendment to the U.S. Constitution and 

article I, § 7, of the Nebraska Constitution protect individuals 

against unreasonable searches and seizures by the government.7

An arrest is a highly intrusive detention (seizure) of a person that must be justified by probable cause.8

 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.9

[7-9] Probable cause is a flexible, commonsense standard 

that depends on the totality of the circumstances.10 Probable 

cause is not defeated because an officer incorrectly believes 

that a crime has been or is being committed.11 But implicit 

in the probable cause standard is the requirement that a law 

enforcement officer’s mistakes be reasonable.12 We determine 

6 Neb. Rev. Stat. § 60-6,108(1) (Reissue 2010); State v. McCave, supra 

note 2.

7 State v. McCave, supra note 2; State v. Smith, 279 Neb. 918, 782 N.W.2d 

913 (2010).

8 State v. McCave, supra note 2. See, also, State v. Hedgcock, 277 Neb. 805, 

765 N.W.2d 469 (2009).

9 State v. McCave, supra note 2. See, also, State v. Eberly, 271 Neb. 893, 

716 N.W.2d 671 (2006); State v. Ball, 271 Neb. 140, 710 N.W.2d 592 

(2006) (citing Beck v. State of Ohio, 379 U.S. 89, 85 S. Ct. 223, 13 L. Ed. 

2d 142 (1964)); State v. Buckman, 259 Neb. 924, 613 N.W.2d 463 (2000).

10 State v. McCave, supra note 2. See, also, State v. Smith, supra note 7; State 

v. DeGroat, 244 Neb. 764, 508 N.W.2d 861 (1993).

11 State v. McCave, supra note 2. See, also, State v. Smith, supra note 7.

12 State v. McCave, supra note 2. See, also, Brinegar v. United States, 338 

U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879 (1949).
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Cite as 288 Neb. 163

whether probable cause existed under an objective standard of 

reasonableness, given the known facts and circumstances.13

The key inquiry in this case is whether it was reasonable 

for Miller to conclude that Matit’s vehicle was situated on 

property which was open to public access. We considered 

the question of whether a roadway was open to public access 

in State v. Prater14 and State v. McCave,

15 reaching a different result in each case. In Prater,

16 the defendant was found 

slumped over in the driver’s seat of a vehicle with its engine 

running in an apartment complex parking lot. He was charged 

with violating an Omaha city ordinance that was substantially the same as § 60-6,108(1) in that it applied “‘anywhere 

throughout the city except private property which is not open 

to public access.’”17 We stated that property is “‘“open to 

public access”’” if the public has permission or the ability to 

enter and noted that this was primarily a question of fact.18 We 

concluded that the trial court did not err in finding that the 

city ordinance applied to the parking lot, which was also used 

by maintenance workers and guests of residents, and thus was 

open to public access.

In McCave,

19 the defendant’s vehicle was parked in a residential driveway, with a portion of the vehicle overhanging the 

sidewalk. We held that the residential driveway was not open 

to public access as a matter of law because it met the statutory definition of “private road or driveway,” i.e., a “‘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.’”20 We further reasoned that 

13 Id.

14 State v. Prater, supra note 1.

15 State v. McCave, supra note 2.

16 State v. Prater, supra note 1.

17 Id. at 657, 686 N.W.2d at 898 (emphasis omitted).

18 Id. at 658, 686 N.W.2d at 898.

19 State v. McCave, supra note 2.

20 Id. at 515, 805 N.W.2d at 307, quoting Neb. Rev. Stat. § 60-649 (Reissue 

2010).
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this characterization was not affected by the fact the vehicle 

overhung the sidewalk, because the sidewalk was not intended 

for use by vehicles.

Matit’s vehicle was parked on a paved area between the 

sidewalk and the street. The arresting officer testified that he 

understood this area was a part of the city’s right-of-way. He 

also testified that he had observed the area on other occasions 

and had seen vehicles park in and then leave the paved area. 

He understood the paved area was so used by both residents 

of the apartment complex and nonresidents. Based on this evidence, the district court did not err in finding that Miller had a 

reasonable belief that the vehicle was situated on property that 

was open to public access.

Miller was justified in approaching the vehicle after observing the driver exit the vehicle and urinate on a tree, which was 

an unlawful act. When Miller encountered Matit in an intoxicated state, he had probable cause for the arrest because he had 

observed Matit start the vehicle on several occasions while it 

was situated on what the officer reasonably believed to be a 

part of a public roadway. The district court did not err in denying Matit’s motion to suppress.

Sufficiency of Evidence

The State charged Matit with violating Neb. Rev. Stat. 

§ 60-6,196 (Reissue 2010) by operating or being in actual 

physical control of a motor vehicle upon a highway or anywhere throughout the state except for private property not open 

to public access while under the influence of alcohol, or with 

a concentration of .08 of 1 gram or more by weight of alcohol 

per 210 liters of his breath. Matit does not dispute the fact that 

he had a breath alcohol concentration in excess of the lawful 

limit at the time of his arrest. But he challenges the sufficiency 

of the evidence to support his conviction on the ground that 

the State did not prove that he operated or was in actual physical possession of a motor vehicle on a roadway or other area 

to which the public had access. Our standard of review with 

respect to this claim is very narrow, in that we must find the 

evidence to be sufficient if there is any evidence, when viewed 

in a light favorable to the prosecution, upon which a rational 
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finder of fact could conclude that the State met its burden of 

proof beyond a reasonable doubt.21

The evidence with respect to Matit’s operation or physical 

control of the vehicle came primarily from the testimony of 

Miller. He testified that on five separate occasions, he saw 

Matit start the parked vehicle. Miller could tell the vehicle 

had been started, because the headlights and taillights came on 

and exhaust came out of the tailpipe. Each time, the vehicle’s 

engine ran for a few minutes and was then turned off. When 

Miller approached the vehicle, he saw the ignition keys near 

the console next to the driver’s seat.

[10] Circumstantial evidence may serve to establish the 

operation of a motor vehicle for purposes of the DUI statutes.22

And we have recognized that starting a vehicle is an act within 

the meaning of “operating” a motor vehicle.23 Viewing the evidence in this case in a light most favorable to the State, as our 

standard of review requires, we conclude that there was evidence upon which a rational finder of fact could conclude that 

Matit was operating or in actual physical control of the vehicle 

immediately prior to his arrest.

Miller testified at trial, as he did at the suppression hearing, 

that Matit’s vehicle was situated on the paved area between 

the street and the sidewalk. He testified that based upon 

his understanding of the laws and ordinances of the city of 

Lincoln, the area where the vehicle was parked was a public 

right-of-way owned by the city of Lincoln. He testified that 

no portion of Matit’s vehicle impeded the sidewalk. Miller 

also testified that the area between the street and the sidewalk 

was open to both pedestrian and vehicular traffic. Whether 

Matit’s vehicle was situated on property open to public access 

was a question of fact.24 There was sufficient evidence upon 

which a rational finder of fact could resolve that question 

21 State v. Wiedeman, supra note 4.

22 See, State v. Portsche, 261 Neb. 160, 622 N.W.2d 582 (2001); State v. 

Hanger, 241 Neb. 812, 491 N.W.2d 55 (1992).

23 State v. Portsche, supra note 22.

24 See State v. Prater, supra note 1.
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172 288 NEBRASKA REPORTS

in the affirmative and, thus, sufficient evidence to support 

the conviction.

Excessive Sentence

Matit argues that the sentence imposed on him is excessive. 

He was sentenced to a term of 2 to 3 years in prison, to be 

served consecutively to his sentences in another DUI case. His 

driver’s license was also revoked for 15 years.

Matit was found guilty of a Class III felony,25 which carries 

a minimum sentence of 1 year in prison and a maximum of 20 

years in prison, a $25,000 fine, or both.26 His sentence falls 

within the statutory range for a Class III felony.

[11,12] When imposing a sentence, a sentencing judge 

should consider the defendant’s (1) age, (2) mentality, (3) 

education and experience, (4) social and cultural background, 

(5) past criminal record or record of law-abiding conduct, and 

(6) motivation for the offense, as well as (7) the nature of the 

offense, and (8) the amount of violence involved in the commission of the crime.27 Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused 

its discretion in considering and applying the relevant factors 

as well as any applicable legal principles in determining the 

sentence to be imposed.28 An appellate court will not disturb a 

sentence imposed within the statutory limits absent an abuse of 

discretion by the trial court.29

The presentence report indicates that Matit has filed two 

other appeals. One was recently resolved by this court in State 

v. Bol,

30 when we affirmed his convictions for DUI, refusal to 

take a chemical test, and driving during revocation. The other 

was decided by the Nebraska Court of Appeals and involved 

25 Neb. Rev. Stat. § 60-6,197.03(8) (Cum. Supp. 2012).

26 Neb. Rev. Stat. § 28-105 (Cum. Supp. 2012).

27 State v. McGuire, 286 Neb. 494, 837 N.W.2d 767 (2013).

28 State v. Dixon, 286 Neb. 334, 837 N.W.2d 496 (2013).

29 State v. Sikes, supra note 5.

30 State v. Bol, ante p. 144, ___ N.W.2d ___ (2014).
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a conviction for criminal impersonation, a Class IV felony.31

Matit’s criminal history also includes a DUI in Vermont in 

2005, for which he was incarcerated for 6 to 11 months; a DUI 

in Texas in 2008, disposition unknown; possession of cocaine 

and providing false information to a police officer in Vermont 

in 2009, for which he was fined $5,500 and ordered to serve 

11⁄2 to 21⁄2 years in prison, but the sentences were suspended; a 

DUI and refusal to submit to a chemical test in Hall County in 

2011, for which he was fined and placed on probation; and a 

third-offense DUI in Lancaster County in 2011, for which he 

was sent to jail for 120 days. He was also convicted of third 

degree domestic assault in Hall County in 2012 and was sentenced to 60 days in jail.

The sentence imposed by the trial court was within the 

statutory limits for a Class III felony. Based on Matit’s criminal 

record and considering all of the relevant sentencing factors, 

we conclude the district court did not abuse its discretion in 

imposing the sentence.

Prior Convictions and

Order Nunc Pro Tunc

Matit argues the district court erred in using two prior 

Vermont convictions to enhance his sentence and in issuing an 

order nunc pro tunc changing the number of prior convictions 

from two to three. Both of these assignments of error arise 

from proceedings that were consolidated at trial with proceedings involving a separate DUI prosecution of Matit. The appeal 

from that separate prosecution was resolved by this court in 

State v. Bol,

32 and in that opinion, we concluded identical 

assignments of error were without merit. We reach the same 

conclusion here.

CONCLUSION

For the reasons discussed, we affirm the judgment of the 

district court.

Affirmed.

31 State v. Bol, 21 Neb. App. 931, ___ N.W.2d ___ (2014).

32 State v. Bol, supra note 30.