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State of Nebraska, appellee, v. 

Jeffrey Gilliam, appellant.

___ N.W.2d ___

Filed February 12, 2016. No. S-15-373.

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

Appeal and Error. In reviewing a trial court’s ruling on a motion to suppress evidence based on a claimed violation of the Fourth Amendment, 

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

historical facts, an appellate court reviews the trial court’s findings for 

clear error. But whether those facts trigger or violate Fourth Amendment 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an 

independent conclusion irrespective of the determination made by the 

court below.

3. Prior Convictions: Appeal and Error. On a claim of insufficiency of 

the evidence, an appellate court, viewing and construing the evidence 

most favorably to the State, will not set aside a finding of a previous 

conviction for the purposes of sentence enhancement supported by relevant evidence.

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

the U.S. Constitution and article I, § 7, of the Nebraska Constitution 

guarantee against unreasonable searches and seizures.

5. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit 

of an illegal search or seizure is inadmissible in a state prosecution and 

must be excluded.

6. Constitutional Law: Police Officers and Sheriffs: Search and 

Seizure: Appeal and Error. To determine whether an encounter 

between an officer and a citizen reaches the level of a seizure under 

the Fourth Amendment to the U.S. Constitution, an appellate court 

employs the analysis set forth in State v. Van Ackeren, 242 Neb. 479, 

Nebraska Supreme Court Online Library

www.nebraska.gov/courts/epub/

02/12/2016 08:24 AM CST
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495 N.W.2d 630 (1993), which describes the three levels, or tiers, of 

police-citizen encounters.

7. Constitutional Law: Police Officers and Sheriffs: Search and 

Seizure. A tier-one police-citizen encounter involves the voluntary 

cooperation of the citizen elicited through noncoercive questioning and 

does not involve any restraint of liberty of the citizen. Because tier-one 

encounters do not rise to the level of a seizure, they are outside the 

realm of Fourth Amendment protection.

8. Police Officers and Sheriffs: Search and Seizure. A tier-two policecitizen encounter constitutes an investigatory stop as defined by Terry 

v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Such 

an encounter involves a brief, nonintrusive detention during a frisk for 

weapons or preliminary questioning.

9. Police Officers and Sheriffs: Search and Seizure: Arrests. A tierthree police-citizen encounter constitutes an arrest. An arrest involves a 

highly intrusive or lengthy search or detention.

10. Constitutional Law: Police Officers and Sheriffs: Search and 

Seizure. Tier-two and tier-three police-citizen encounters are seizures 

sufficient to invoke the protections of the Fourth Amendment to the 

U.S. Constitution.

11. Constitutional Law: Search and Seizure. A seizure in the Fourth 

Amendment context occurs only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he 

or she was not free to leave.

12. ____: ____. In addition to situations where an officer directly tells a suspect that he or she is not free to go, circumstances indicative of a seizure 

may include the threatening presence of several officers, the display of a 

weapon by an officer, some physical touching of the citizen’s person, or 

the use of language or tone of voice indicating the compliance with the 

officer’s request might be compelled.

13. Constitutional Law: Police Officers and Sheriffs: Search and 

Seizure. A police officer’s merely questioning an individual in a public 

place, such as asking for identification, is not a seizure subject to Fourth 

Amendment protections, so long as the questioning is carried on without 

interrupting or restraining the person’s movement.

14. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

15. Statutes. It is not within the province of a court to read a meaning into 

a statute that is not warranted by the legislative language.
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16. Drunk Driving: Prior Convictions: Words and Phrases. For the purposes of Neb. Rev. Stat. § 60-6,197.02 (Cum. Supp. 2014), the word 

“conviction” means a finding of guilt by a jury or a judge, or a judge’s 

acceptance of a plea of guilty or no contest.

17. Sentences: Prior Convictions: Proof. In order to prove a prior conviction for purposes of sentence enhancement, the State has the burden to 

prove the fact of prior convictions by the greater weight of the evidence, 

and the trial court determines the fact of prior convictions based upon 

the greater weight of the evidence standard.

18. Trial: Evidence: Proof. The greater weight of the evidence requires 

proof which leads the trier of fact to find that the existence of the contested fact is more likely true than not true.

Appeal from the District Court for Lancaster County: 

Stephanie F. Stacy, Judge. Affirmed.

Mark E. Rappl for appellant.

Douglas J. Peterson, Attorney General, and Kimberly A. 

Klein for appellee.

Heavican, C.J., Wright, Connolly, Miller-Lerman, and

Cassel, JJ.

Cassel, J.

I. INTRODUCTION

In this direct appeal, Jeffrey Gilliam challenges the district 

court’s denial of his pretrial motion to suppress evidence and 

the court’s use of a conviction from a Missouri court to enhance 

his sentence for driving under the influence of alcohol (DUI). 

We reject Gilliam’s first argument, because his initial encounter with police fell outside the realm of the Fourth Amendment. 

And his argument regarding enhancement fails, because a 

suspended imposition of sentence in the prior Missouri case 

qualifies as a “prior conviction” under the pertinent statute. We 

affirm his conviction and sentence.

II. BACKGROUND

Gilliam was arrested for DUI after an encounter with a 

police officer. An information filed in the district court for 
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Lancaster County charged Gilliam with DUI and alleged that 

Gilliam had two prior convictions.

1. Motion to Suppress

Gilliam filed a pretrial motion to suppress all evidence gathered as a result of his encounter with the police officer. He 

argued that he was seized and that his seizure was unsupported 

by reasonable suspicion.

(a) Hearing

Officer Brock Wagner of the Lincoln Police Department 

testified at the suppression hearing. Wagner testified that on 

May 26, 2013, at approximately 5:39 a.m., he received a report 

from police dispatch that a white Dodge Ram, license plate 

No. SYD 417, was parked partially on the curb and partially 

on the street in the area of Ninth and A Streets. Wagner drove 

to the area in his marked patrol unit to investigate, but he did 

not see the reported Dodge Ram when he arrived. He turned 

onto a different street, where he saw the reported Dodge Ram 

parked legally on the side of the street. It was running, and its 

lights were on.

Wagner pulled behind the Dodge Ram and activated his 

patrol unit’s overhead lights. He exited his patrol unit, knocked 

on the window, and directed Gilliam, who was in the driver’s 

seat, to roll down the window, and Gilliam complied. Wagner 

observed that Gilliam had a strong odor of alcohol on his 

breath; watery, bloodshot eyes; and slurred speech. Wagner 

asked to see Gilliam’s driver’s license, and Gilliam produced 

it. Wagner then conducted a DUI investigation and arrested 

Gilliam for DUI. Wagner testified that he was dressed in his 

uniform, wearing his badge, and carrying a gun when his 

encounter with Gilliam occurred.

(b) Order

At the end of the suppression hearing, the district court 

took the matter under advisement. It later issued a written 

order overruling Gilliam’s motion to suppress. It concluded 
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that Gilliam’s encounter with Wagner did not begin as a seizure; rather, it began as a consensual or “first-tier” encounter 

that did not implicate Fourth Amendment protections. The 

district court further concluded that Wagner had reasonable 

suspicion to expand his initial contact with Gilliam into a 

DUI investigation.

The district court rejected Gilliam’s argument that “‘a person in a parked vehicle is seized at the moment when the officer activates the emergency lights.’” It explained that “there 

are a myriad of circumstances under which police are authorized to use overhead lights—many of which have nothing 

whatsoever to do with a seizure.” And it observed that adopting 

Gilliam’s approach “would have the practical effect of making 

every police-citizen contact a seizure once overhead lights are 

activated, regardless of the other circumstances surrounding 

the contact.”

Finally, the district court concluded that Wagner obtained 

reasonable suspicion to extend the encounter into a DUI investigation when Gilliam rolled down his window. At that point, 

Wagner observed the strong odor of alcohol and Gilliam’s 

bloodshot eyes and slurred speech, which provided reasonable 

suspicion of criminal activity.

2. Enhancement

Gilliam proceeded to trial and was convicted by a jury of 

DUI. An enhancement hearing was held, and the State offered 

two exhibits: a certified copy of a prior DUI conviction from 

Nebraska and a certified copy of a document from Missouri 

titled “JUDGMENT OF COURT UPON PLEA OF GUILTY” 

(Missouri judgment). The Missouri judgment indicated that 

in 2004, Gilliam appeared with an attorney and pled guilty 

to driving while intoxicated (DWI) in a Missouri court. It 

showed that the judge found a factual basis for Gilliam’s plea 

of guilty, approved it, and accepted it. But it also showed that 

the imposition of his sentence was suspended and that he was 

placed on probation for 2 years.
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Gilliam did not object to the receipt of the Missouri judgment, but argued that because the suspended imposition of a 

sentence is not considered a final judgment1 or a conviction2

in Missouri, it cannot be considered a prior conviction for the 

purposes of sentence enhancement under Nebraska law. He 

asked the court to take judicial notice of the Missouri sentencing statute that authorizes courts to suspend the imposition of a sentence,3

 but he otherwise presented no evidence at 

the hearing.

The district court concluded that the State had met its initial 

burden of proving Gilliam’s prior Missouri DWI conviction 

by a preponderance of the evidence. It determined that the 

Missouri judgment “reflects, with requisite trustworthiness, the 

Missouri court’s acceptance of [Gilliam’s] guilty plea to the 

charge of DWI and the court’s act of rendering judgment and 

disposition thereon.” It also found that the Missouri conviction 

was counseled and that the offense would have been a violation 

of Nebraska’s DUI laws.

The district court noted that once the State had met its burden, the burden shifted to Gilliam to introduce evidence “rebutting the statutory presumption that the Missouri [judgment] 

is valid for purposes of enhancement.” Gilliam presented no 

evidence. Accordingly, the district court found that Gilliam was 

convicted of DUI or the equivalent offense on two prior occasions. And it concluded that the prior convictions were valid 

for the purposes of enhancement. The district court sentenced 

Gilliam to probation for a period of 36 months. The terms 

of the probation included a 60-day jail sentence, a fine, and 

other restrictions.

1 See Yale v. City of Independence, 846 S.W.2d 193 (Mo. 1993).

2 Id.

3 Mo. Rev. Stat. § 557.011 (West Cum. Supp. 2016).
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Gilliam filed a timely appeal, which we moved to our docket 

in order to resolve the enhancement issue, which is an issue of 

first impression.4

III. ASSIGNMENTS OF ERROR

Gilliam assigns that the district court erred in (1) overruling 

his motion to suppress and (2) concluding that his DWI conviction from the State of Missouri was a valid prior conviction for 

enhancement purposes.

IV. STANDARD OF REVIEW

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

Amendment, we apply a two-part standard of review.5 Regarding historical facts, we review the trial court’s findings for 

clear error.6 But whether those facts trigger or violate Fourth 

Amendment protections is a question of law that we review 

independently of the trial court’s determination.7

[2] Statutory interpretation presents a question of law, for 

which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the 

court below.8

[3] On a claim of insufficiency of the evidence, an appellate 

court, viewing and construing the evidence most favorably to 

the State, will not set aside a finding of a previous conviction 

for the purposes of sentence enhancement supported by relevant evidence.9

4 See Neb. Rev. Stat. § 24-1106(3) (Reissue 2008).

5 State v. Modlin, 291 Neb. 660, 867 N.W.2d 609 (2015).

6 Id.

7 Id.

8 State v. Taylor, 286 Neb. 966, 840 N.W.2d 526 (2013).

9 Id.
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V. ANALYSIS

1. Seizure

Gilliam claims that the district court erred when it overruled 

his motion to suppress the evidence obtained as a result of his 

encounter with Wagner. He argues that Wagner’s activation 

of his patrol unit’s overhead lights was a show of authority 

that transformed the initial encounter into a seizure for Fourth 

Amendment purposes. We disagree.

[4,5] The Fourth Amendment to the U.S. Constitution and 

article I, § 7, of the Nebraska Constitution guarantee against 

unreasonable searches and seizures.10 Evidence obtained as the 

fruit of an illegal search or seizure is inadmissible in a state 

prosecution and must be excluded.11

[6] To determine whether an encounter between an officer and a citizen reaches the level of a seizure under the 

Fourth Amendment to the U.S. Constitution, an appellate 

court employs the analysis set forth in State v. Van Ackeren.

12

Van Ackeren describes three levels, or tiers, of police-citizen 

encounters.13

[7] The first tier does not implicate the Fourth Amendment. 

A tier-one police-citizen encounter involves the voluntary cooperation of the citizen elicited through noncoercive 

questioning and does not involve any restraint of liberty 

of the citizen.14 Because tier-one encounters do not rise to 

the level of a seizure, they are outside the realm of Fourth 

Amendment protection.15

[8-10] However, second or third tier encounters require 

constitutional analysis. A tier-two police-citizen encounter 

10 State v. Modlin, supra note 5.

11 State v. Wells, 290 Neb. 186, 859 N.W.2d 316 (2015).

12 State v. Van Ackeren, 242 Neb. 479, 495 N.W.2d 630 (1993).

13 See State v. Wells, supra note 11.

14 Id.

15 See State v. Hedgcock, 277 Neb. 805, 765 N.W.2d 469 (2009).
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constitutes an investigatory stop as defined by Terry v. Ohio.

16

Such an encounter involves a brief, nonintrusive detention 

during a frisk for weapons or preliminary questioning.17 A tierthree police-citizen encounter constitutes an arrest.18 An arrest 

involves a highly intrusive or lengthy search or detention.19

Tier-two and tier-three police-citizen encounters are seizures 

sufficient to invoke the protections of the Fourth Amendment 

to the U.S. Constitution.20

[11-13] A seizure in the Fourth Amendment context occurs 

only if, in view of all the circumstances surrounding the 

incident, a reasonable person would have believed that he or 

she was not free to leave.21 In addition to situations where an 

officer directly tells a suspect that he or she is not free to go, 

circumstances indicative of a seizure may include the threatening presence of several officers, the display of a weapon by 

an officer, some physical touching of the citizen’s person, or 

the use of language or tone of voice indicating the compliance 

with the officer’s request might be compelled.22 We have concluded that a police officer’s merely questioning an individual 

in a public place, such as asking for identification, is not a 

seizure subject to Fourth Amendment protections, so long as 

the questioning is carried on without interrupting or restraining 

the person’s movement.23

16 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). See 

State v. Wells, supra note 11.

17 State v. Wells, supra note 11.

18 Id.

19 Id.

20 Id.

21 State v. Hedgcock, supra note 15.

22 Id. See United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. 

Ed. 2d 497 (1980).

23 Id. See State v. Twohig, 238 Neb. 92, 469 N.W.2d 344 (1991).
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The circumstances of the instant case reveal that Wagner 

was merely questioning Gilliam in a public place. Wagner 

contacted Gilliam while he was voluntarily parked in a public 

place in the early morning hours. He approached Gilliam’s 

vehicle alone and on foot. He knocked on the window and 

asked to see Gilliam’s identification. There is no evidence that 

Wagner displayed his weapon, used a forceful tone of voice, 

touched Gilliam, or otherwise told Gilliam that he was not free 

to leave.

Gilliam points to Wagner’s activation of his patrol unit’s 

overhead lights as evidence that he was not free to leave. But 

as the district court observed, there are a variety of reasons 

that officers may activate their overhead lights. And as the 

U.S. Court of Appeals for the Seventh Circuit observed in a 

case with circumstances similar to this one, one reason officers activate their overhead lights before approaching a parked 

vehicle is “to alert the car’s occupants that they [are] going 

to approach the vehicle.”24 In that similar case, the Seventh 

Circuit court concluded that where a vehicle was parked and 

running at night, overhead lights alone were not sufficient to 

create a seizure. It reasoned that “[w]ithout identifying themselves appropriately to the car’s occupants, the officers would 

have put themselves at risk in approaching a parked car late 

at night.”25

Under the circumstances of the instant case, the overhead 

lights, standing alone, would not have caused a reasonable 

person to believe that he was not free to leave. A reasonable 

person, parked on the side of the street at night or in the early 

morning hours, would understand that there are a variety of 

reasons an officer may activate his overhead lights before 

approaching him, including officer safety. Because none of 

the other circumstances would have made a reasonable person believe that he was not free to leave, we conclude that 

24 U.S. v. Clements, 522 F.3d 790, 794 (7th Cir. 2008).

25 Id. at 794-95.
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Gilliam’s encounter with Wagner began as a tier-one encounter. 

Thus, he was not seized when Wagner approached him, and the 

Fourth Amendment was not implicated.

Gilliam does not challenge the district court’s determination 

that Wagner obtained reasonable suspicion to expand the initial 

encounter into a DUI investigation when Gilliam opened his 

window. Therefore, we conclude that the district court did not 

err in denying Gilliam’s motion to suppress.

2. Enhancement

Gilliam claims that the district court erred in using his 

Missouri DWI conviction to enhance his sentence. He argues 

that the Missouri judgment does not constitute evidence of 

a prior conviction for enhancement purposes, because the 

Missouri Supreme Court has declared that a suspended imposition of sentence does not constitute a “conviction” in Missouri.26

He also argues that the State did not show that his Missouri 

DWI conviction was final.

Neb. Rev. Stat. § 60-6,197.03 (Cum. Supp. 2012) delineates the penalties for DUI convictions. Those penalties 

include enhanced sentences for offenders who have had prior 

convictions.

The term “prior conviction” is defined by statute.27 It provides that when a sentence is being imposed for a violation of 

Nebraska’s general prohibition against DUI,28 prior conviction 

means “[a]ny conviction under a law of another state if, at the 

time of the conviction under the law of such other state, the 

offense for which the person was convicted would have been 

a violation of” one of Nebraska’s DUI statutes.29 It does not 

define the word “conviction.”

26 See Yale v. City of Independence, supra note 1.

27 Neb. Rev. Stat. § 60-6,197.02 (Cum. Supp. 2014).

28 Neb. Rev. Stat. § 60-6,196 (Reissue 2010).

29 § 60-6,197.02(1)(a)(i)(C).
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[14,15] Before we can review the district court’s finding that 

the State proved Gilliam’s prior conviction in Missouri, we 

must first determine what the word “conviction” means within 

the phrase, “[a]ny conviction under a law of another state.” 

Statutory language is to be given its plain and ordinary meaning, and this court will not resort to interpretation to ascertain 

the meaning of statutory words which are plain, direct, and 

unambiguous.30 It is not within the province of this court to 

read a meaning into a statute that is not warranted by the legislative language.31

We often turn to dictionaries to ascertain a word’s plain and 

ordinary meaning.32 Black’s Law Dictionary defines “conviction” as “[t]he act or process of judicially finding someone 

guilty of a crime; the state of having been proved guilty . . 

. .”33 Webster’s Third New International Dictionary defines 

“conviction” as “the act of proving, finding, or adjudging 

a person guilty of an offense or crime.”34 These definitions 

square with our understanding of “conviction” in prior cases. 

We have consistently stated that “[a] plea of guilty accepted 

by the court is a conviction or the equivalent of a conviction 

of the highest order. The effect of it is to authorize the imposition of the sentence prescribed by law on a verdict of guilty 

30 State v. Taylor, supra note 8.

31 Id.

32 See, e.g., Stick v. City of Omaha, 289 Neb. 752, 857 N.W.2d 561 (2015) 

(citing Black’s Law Dictionary for plain meaning of “public place”);

Rodehorst Bros. v. City of Norfolk Bd. of Adjustment, 287 Neb. 779, 844 

N.W.2d 755 (2014) (citing Webster’s Dictionary for plain meaning of 

“discontinue”); Mathews v. Mathews, 267 Neb. 604, 676 N.W.2d 42 (2004) 

(citing several dictionaries for plain meaning of “indigent”); Payless Bldg. 

Ctr. v. Wilmoth, 254 Neb. 998, 581 N.W.2d 420 (1998) (citing Webster’s 

Third New International Dictionary for plain meaning of “individual”).

33 Black’s Law Dictionary 408 (10th ed. 2014).

34 Webster’s Third New International Dictionary of the English Language, 

Unabridged 499 (1993).
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of the crime charged.”35 We have also stated that “a plea of no 

contest, when voluntarily entered and accepted by the court, 

is a conviction, empowering the court to impose the sentence 

authorized by statute.”36

[16] We apply the plain and ordinary meaning of the word 

“conviction” to the statute before us. For the purposes of 

§ 60-6,197.02, the word “conviction” means a finding of guilt 

by a jury or a judge, or a judge’s acceptance of a plea of guilty 

or no contest.

[17,18] We now review the district court’s finding that the 

State had met its burden of proving Gilliam’s prior conviction. 

In order to prove a prior conviction for purposes of sentence 

enhancement, the State has the burden to prove the fact of 

prior convictions by the greater weight of the evidence, and 

the trial court determines the fact of prior convictions based 

upon the greater weight of the evidence standard.37 The greater 

weight of the evidence requires proof which leads the trier 

of fact to find that the existence of the contested fact is more 

likely true than not true.38 On an appeal of a sentence enhancement hearing, we view and construe the evidence most favorably to the State.39

Regarding the process by which the prior conviction must 

be proved, § 60-6,197.02 provides: “The prosecutor shall 

present as evidence for purposes of sentence enhancement a 

35 Stewart v. Ress, 164 Neb. 876, 881, 83 N.W.2d 901, 904 (1957). See, 

also, State v. Hall, 268 Neb. 91, 679 N.W.2d 760 (2004); State v. Ondrak, 

212 Neb. 840, 326 N.W.2d 188 (1982); Taylor v. State, 159 Neb. 210, 66 

N.W.2d 514 (1954). Cf. State v. Hess, 261 Neb. 368, 622 N.W.2d 891 

(2001).

36 State v. McKain, 230 Neb. 817, 818, 434 N.W.2d 10, 11 (1989).

37 See State v. Taylor, supra note 8. See, also, Flores v. Flores-Guerrero, 

290 Neb. 248, 253, 859 N.W.2d 578, 583 (2015) (“preponderance of the 

evidence” is equivalent of “‘“greater weight”’ of the evidence”).

38 See State v. Taylor, supra note 8.

39 Id.
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court-certified copy or an authenticated copy of a prior conviction in another state. The court-certified or authenticated 

copy shall be prima facie evidence of such prior conviction.”40

That section also directs that once the prosecutor has presented 

prima facie evidence, “[t]he convicted person shall be given 

the opportunity to review the record of his or her prior convictions, bring mitigating facts to the attention of the court prior 

to sentencing, and make objections on the record regarding the 

validity of such prior convictions.”41

We conclude that the district court’s finding was supported 

by relevant evidence. The State introduced the Missouri judgment, which indicates that Gilliam pled “guilty as charged” 

to DWI in Missouri and that the judge accepted his plea. 

Therefore, the Missouri judgment constitutes a certified copy 

of a prior conviction in another state and is prima facie evidence of the prior conviction. And Gilliam does not claim that 

the Missouri conviction would not have been a violation of 

Nebraska’s DUI laws. Thus, the State met its burden, and the 

district court did not err in enhancing Gilliam’s sentence.

Gilliam’s two arguments that we should reach a contrary 

conclusion are meritless. First, Gilliam argues that we must 

analyze Missouri law to determine whether the Missouri judgment constitutes a “conviction under a law of another state” 

under § 60-6,197.02. We disagree. The meaning of the phrase 

is plain—it requires a finding of guilt or an acceptance of a 

guilty or no contest plea under a law of another state. That is 

satisfied here. The plain terms of the statute do not require an 

analysis of Missouri law.

And even if we were to examine Missouri law, we would 

reach the same conclusion. In a Missouri Supreme Court 

decision,42 the court addressed the term “conviction” as used in 

40 § 60-6,197.02(2).

41 § 60-6,197.02(3).

42 Yale v. City of Independence, supra note 1.
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a municipality’s employee manual. It was in that context that 

the court concluded that a suspended imposition of sentence 

was not a conviction. But the court observed that the Missouri 

Legislature had provided otherwise in specific instances. And, 

particularly pertinent here, the court recognized that a specific 

Missouri statute43 treated a plea of guilty, finding of guilt, or 

disposition of suspended imposition of sentence as a “conviction, or ‘final disposition,’ in alcohol or drug related driving offenses.”44

A change in Missouri’s statutory framework for enhancement of intoxication-related traffic offenses, enacted after 

the date of Gilliam’s conviction, does not change the result. 

Although Missouri no longer looks to a “conviction” in 

intoxication-related traffic offenses for purposes of enhancement, it still treats a suspended imposition of sentence as an 

event qualifying as a necessary predicate for enhancement. 

The Missouri Legislature treated a suspended imposition of 

sentence in an intoxication-related traffic offense as a “conviction” sufficient to enhance an offender’s sentence for a 

subsequent intoxication-related traffic offense until 2008. In 

2008, it changed the terminology of its enhancement statute.45

It removed the word “conviction” and substituted definitions 

employing the phrases “has pleaded guilty to or has been 

found guilty of” and “intoxication-related traffic offenses.”46

But despite the changes in nomenclature, the current Missouri 

statute states that a “suspended imposition of sentence” is 

to be treated as a “prior plea of guilty or finding of guilt.”47

Thus, the effect remains the same—Missouri considers a 

suspended imposition of sentence for an intoxication-related 

43 Mo. Rev. Stat. § 577.051.1 (1986).

44 Yale v. City of Independence, supra note 1, 846 S.W.2d at 195.

45 See H.B. 1715, 94th Gen. Assemb., 2d Reg. Sess. (Mo. 2008).

46 Mo. Rev. Stat. § 577.023 (West 2011).

47 § 577.023(16).
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traffic offense sufficient to enhance a sentence for a subsequent intoxication-related traffic offense. And, ultimately, 

the question is not whether Missouri would characterize the 

2004 event as a “conviction” under its current enhancement 

statute, but whether it qualifies as a prior conviction under 

the Nebraska statute. We have already explained why it does, 

and the change in Missouri’s terminology does not affect 

our conclusion.

Second, Gilliam claims that the State was required to establish that the Missouri judgment was a final conviction. In this 

argument, he does not rely upon Missouri law, which, as we 

have noted, does not support his assertion. Rather, he recites 

that in Nebraska, a judgment is not final until a convicted 

person is sentenced.48 And he argues that because the Missouri 

judgment indicates that his sentence was suspended, the State 

did not sufficiently prove a final conviction.

Gilliam relies on State v. Estes.

49 There, we cited Nelson 

v. State50 for the following rule: “To constitute a basis for 

enhancement of punishment on a charge of a second or subsequent offense, the prior conviction relied upon for enhancement must be a final conviction.”51 In Nelson, we said: 

“[W]here the evidence of one of the former violations charged 

shows that proceedings in error are pending and undisposed 

of which might result in a reversal of such judgment, such 

evidence is insufficient and incompetent to establish a former conviction.”52

The rule pronounced in Nelson and repeated in Estes

applies when the evidence presented by the State shows that 

a prior conviction is pending on appeal. The record in the 

48 See State v. Kaba, 210 Neb. 503, 315 N.W.2d 456 (1982).

49 State v. Estes, 238 Neb. 692, 472 N.W.2d 214 (1991).

50 Nelson v. State, 116 Neb. 219, 216 N.W.2d 556 (1927). 

51 State v. Estes, supra note 49, 238 Neb. at 695, 472 N.W.2d at 216.

52 Nelson v. State, supra note 50, 116 Neb. at 221, 216 N.W.2d at 557.
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Nebraska Advance Sheets

292 Nebraska Reports

STATE v. GILLIAM

Cite as 292 Neb. 770

instant case does not indicate that an appeal is pending, and 

Gilliam does not contend that he has appealed the Missouri 

conviction. Thus, Nelson and Estes are inapplicable. The 

terms of § 60-6,197.02 do not require the prosecution to 

prove that an appeal is not pending or that the conviction is 

otherwise final. We will not read into a statute requirements 

that are not there.

VI. CONCLUSION

We conclude that the district court did not err by overruling 

Gilliam’s motion to suppress. Further, we conclude that the 

district court did not err in using Gilliam’s Missouri conviction 

to enhance his sentence. Therefore, we affirm.

Affirmed.

Stacy, J., not participating.