Background
Tahashaye T. Canty-Neely was charged with driving under the influence of alcoholic liquor, possession of cocaine, refusal to submit to chemical testing, and driving during a period of revocation. Before trial, the State dismissed the revocation count because it could not confirm that his license was revoked when the alleged offense occurred.
At trial, an officer testified that Canty-Neely smelled of alcohol, had bloodshot, hazy, and glossy eyes, and displayed all six indicators on a horizontal gaze nystagmus test. Canty-Neely refused preliminary and post-arrest breath testing after receiving and signing a chemical-test advisement. An inventory search of his vehicle uncovered a partially full open tequila bottle and cocaine between the driver’s seat and center console. The jury convicted him on the three remaining counts, and the district court imposed a combined prison term of 4 to 7 years after enhancing the DUI and refusal offenses based on prior convictions.
Representing himself at trial and on appeal, Canty-Neely challenged the denial of his directed-verdict motion, alleged ineffective assistance of counsel concerning the suppression proceedings, and claimed prosecutorial misconduct arising from the State’s pursuit of the revocation charge until shortly before trial.
The Court’s Holding
The Nebraska Court of Appeals affirmed. Canty-Neely waived appellate review of the denial of his directed-verdict motion by presenting defense evidence after the motion was denied, but he could still challenge the sufficiency of the evidence. Viewed in the State’s favor, the officer’s observations, the six HGN indicators, and the open alcohol bottle sufficiently supported the DUI conviction despite the absence of erratic driving or additional standardized field sobriety tests.
The court declined to address ineffective assistance because Canty-Neely’s assignment of error did not identify the specific conduct alleged to constitute deficient performance. Reviewing the unpreserved prosecutorial-misconduct claim for plain error, the court found no misconduct because the State dismissed the revocation count before trial and never presented it to the jury, so the prosecutor’s conduct did not mislead or unduly influence the jury.
Key Takeaways
- A defendant who presents evidence after losing a directed-verdict motion waives review of that ruling but may still challenge the sufficiency of the evidence supporting the conviction.
- An ineffective-assistance assignment on direct appeal must identify the specific conduct alleged to constitute deficient performance; details supplied only in the argument section are insufficient.
- Dismissing an unsupported charge before it reaches the jury did not constitute prosecutorial misconduct or plain error on this record.
Why It Matters
The decision illustrates the procedural precision required in Nebraska criminal appeals, particularly for preserving directed-verdict challenges and assigning ineffective-assistance claims. It also confirms that officer observations and field-sobriety evidence may support a DUI conviction without evidence of erratic driving.
This memorandum opinion is not designated for permanent publication and may be cited only as permitted by Neb. Ct. R. App. P. § 2-102(E).