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STATE v. PESTER

Cite as 294 Neb. 995

State of Nebraska, appellee, v. 

Richard Pester, appellant.

___ N.W.2d ___

Filed October 14, 2016. No. S-15-530.

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal 

case from the county court, the district court acts as an intermediate 

court of appeals, and its review is limited to an examination of the 

record for error or abuse of discretion.

2. Courts: Judgments: Appeal and Error. Both the district court and a 

higher appellate court generally review appeals from the county court 

for error appearing on the record. When reviewing a judgment for 

errors appearing on the record, an appellate court’s inquiry is whether 

the decision conforms to the law, is supported by competent evidence, 

and is neither arbitrary, capricious, nor unreasonable. But an appellate court independently reviews questions of law in appeals from the 

county court.

3. Judgments: Pleadings: Appeal and Error. Regarding questions of 

law presented by a motion to quash, an appellate court is obligated to 

reach a conclusion independent of the determinations reached by the 

trial court.

4. 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, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment protection is a question of law that an appellate court reviews independently 

of the trial court’s determination.

5. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for 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 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/14/2016 09:09 AM CDT
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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.

6. Constitutional Law: Search and Seizure: Warrantless Searches: 

Blood, Breath, and Urine Tests: Arrests. A warrantless breath test 

administered as a search incident to a lawful arrest for driving under the 

influence does not violate the Fourth Amendment’s prohibition against 

unreasonable searches and seizures.

7. 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 

state.

8. Arrests: Search and Seizure: Probable Cause. An arrest constitutes a 

seizure that must be justified by probable cause to believe that a suspect 

has committed or is committing a crime.

9. Probable Cause: Words and Phrases. Probable cause is a flexible, 

commonsense standard that depends on the totality of the circumstances.

10. 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.

11. Criminal Law: Motor Vehicles: Words and Phrases. Under Neb. Rev. 

Stat. § 60-6,196 (Reissue 2010), being in “actual physical control” is 

distinct from “operating” a motor vehicle and is interpreted broadly to 

address the risk that a person not yet operating a motor vehicle might 

begin operating that vehicle with very little effort or delay.

Appeal from the District Court for Scotts Bluff County, 

Randall L. Lippstreu, Judge, on appeal thereto from the 

County Court for Scotts Bluff County, James M. Worden, 

Judge. Judgment of District Court affirmed.

Bell Island, of Island & Huff, P.C. L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Matthew A. Dodd, of Dodd Law Firm, P.C., and Bradley P. 

Roth, of McHenry Haszard Law, for amicus curiae National 

College of DUI Defense.
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Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Miller-Lerman, J.

NATURE OF CASE

Richard Pester appeals the decision of the district court for 

Scotts Bluff County in which the court affirmed his convictions following a jury trial in Scotts Bluff County Court for 

driving under the influence (DUI) and refusal to submit to 

a chemical test, both second offenses. The county court had 

overruled Pester’s motion to quash the charge of refusal to 

submit to a chemical test; Pester had argued that criminalizing 

refusal was a violation of the constitutional rights to be free 

of unreasonable searches and seizures. The county court had 

also overruled Pester’s motion to suppress evidence obtained 

as a result of his arrest; Pester had argued that there was not 

probable cause to support his arrest. On appeal, Pester assigns 

error to the district court’s affirmance of such rulings and to 

its conclusion that the evidence was sufficient to support his 

convictions. We affirm the district court’s order.

STATEMENT OF FACTS

Shortly after midnight on July 3, 2012, Scotts Bluff County 

Deputy Sheriff Kristopher Still found Pester slumped over 

the steering wheel of a vehicle parked in the lot of a farm 

implement dealership. The dealership was not open for business at the time. The lot of the dealership was bordered 

by three public highways, and there was no access to the 

lot other than by one of the three public highways. There 

were no gates or locks on the entrances, and the general 

public could drive onto the lot in order to enter the dealership building.

Still was driving past the back side of the business when 

he observed a quick flash of brake lights in the lot. Because 

of the time of night and the fact that the business was not 

open, Still pulled into the lot to check on the vehicle. Still 
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got out of his patrol car and walked up to the vehicle. As he 

approached the vehicle, Still observed a man, later identified as Pester, hunched over the steering wheel. When he got 

closer, Still observed a partially filled whiskey bottle and a 

partially filled beer can on the front passenger-side floorboard. 

He also observed that the keys were in the ignition, although 

the engine was not running.

Still knocked on the vehicle’s window several times and 

announced his presence before Pester responded. Still asked 

him to roll down a window so that they could talk. Still saw 

Pester turn the key in the ignition and roll down a power window. When Pester opened the window, Still smelled a strong 

odor of alcohol coming from the vehicle; he also observed 

that Pester had bloodshot eyes and a flushed face and that he 

slurred his speech. In response to Still’s questioning, Pester 

said that he had been drinking. He also said that he was not the 

owner of the property on which he was parked but that he was 

tired and had stopped there to sleep.

Still asked Pester to get out of the vehicle so that Still 

could administer field sobriety tests. After Pester got out of 

the vehicle, Still could smell an “[o]verwhelmingly strong” 

odor of alcohol on his breath. Pester initially refused to give 

a breath sample, but Still eventually was able to get Pester 

to perform a preliminary breath test, which showed a result 

of .126. After Pester failed field sobriety tests, Still arrested 

Pester for DUI.

Still transported Pester to the Scotts Bluff County correctional facility. Still began preparations to administer a postarrest chemical test of Pester’s breath, and he read a postarrest 

chemical test advisement form to Pester. When Still asked 

Pester to sign the form, Pester told Still that he would not submit to the chemical test of his breath.

The State charged Pester in county court with DUI, in violation of Neb. Rev. Stat. § 60-6,196 (Reissue 2010), and refusal 

to submit to a chemical test, in violation of Neb. Rev. Stat. 

§ 60-6,197 (Cum. Supp. 2014). Both were charged as second 
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offenses. Pester filed a motion to quash the charge of refusal 

to submit to a chemical test. Pester also filed a motion to suppress evidence obtained as a result of his arrest.

In the motion to quash, Pester asserted that the charge of 

refusal to submit to a chemical test pursuant to § 60-6,197 was 

“unconstitutional and in violation of the Fourth and Fourteenth 

Amendment[s] of the U.S. Constitution and [art. I,] § 7 of 

the Nebraska Constitution.” After a hearing in which Pester 

argued, inter alia, that § 60-6,197, criminalizing refusal of a 

chemical test, violated his constitutional right to refuse consent to a search, the county court overruled Pester’s motion 

to quash.

In the motion to suppress, Pester asserted that his arrest and 

search were not based on “reasonable and articulable suspicion that a crime had been committed or was about to be committed.” Still testified at a hearing on the motion to suppress. 

At the end of the hearing, Pester’s counsel stated that he did 

not take issue with the “stop or the initial contact” and that 

Still did not do anything improper by checking out the vehicle 

in the lot or the person sleeping inside the vehicle. Pester’s 

counsel argued instead that “this rises to the level of an illegal 

arrest for DUI, an illegal investigation for DUI, and doesn’t 

rise to the level of probable cause.” He generally asserted 

that because the area where Pester was parked was “not open 

to public access,” Pester could not have committed DUI, and 

that therefore it was improper for Still to arrest him for DUI 

and to require him to submit to a chemical test. In its order 

overruling Pester’s motion to suppress, the county court stated 

that the State presented evidence that Pester “was in a parking 

lot open to public access . . . , he was in control of a motor 

vehicle, the officer noted multiple signs of alcohol consumption, and [Pester] failed field sobriety tests.”

At the jury trial, the State presented evidence, including 

Still’s testimony. After the State rested, Pester moved for a 

“directed verdict.” He generally argued that the State failed 

to prove DUI, because it failed to present evidence that he 
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was on private property which was open to public access. 

The county court overruled Pester’s motion. Pester presented 

evidence in his defense, including his own testimony to the 

general effect that he did not begin drinking until after he 

had parked his vehicle in the lot and that he did not drive the 

vehicle after he began drinking. On cross-examination, Pester 

admitted that he was drunk when Still found him, that he was 

sitting in the driver’s seat with the keys in the ignition and 

was touching the steering wheel, and that he was sure that 

Still saw the brake lights on his vehicle illuminate when Still 

drove by the lot. After he rested his defense, Pester renewed 

his “motion for a directed verdict,” and the court again overruled the motion.

The jury found Pester guilty of DUI and refusal to submit 

to a chemical test. After an enhancement hearing, the county 

court found that both convictions were second offenses, and it 

later sentenced Pester on both convictions.

Pester appealed his convictions and sentences to the district court. He assigned as error the county court’s overruling 

of his motion to quash and his motion to suppress. He also 

asserted that there was insufficient evidence to support his 

convictions, that the county court improperly enhanced the 

refusal conviction, and that the county court imposed excessive sentences. The district court rejected Pester’s arguments 

regarding the motion to quash, the motion to suppress, insufficiency of the evidence, and enhancement. With regard to 

sentencing, the district court concluded that the sentence for 

DUI, second offense, was not excessive; however, the district court noted that the State conceded that the county court 

improperly imposed a sentence for the refusal conviction 

as a Class I misdemeanor rather than as a Class W misdemeanor. The district court therefore affirmed both convictions, the enhancement of both counts, and the sentence for 

DUI, but it remanded the cause for resentencing on the 

refusal conviction.

Pester appeals the district court’s order.
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ASSIGNMENTS OF ERROR

Pester claims, restated, that the district court erred when 

it (1) affirmed the order overruling his motion to quash the 

charge of refusal to submit to a chemical test, (2) affirmed the 

order overruling his motion to suppress, and (3) concluded 

that there was sufficient evidence to support his convictions. 

Pester does not assign error to the district court’s conclusions 

regarding enhancement and sentencing.

STANDARDS OF REVIEW

[1,2] In an appeal of a criminal case from the county court, 

the district court acts as an intermediate court of appeals, 

and its review is limited to an examination of the record for 

error or abuse of discretion. State v. Kleckner, 291 Neb. 539, 

867 N.W.2d 273 (2015). Both the district court and a higher 

appellate court generally review appeals from the county 

court for error appearing on the record. Id. When reviewing 

a judgment for errors appearing on the record, an appellate 

court’s inquiry is whether the decision conforms to the law, 

is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. But we independently 

review questions of law in appeals from the county court. 

See id.

[3] Regarding questions of law presented by a motion to 

quash, an appellate court is obligated to reach a conclusion 

independent of the determinations reached by the trial court. 

State v. Gozzola, 273 Neb. 309, 729 N.W.2d 87 (2007).

[4] 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, an appellate court reviews the trial 

court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protection is a question of 

law that an appellate court reviews independently of the trial 

court’s determination. State v. Milos, ante p. 375, 882 N.W.2d 

696 (2016).
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[5] In reviewing a criminal conviction for 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. State v. Gonzales, ante p. 627, 884 

N.W.2d 102 (2016).

ANALYSIS

The District Court Did Not Err When It 

Affirmed the Order of the County Court 

Overruling Pester’s Motion to Quash 

Charge of Refusing to Submit to a 

Chemical Test of His Breath.

Pester first claims that the district court erred when it 

affirmed the county court’s order overruling his motion to 

quash the charge of refusal to submit to a chemical test. Pester 

had argued that the charge of refusal to submit to a chemical test pursuant to § 60-6,197 was unconstitutional and in 

violation of his federal and state constitutional rights to be 

free of unreasonable searches and seizures. Because Pester 

was asked to give a breath sample, we conclude, based on the 

U.S. Supreme Court’s recent decision regarding warrantless 

breath tests, that the county court did not err when it overruled 

Pester’s motion to quash and that the district court did not err 

when it affirmed that order.

[6] As we noted in State v. Cornwell, ante p. 799, 884 

N.W.2d 722 (2016), the U.S. Supreme Court recently held in 

Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 

195 L. Ed. 2d 560 (2016), that a warrantless breath test 

administered as a search incident to a lawful arrest for DUI 

does not violate the Fourth Amendment’s prohibition against 
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unreasonable searches and seizures. The Court in Birchfield 

made a distinction between breath tests and blood tests and 

determined that breath tests do not implicate significant privacy concerns. The Court stated that because “the physical 

intrusion is negligible,” “breath tests are capable of revealing 

only one bit of information, the amount of alcohol in the subject’s breath,” and that the giving of a breath sample is “not 

an experience that is likely to cause any great enhancement in 

the embarrassment that is inherent in any arrest.” 136 S. Ct. 

at 2176-77. In the Birchfield opinion, the Court decided three 

cases, one of which involved a defendant who was criminally 

prosecuted pursuant to a statute similar to § 60-6,197 for refusing a warrantless breath test: State v. Bernard, 859 N.W.2d 

762 (Minn. 2015). With respect to the breath test case, the 

Court in Birchfield concluded that because the breath test was 

a permissible search incident to a lawful arrest for DUI, “the 

Fourth Amendment did not require officers to obtain a warrant 

prior to demanding the test, and [the defendant] had no right to 

refuse it.” 136 S. Ct. at 2186.

In Cornwell, we rejected the defendant’s facial challenge to 

§ 60-6,197. Based on Birchfield, we determined that warrantless breath tests do not run afoul of the Fourth Amendment, 

and we further determined that warrantless breath tests do not 

run counter to Neb. Const. art. I, § 7, which we interpreted 

to offer no more protection than that offered by the U.S. 

Constitution. The defendant in Cornwell had been directed 

to take a breath test; accordingly, we in effect concluded that 

there was a set of circumstances as to which § 60-6,197 was 

not unconstitutional and that therefore the defendant’s facial 

challenge failed.

Pester also made a challenge to the charge of refusal of a 

chemical test directed at § 60-6,197. Based on our holding in 

Cornwell, we conclude that Pester’s challenge similarly fails. 

Because Pester had no constitutional right to refuse the breath 

test, § 60-6,197 is not unconstitutional as to breath tests and it 

was not improper for the State to prosecute him for refusing 
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the breath test pursuant to § 60-6,197. For completeness, we 

note that both this case and Cornwell involved refusal of 

breath tests, and therefore we are not required to consider 

the validity of § 60-6,197 as it pertains to refusal of a blood 

test. Because Pester’s constitutional challenge to § 60-6,197 

and the corresponding charge of refusal of a chemical test of 

his breath is without merit, we conclude that the county court 

did not err when it overruled Pester’s motion to quash and 

that the district court did not err when it affirmed the county 

court’s order.

The District Court Did Not Err When It 

Affirmed the Order of the County Court 

Overruling Pester’s Motion to 

Suppress Evidence Obtained 

as Result of Arrest.

Following the Court’s filing of Birchfield, we ordered additional briefing regarding the application of Birchfield to the 

present case. In Birchfield, the Court specified that a warrantless breath test may be administered as a search incident to a 

lawful arrest for DUI. In his supplemental brief, Pester generally argues that it was improper to criminalize his refusal of the 

breath test, because he was not driving on a public highway, 

his arrest was not lawful, and therefore he was not required to 

submit to the test. Pester’s new arguments, although ostensibly 

directed to the motion to quash, are aimed at whether his arrest 

was lawful and are better considered with respect to Pester’s 

claim regarding the motion to suppress.

Pester claims that the district court erred when it affirmed 

the county court’s order overruling his motion to suppress evidence obtained as a result of his arrest for DUI. In the lower 

courts, Pester had argued that Still lacked probable cause to 

arrest him for DUI and to require him to give a breath sample 

in connection with that arrest. As explained below, because 

there was probable cause for Pester’s arrest for DUI, we 

conclude that the county court did not err when it overruled 
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Pester’s motion to suppress and that the district court did not 

err when it affirmed that order.

[7-10] 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 state. 

State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014). An 

arrest constitutes a seizure that must be justified by probable 

cause to believe that a suspect has committed or is committing a crime. Id. Probable cause is a flexible, commonsense 

standard that depends on the totality of the circumstances. Id. 

We determine whether probable cause existed under an objective standard of reasonableness, given the known facts and 

circumstances. Id.

Pursuant to § 60-6,196(1)(a), it is unlawful “to operate or 

be in the actual physical control of any motor vehicle . . . 

[w]hile under the influence of alcoholic liquor or of any drug.” 

In addition, Neb. Rev. Stat. § 60-6,108(1) (Reissue 2010) 

provides that § 60-6,196 “shall apply upon highways and anywhere throughout the state except private property which is 

not open to public access.” Although Pester does not dispute 

that Still had probable cause to think that he was “under the 

influence of alcoholic liquor,” as we understand it, he contends that he was not operating a motor vehicle and that, in 

any event, he was on private property, and therefore abiding 

by the law.

[11] To the extent that Pester contends that he was not 

“operating or in actual physical control of a motor vehicle,” 

we note that being in “actual physical control” is distinct from 

“operating” a motor vehicle and is interpreted broadly “to 

address the risk that a person not yet operating a motor vehicle 

might begin operating that vehicle with very little effort or 

delay.” State v. Rask, ante p. 612, 623, 883 N.W.2d 688, 697 

(2016). In the present case, Still testified that he saw the brake 

lights of Pester’s vehicle flash and that when he approached 

the vehicle, he saw Pester in the driver’s seat with the keys in 

the ignition. Still further testified that when he asked Pester 
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to roll down the window, Pester turned the key in the ignition 

and rolled down a power window. These observations gave 

Still probable cause to think that Pester could begin operating 

the vehicle with very little effort or delay and that therefore he 

was in actual physical control of the vehicle.

Pester’s main argument is that he was on “private property 

which is not open to public access” and that therefore Still did 

not have probable cause to think that § 60-6,196 applied. He 

asserts that the portion of the parking lot upon which he was 

parked was the private property of the farm implement dealership, and he claims that it was not open to public access. He 

further indicates that he was parked where customers of the 

dealership would not normally park and that the dealership 

was not open for business at the time Still found him. Pester 

directs our attention to the record wherein Still stated that part 

of the reason he investigated the presence of the vehicle in 

the lot at that time of night was to determine whether someone was trespassing. Pester argues that because he could not 

have been trespassing unless he was on private property, it is 

inconsistent to conclude both that a trespass may have occurred 

while also maintaining that Still had probable cause to think 

Pester was in a place with public access. We do not agree with 

Pester’s contention.

With regard to whether private property is open to public 

access, in State v. Prater, 268 Neb. 655, 658, 686 N.W.2d 896, 

898 (2004), when applying a city ordinance with language similar to § 60-6,108, we stated that “the phrase ‘open to public 

access’ means that the public has permission or the ability to 

enter.” In Prater, we determined that an apartment complex’s 

parking lot was open to public access because, even though a 

sign indicated that the lot was private, the lot was also used 

by maintenance workers and guests of residents. Similarly, in 

State v. Matit, 288 Neb. 163, 846 N.W.2d 232 (2014), we found 

probable cause for an arrest when the defendant’s vehicle was 

found parked on a paved area between the sidewalk and the 

street in front of an apartment complex, in part because the 
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arresting officer testified to his knowledge that both residents 

and nonresidents of the apartment complex used the area 

for parking.

In contrast to the foregoing cases, in State v. McCave, 282 

Neb. 500, 516, 805 N.W.2d 290, 307 (2011), we determined 

that a residential driveway was not open to public access, 

because it was open only to those who had express or implied 

permission of the owner, members of the general public had 

no right or implied permission to use the driveway, and members of the general public did not have “the ‘ability to enter’ 

the driveway in the same sense that a member of the public 

might drive through or use a private parking lot by custom.” 

We noted in McCave that the intent behind § 60-6,196 was “to 

prohibit intoxicated persons from operating or being in control 

of a vehicle even on private property if other motorists might 

access that property and be endangered by their conduct.” 282 

Neb. at 515, 805 N.W.2d at 307.

In the present case, Still testified that the lot where Pester 

parked was bordered by three public highways, that access to 

the lot was solely by one of three public highways, that there 

were no gates or locks on the entrances, and that the general 

public could drive onto the lot in order to enter the dealership. 

Despite Pester’s argument that customers would not normally 

park in this location, Still’s testimony shows that the general 

public was able to access the area; therefore, the area was 

“private property” “open to public access,” § 60-6,108(1), and 

the concerns of § 60-6,196 were implicated.

With respect to the private character of the location where 

Still encountered Pester, as the foregoing analysis illustrates, 

the location can be both private property giving rise to trespass 

concerns and “private property . . . open to public access,” 

§ 60-6,108(1), giving rise to concerns about “preserving the 

safety of . . . public highways.” Mackey v. Montrym, 443 U.S. 

1, 17, 99 S. Ct. 2612, 61 L. Ed. 2d 321 (1979). We find no 

inconsistency amongst Still’s initial concern for the protection of private property against trespass, his welfare check of 
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Pester’s vehicle curiously parked with a flash of brake lights 

in the middle of the night at a closed place of business, and 

his concern for the safety of other motorists. Therefore, a finding that Pester’s vehicle was on private property with public 

access is not inconsistent with Still’s justification for the initial investigation of Pester’s vehicle.

We conclude that the county court did not err when it determined Still had probable cause to arrest Pester for DUI and 

when it therefore overruled Pester’s motion to suppress and 

that the district court did not err when it affirmed the county 

court’s order.

The District Court Did Not Err When 

It Determined That the Evidence 

Was Sufficient to Support 

Pester’s Convictions.

Finally, Pester claims that the district court erred when it 

concluded that there was sufficient evidence to support his 

convictions. We conclude that the district court did not err in 

this regard.

Pester’s argument that the evidence was not sufficient to 

support his convictions mirrors his argument with regard to the 

motion to suppress—that is, that the evidence did not support 

a finding that he was on private property with public access. 

As discussed above, Still’s observations regarding the parking 

lot on which Pester was found support a finding that Pester 

was on private property with public access. Still’s testimony 

regarding his observations also provided sufficient evidence 

for the jury to find that Pester was on private property with 

public access, that Pester operated or was in actual physical control of his vehicle, and that he was guilty of DUI and 

refusal to submit to a chemical test. Viewing the evidence in 

the light most favorable to the prosecution, a rational jury 

could have found the essential elements of the crimes beyond 

a reasonable doubt. See State v. Gonzales, ante p. 627, 884 

N.W.2d 102 (2016). We conclude therefore that the district 
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court did not err when it determined that there was sufficient 

evidence to support Pester’s convictions.

CONCLUSION

We conclude that the county court did not err when it overruled Pester’s motion to quash and his motion to suppress and 

that therefore the district court did not err when it affirmed 

such rulings. We further conclude that the district court did not 

err when it determined that there was sufficient evidence to 

support Pester’s convictions. We therefore affirm the district 

court’s order in its entirety.

Affirmed.