State v. Botts

A-16-0985, State of Nebraska v. Kirk Botts (Appellant)

Lancaster County, District Court Judge Robert Otte

Attorney for Appellant:  Matthew K. Kosmicki

Attorney for Appellee:  Douglas J. Peterson, Austin N. Relph (Attorney General’s Office)

Criminal Action:  Possession of a deadly weapon by a prohibited person

     Jason Drager, an officer with Lincoln Police Department, witnessed Botts’ vehicle immobile and partially blocking traffic and decided to conduct a traffic stop. During this stop, Botts reportedly acted in a belligerent manner. Drager called for backup. When backup arrived, Officer Phillip Tran informed Drager that he had stopped Botts earlier for erratic driving and he noticed a slight odor of alcohol, and there was alcohol in the vehicle that had recently been purchased. Tran did not initiate a DUI investigation because he did not see enough signs to believe that Botts was intoxicated.

     Based on the information from Tran and his own observations, Drager began a DUI investigation. Botts continued to act belligerently, and was placed under arrest. Botts’ vehicle was impounded and an inventory done. In that search, a machete was found. Botts indicated that he used it for his business. It was later determined that Botts had a felony conviction.

     A jury found Botts guilty of possession of a deadly weapon by a prohibited person and the trial court sentenced him to one year imprisonment and one year post-release supervision.

     On appeal, Botts argues that the court erred in admitting the testimony of police officers regarding the first traffic stop and about his demeanor and comments he made during the stop because they were irrelevant. Botts also argues that jury instruction #4, which provided that “the presence in a motor vehicle of a knife shall be prima facie evidence that it is in possession of all persons occupying such motor vehicle” because such instruction violated Botts’ right to the presumption of innocence. Finally, Botts argues there was insufficient evidence to support a guilty verdict.

     This is the second time this appeal is before this court. The first time Botts’ appeal was before us, we addressed his argument that his motion to suppress should have been granted. We concluded that his arrest was made without probable cause and that the resulting inventory search was invalid, and reversed Botts’ conviction. The Nebraska Supreme Court subsequently granted the State’s petition for further review, and reversed our decision in regard to the motion to suppress and remanded the appeal back to us to address Botts’ other assignments of error. See State v. Botts, 299 Neb. 806, 910 N.W.2d 779 (2018).