State v. Sollman , 29 Neb. Ct. App. 356 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/19/2021 09:07 AM CST
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Nebraska Court of Appeals Advance Sheets
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STATE v. SOLLMAN
Cite as 29 Neb. App. 356State of Nebraska, appellee, v.
Abram K. Sollman, appellant.
___ N.W.2d ___
Filed January 12, 2021. No. A-20-172.
1. Motions to Dismiss: Directed Verdict. A motion to dismiss at the
close of all the evidence has the same legal effect as a motion for
directed verdict.
2. Criminal Law: Motions to Dismiss: Evidence. In determining whether
a criminal defendant’s motion to dismiss for insufficient evidence should
be sustained, the State is entitled to have all of its relevant evidence
accepted as true, the benefit of every inference that can reasonably
be drawn from the evidence, and every controverted fact resolved in
its favor.
3. Criminal Law: Directed Verdict. In a criminal case, a court can direct
a verdict only when there is a complete failure of evidence to establish
an essential element of the crime charged or the evidence is so doubtful
in character, lacking probative value, that a finding of guilt based on
such evidence cannot be sustained.
4. Rules of Evidence: Hearsay: Appeal and Error. Excluding rulings
under the residual hearsay exception, an appellate court reviews the
factual findings underpinning a trial court’s hearsay ruling for clear
error and reviews de novo the court’s ultimate determination whether the
court admitted evidence over a hearsay objection or excluded evidence
on hearsay grounds.
5. Constitutional Law: Motions to Suppress: Confessions: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a state-
ment based on its claimed involuntariness, including claims that law
enforcement procured it by violating the safeguards established by
the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1966), 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. Whether those facts
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STATE v. SOLLMAN
Cite as 29 Neb. App. 356meet constitutional standards, however, is a question of law, which an
appellate court reviews independently of the trial court’s determination.
6. Judgments: Trial: Evidence: Motions for New Trial: Sentences:
Appeal and Error. Evidentiary questions committed to the discretion
of the trial judge, orders denying a motion for new trial, and claims of
excessive sentencing are all reviewed for abuse of discretion.
7. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
8. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent the trial court’s abuse
of discretion.
9. Criminal Law: Torts: Proximate Cause. The concept of proximate
causation is applicable in both criminal and tort law, and the analysis is
parallel in many instances.
10. Proximate Cause. As a general matter, to say one event proximately
caused another is a way of making two separate but related assertions:
First, it means the former event caused the latter; second, it means
that it was not just any cause, but one with a sufficient connection to
the result.
11. Negligence: Proximate Cause. The idea of proximate cause, as distinct
from actual cause or cause in fact, is a flexible concept that generally
refers to the basic requirement that there must be some direct relation
between the injury asserted and the injurious conduct alleged.
12. ____: ____. A requirement of proximate cause serves to preclude liabil-
ity in situations where the causal link between conduct and result is so
attenuated that the consequence is more aptly described as mere fortuity.
13. Negligence: Proximate Cause: Words and Phrases. A “proximate
cause” is a moving or effective cause or fault which, in the natural and
continuous sequence, unbroken by an efficient intervening cause, pro-
duces a death or injury and without which the death or injury would not
have occurred.
14. Proximate Cause: Proof. Three basic requirements must be met in
establishing proximate cause: (1) that without the misconduct, the injury
would not have occurred, commonly known as the “but for” rule; (2)
that the injury was a natural and probable result of the misconduct; and
(3) that there was no efficient intervening cause.
15. Criminal Law: Negligence: Proximate Cause: Words and Phrases.
Criminal conduct is a proximate cause of the event if the event in ques-
tion would not have occurred but for that conduct; conversely, conduct
is not a proximate cause of an event if that event would have occurred
without such conduct.
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Cite as 29 Neb. App. 35616. Negligence: Proximate Cause. An intervening cause supersedes and cuts
off the causal link only when the intervening cause is not foreseeable.
17. Negligence: Proximate Cause: Words and Phrases. An efficient inter-
vening cause is new and independent conduct of a third person, which
itself is a proximate cause of the injury in question and breaks the
causal connection between the original conduct and the injury. The
causal connection is severed when (1) the negligent actions of a third
party intervene, (2) the third party had full control of the situation,
(3) the third party’s negligence could not have been anticipated by the
defendant, and (4) the third party’s negligence directly resulted in injury
to the plaintiff.
18. Negligence: Proximate Cause: Tort-feasors: Liability. The doctrine
that an intervening act cuts off a tort-feasor’s liability comes into play
only when the intervening cause is not foreseeable. But if a third party’s
negligence is reasonably foreseeable, then the third party’s negligence is
not an efficient intervening cause as a matter of law.
19. Negligence. Foreseeable risk is an element in the determination of neg-
ligence, not legal duty. In order to determine whether appropriate care
was exercised, the fact finder must assess the foreseeable risk at the time
of the defendant’s alleged negligence.
20. Trial: Negligence. The extent of foreseeable risk depends on the spe-
cific facts of the case and cannot be usefully assessed for a category of
cases; small changes in the facts may make a dramatic change in how
much risk is foreseeable. Thus, courts should leave such determinations
to the trier of fact unless no reasonable person could differ on the matter.
And if the court takes the question of negligence away from the trier of
fact because reasonable minds could not differ about whether an actor
exercised reasonable care, then the court’s decision merely reflects the
one-sidedness of the facts bearing on negligence and should not be mis-
represented or misunderstood as involving exemption from the ordinary
duty of reasonable care.
21. Evidence: Hearsay: Words and Phrases. Hearsay statements are out-
of-court statements made by a human declarant that are offered in evi-
dence to prove the truth of the matter asserted.
22. Drunk Driving: Blood, Breath, and Urine Tests: Proof. The State is
not required to prove a temporal nexus between the test and the defend­
ant’s alcohol level at the moment he or she was operating the vehicle.
23. ____: ____: ____. Matters of delay between driving and testing are
properly viewed as going to the weight of the breath test results, rather
than to the admissibility of the evidence.
24. Drunk Driving: Blood, Breath, and Urine Tests: Time. A valid breath
test given within a reasonable time after the accused was stopped is
probative of a violation.
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Cite as 29 Neb. App. 35625. Constitutional Law: Criminal Law: Appeal and Error. Harmless
error jurisprudence recognizes that not all trial errors, even those of
constitutional magnitude, entitle a criminal defendant to the reversal of
an adverse trial result.
26. Convictions: Appeal and Error. It is only prejudicial error, that is,
error which cannot be said to be harmless beyond a reasonable doubt,
which requires that a conviction be set aside.
27. Appeal and Error. When determining whether an alleged error is so
prejudicial as to justify reversal, courts generally consider whether the
error, in light of the totality of the record, influenced the outcome of
the case.
28. Verdicts: Juries: Appeal and Error. Harmless error review looks to
the basis on which the jury actually rested its verdict. The inquiry is
not whether in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the actual guilty verdict
rendered was surely unattributable to the error.
29. Trial: Evidence: Verdicts: Appeal and Error. In conducting harmless
error analysis, an appellate court looks to the entire record and views
the erroneously admitted evidence relative to the rest of the untainted,
relevant evidence of guilt. Overwhelming evidence of guilt can be
considered in determining whether the verdict rendered was surely unat-
tributable to the error, but overwhelming evidence of guilt is not alone
sufficient to find the erroneous admission of evidence harmless. An
additional consideration is whether the improperly admitted evidence
was cumulative and tended to prove the same point as other properly
admitted evidence.
30. 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
on the credibility of witnesses, or reweigh the evidence; such matters are
for the finder of fact.
31. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing a criminal conviction for sufficiency of the evidence to
sustain the conviction, 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 ele-
ments of the crime beyond a reasonable doubt.
32. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v.
Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), pro-
hibits the use of statements derived during custodial interrogation unless
the prosecution demonstrates the use of procedural safeguards that are
effective to secure the privilege against self-incrimination.
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Cite as 29 Neb. App. 35633. Miranda Rights: Self-Incrimination: Evidence. Miranda v. Arizona,
384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), requires law
enforcement to give a particular set of warnings to a person in custody
before interrogation, including that he or she has the right to remain
silent, that any statement he or she makes may be used as evidence
against him or her, and that he or she has the right to an attorney. These
warnings are considered prerequisites to the admissibility of any state-
ment made by a defendant during custodial interrogation.
34. Miranda Rights. Miranda warnings are required only when a suspect
interrogated by the police is in custody.
35. ____. The ultimate inquiry for determining whether a person is in cus-
tody for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), is whether there is a formal arrest or restraint
on freedom of movement of degree associated with a formal arrest.
36. ____. Custody under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966), is to be determined based on how a
reasonable person in the suspect’s situation would perceive his or her
circumstances.
37. Constitutional Law: Search and Seizure. A seizure under the Fourth
Amendment 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.
38. Miranda Rights. In considering whether a suspect is in custody for
purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), relevant considerations include, but are not limited
to, the location of the interaction, who initiated the interaction, the
duration of the interaction, the type and approach of questioning, the
freedom of movement of the suspect, the duration of the interaction,
and whether the suspect was placed under arrest at the termination of
the interaction.
39. 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 a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
40. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2)
mentality, (3) education and experience, (4) social and cultural back-
ground, (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.
The sentencing court is not limited to any mathematically applied set
of factors.
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STATE v. SOLLMAN
Cite as 29 Neb. App. 35641. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed.
Thomas P. Strigenz, Sarpy County Public Defender, and
Mitchell S. Sell, Senior Certified Law Student, for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Moore, Bishop, and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
Abram K. Sollman appeals his conviction of motor vehicle
homicide, driving under the influence of alcohol (DUI), and
reckless driving. He contends the district court erred in (1)
overruling his motion to dismiss at the close of evidence and
finding him guilty of count 1, because an efficient interven-
ing cause destroys proximate cause; (2) overruling his hearsay
objection to exhibit 5; (3) finding evidence beyond a reason-
able doubt that he was guilty of count 2; (4) overruling his
motion to dismiss at the close of evidence and finding him
guilty of count 3; (5) overruling his motion to suppress the
statements he made to law enforcement; and (6) imposing
excessive sentences. For the reasons set forth herein, we affirm
Sollman’s convictions and sentences.
II. STATEMENT OF FACTS
At about 6 p.m. on February 1, 2019, Sean Nowling was
traveling westbound on Interstate 80 when “[a]ll of a sud-
den [he heard] honking of a horn like blaring” and a silver
Volkswagen Jetta came “fl[ying] by [him] in the left lane . . .
swerving back and forth through traffic,” outpacing all other
cars on the road and not using turn signals. Nowling later
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STATE v. SOLLMAN
Cite as 29 Neb. App. 356saw the same Volkswagen, which he described as a “station
wagon car” with “real fancy rims on it” and a Wisconsin
license plate, with a door open at the “[Highway] 370 exit”
where its driver had pulled over onto the side of the road and
it appeared to Nowling as if the driver “was urinating on the
side of the road.”
After Nowling passed the silver Volkswagen, Nowling exited
at the Gretna, Nebraska, off ramp before the Volkswagen came
“flying by [him] on the shoulder up through three or four cars
. . . in front of [him] . . . on the shoulder all the way through”
and ran “the red light at the off ramp turn and Highway 31”
toward Gretna. Nowling watched as the Volkswagen ran a
second red light near a shopping mall, causing the vehicles
in the area to quickly brake to avoid a collision. Nowling
also observed the Volkswagen “swerv[e],” “whi[p] around,”
make a “U-turn,” and “hea[d] back towards the [I]nterstate on
Highway 31.” Shortly thereafter, Nowling saw an “ambulance
[and] sheriffs [and saw] Highway 31 was closed off.”
Shortly thereafter, a Sarpy County sheriff’s deputy, John
Sanderson, arrived at the scene of the accident involving the
silver Volkswagen and another vehicle, which accident had
resulted in injuries to both drivers. Sollman was identified as
the driver of the Volkswagen, and a Sarpy County sheriff’s
sergeant, Kyle Percifield, discovered a “small bottle of Fireball
whisky . . . on the passenger side of [Sollman’s] vehicle.”
Deputy Sanderson smelled alcohol emanating from Sollman as
Sollman was being transported on a stretcher to a “life flight”
helicopter and taken to the University of Nebraska Medical
Center (UNMC). The driver of the second vehicle, Cassandra
Clausen, later died of blunt force trauma to her torso as a result
of the accident.
After Deputy Sanderson smelled alcohol emanating from
Sollman, he obtained a search warrant to obtain a DUI blood
draw from Sollman. When Deputy Sanderson arrived at
UNMC to execute the search warrant, he informed Sollman
that he had a search warrant for a blood draw, went over
the post-­chemical-test advisements, and, during the same
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STATE v. SOLLMAN
Cite as 29 Neb. App. 356conversation, asked Sollman if he had had anything to drink.
Sollman responded that he “hadn’t had anything to drink
in 15 hours prior was his last drink.” The results from the
blood draw taken pursuant to the search warrant, which draw
occurred approximately 3 hours after the accident, showed that
Sollman’s blood alcohol content was .125 plus or minus .01
grams of ethanol per 100 milliliters of blood.
The following day, Sergeant Percifield visited Sollman at
UNMC and inquired about Sollman’s recollection of the acci-
dent. Sollman stated that he had been traveling from Michigan
to Lincoln and that “he didn’t feel intoxicated” prior to the
accident. Sergeant Percifield interviewed Sollman for a sec-
ond time while Sollman was in jail and began by informing
Sollman of the charges against him and the preliminary con-
clusions of the investigation into the accident. During this jail
interview, Sollman responded that he thought the speed limit
was 65 m.p.h. Sergeant Percifield acknowledged that he did
not advise Sollman of his Miranda rights while interviewing
Sollman at either the hospital or the jail.
In March 2019, Sollman was charged with motor vehicle
homicide while under the influence of alcohol or drugs, a
Class IIA felony under Neb. Rev. Stat. § 28-306(3)(b) (Reissue
2016) (count 1); DUI, a Class W misdemeanor under Neb. Rev.
Stat. § 60-6,196 (Reissue 2010) (count 2); and reckless driv-
ing, a Class III misdemeanor under Neb. Rev. Stat. § 60-6,213
(Reissue 2010) (count 3). The information alleged that Sollman
unintentionally caused Clausen’s death while engaged in the
unlawful operation of a motor vehicle, i.e., under the influence
of alcohol beyond the legal limit.
1. Motion to Suppress
Prior to trial, Sollman moved to suppress statements he
made to law enforcement at the scene of the February 1, 2019,
accident and the following day while he was in the hospital,
alleging the statements were obtained in violation of the 4th
through 6th and 14th Amendments to the U.S. Constitution,
as well as article I, §§ 7 and 12, of the Nebraska Constitution.
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STATE v. SOLLMAN
Cite as 29 Neb. App. 356More specifically, Sollman asserted that the statements were
obtained when he was hospitalized and in extreme pain and
suffering; that he was not free to leave; that his statements
were given neither freely nor voluntarily and were not made
knowingly, understandingly, or intelligently; that he was not
informed of his Miranda rights; and that his statements were
a result of questions that law enforcement should have known
were likely to elicit an incriminatory response.
At the suppression hearing, certain of the aforementioned
facts that were relevant to Sollman’s motion were admitted
into evidence. Additional testimony was adduced from Deputy
Sanderson and Sergeant Percifield.
(a) Deputy Sanderson
When Deputy Sanderson executed the search warrant for a
blood draw, he observed Sollman to be “conscious, alert, and
talking”; believed Sollman knew who Deputy Sanderson was
and what was going on; and noted Sollman was appropriately
responsive to the questions posed to him. Deputy Sanderson
acknowledged that he did not speak with hospital staff about
Sollman’s condition or about any medications given to Sollman
prior to speaking with him; however, Deputy Sanderson reiter-
ated that Sollman was “with it . . . able to hold a conversa-
tion,” which Deputy Sanderson testified provided him with no
indication that Sollman would be unable to coherently answer
Deputy Sanderson’s questions. Deputy Sanderson agreed that
Sollman’s condition likely prevented him from moving around
the room or leaving at the time Deputy Sanderson spoke with
him, but acknowledged that he did not know for sure. Deputy
Sanderson noted that Sollman did not refuse to speak with him
and did not ask for an attorney, but acknowledged that he did
not advise Sollman of his rights.
Deputy Sanderson recalled that during his interaction with
Sollman, he was standing “probably about five feet” from
the foot of the bed; did not threaten Sollman, yell at him, or
draw his weapon or display it at any point; and did not place
Sollman under arrest or handcuff him.
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Cite as 29 Neb. App. 356(b) Sergeant Percifield
Sergeant Percifield’s first of two meetings with Sollman
occurred at UNMC the day after the accident. Prior to ques-
tioning Sollman, Sergeant Percifield asked hospital staff about
Sollman’s condition and learned from Sollman that Sollman
was on pain medication. Sergeant Percifield sought Sollman’s
consent to obtain Sollman’s blood alcohol content result, and
Sollman responded that Sergeant Percifield “could, and that
[Sergeant Percifield] would get it anyway.” Sergeant Percifield
estimated that he conversed with Sollman “[a]bout 15 minutes”
and noted that he was the only law enforcement officer pres-
ent; did not display his weapon; and did not yell at or threaten
Sollman. Despite Sollman’s condition, Sergeant Percifield
believed Sollman was “alert,” was able to focus on the ques-
tions asked, and responded appropriately to questions. Sergeant
Percifield also noted that Sollman never expressed a desire not
to speak with him and never requested an attorney. However,
Sergeant Percifield did not believe Sollman was able to freely
move around or leave under his own strength.
(c) Court’s Order Regarding
Motion to Suppress
Following the hearing, the district court denied Sollman’s
motion to suppress. The court specifically found that Sollman’s
statements were made voluntarily, explaining that Sollman
was “attentive to the conversation”; that “his responses were
clear, appropriate, and articulate”; that he was not in custody
for purposes of invoking his Miranda rights; that his statement
“‘I thought it [the speed limit] was 65’” was admissible; and
that Sergeant Percifield’s discussion about how he calculated
Sollman’s speed was not intended to elicit any response.
2. Trial
A bench trial was held in December 2019. Stipulations
were entered at trial, including that Clausen died of blunt
force trauma to her torso received during the accident and that
an exhibit containing a call to the 911 emergency dispatch
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STATE v. SOLLMAN
Cite as 29 Neb. App. 356service was admissible. Additional evidence presented to the
district court included testimony from Nowling, a witness to
Sollman’s erratic driving immediately prior to the accident as
previously set forth; Deputy Sanderson; Shayna Hill, the phle-
botomist who performed Sollman’s DUI blood draw; forensic
chemist Shanon Tysor; Sergeant Percifield; and a Nebraska
State Patrol trooper, Andrew Phillips. Surveillance system
video from a nearby business appeared to show Clausen’s
vehicle stop at the intersection and two cars pass before her
vehicle entered the intersection, at which time it was struck by
Sollman’s vehicle.
(a) Phlebotomist Hill
Hill testified that when Sollman was brought to the hospital,
he was treated as a trauma patient, which included Hill’s draw-
ing a blood sample so Sollman’s blood alcohol content could
be analyzed. She explained that the materials used to collect
a blood alcohol sample do not utilize alcohol and that once a
sample has been obtained, she submits the sample to the lab­
oratory for testing and later reviews the test results. Sollman’s
laboratory results obtained the night of the accident showed
he had a blood alcohol content of .197 of a gram of alcohol
per 100 milliliters of blood, which results were offered into
evidence as exhibit 5. Hill identified exhibit 5, but Sollman
objected on hearsay grounds, arguing exhibit 5 should not be
received by the court, because Hill did not complete the test-
ing on Sollman’s blood sample. In response, the State argued
that deficiencies in technique go to the weight and credibility
but not the admissibility of the exhibit. Ultimately, the district
court received exhibit 5 for the purpose of the blood alcohol
content reading.
(b) Deputy Sanderson
Deputy Sanderson provided some of the same testimony
he gave at the suppression hearing, and counsel for Sollman
renewed his objection based on his motion to suppress. In
addition to the content of that previous testimony, Deputy
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Cite as 29 Neb. App. 356Sanderson noted that due to the “chaotic-ness” of the scene,
he did not perform any field sobriety tests or give Sollman a
preliminary breath test at the scene. Instead, Deputy Sanderson
obtained a search warrant for a DUI blood draw. At 9:21 p.m.,
which was approximately 3 hours after the accident, Deputy
Sanderson observed Hill remove two vials’ worth of blood
from Sollman.
(c) Forensic Chemist Tysor
Tysor, a forensic chemist employed by the Douglas County
sheriff’s office, testified that she holds a Class A permit from
the Nebraska Department of Health and Human Services and
explained the permit is a license indicating she can process
blood samples to determine alcohol concentration. Tysor stated
that she tests blood samples for alcohol content monthly and
performs approximately 50 to 60 tests annually. Tysor testi-
fied that she received a request from Deputy Sanderson to test
Sollman’s blood for alcohol and proceeded to test the blood
sample in accordance with the specifications of title 177 of the
Nebraska Administrative Code. Tysor further stated that all the
scientific equipment was in proper working order. However,
Tysor testified that the date or time the sample was collected
was not included in her report. When Tysor was asked what
the blood alcohol content of Sollman’s sample was, Sollman
objected based on foundation as to the chain of custody, but
the court overruled the objection. Tysor reviewed the notes she
took when testing Sollman’s blood sample and testified the
vial indicated that the sample had been collected on February
1, 2019, at 9:21 p.m. Tysor testified Sollman’s blood alcohol
content was .125 plus or minus .01 grams of ethanol per 100
milliliters of blood.
(d) Sergeant Percifield
Sergeant Percifield testified that he has experience and train-
ing in investigating vehicle accidents and that as part of his
investigation of the current accident, he recorded his interview
with Sollman at the hospital. The district court received the
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Cite as 29 Neb. App. 356recording in evidence over Sollman’s renewal of his motion
to suppress.
Sergeant Percifield also investigated and took photographs
of the vehicles involved in the accident. The photographs
show the silver Volkswagen’s Michigan license plate, num-
ber “EAC 7112,” and Sergeant Percifield testified that they
show the Volkswagen’s tire imprint indicated the tires were
larger than the manufacturer’s recommended size. Sergeant
Percifield explained that because the Volkswagen was equipped
with larger tires, the speedometer underreported the vehi-
cle’s actual speed. Sergeant Percifield further testified that the
Volkswagen’s speedometer had stopped at approximately 76
m.p.h., which happens with older vehicles that are involved in
an accident, but also acknowledged that a frozen speedometer
is not definitive proof of the speed Sollman was going at the
time of the accident.
Sergeant Percifield also used data from the airbag control
module in Clausen’s vehicle to corroborate speed calculations.
Sergeant Percifield determined that at the time of the accident,
Clausen was traveling at 14.93 m.p.h. and Sollman was travel-
ing at approximately 72.49 m.p.h. Sergeant Percifield’s inves-
tigation established that Clausen was at a stop sign when she
failed to yield and turned left in front of Sollman onto Highway
31. Sergeant Percifield estimated that had Sollman been travel-
ing at 55 m.p.h. rather than over 70 m.p.h., Clausen’s vehicle
would have cleared Sollman’s lane of travel when he was
31 feet from the impact area. When asked hypothetically
whether this accident would have occurred if both drivers
had been sober, Sergeant Percifield stated that the accident
might not have occurred, because reaction time is a factor
considered during accident reconstruction. More specifically,
Sergeant Percifield explained that a sober person might realize
an obstruction is in the roadway and react to it more quickly
than someone who was intoxicated. Sergeant Percifield opined
that based on his calculations, the accident occurred because
Sollman was traveling at around 72 m.p.h. in a 55-m.p.h.
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Cite as 29 Neb. App. 356zone, and that intoxication was a factor in the accident due
to the slower reaction and perception of an impaired person.
Sergeant Percifield explained that lack of tire marks attribut-
able to Sollman’s vehicle was evidence that his reaction to the
impending crash was slowed.
Sergeant Percifield spoke to Sollman about the over-
sized tires on his vehicle and the speed calculations, and
Sollman replied that he thought the speed limit was 65 m.p.h.
Sollman renewed his motion to suppress by objecting to those
statements.
Sergeant Percifield testified that text message data from
Clausen’s cell phone showed she received a text message near
the time of the accident but did not indicate whether that mes-
sage was viewed by Clausen, and Sergeant Percifield could
not conclude whether that contributed to the accident. Sergeant
Percifield also noted the incoming text message had the same
time stamp as a crash assistance number that was automatically
dialed from Clausen’s cell phone.
(e) Trooper Phillips
Trooper Phillips testified that he responded to a call for serv­
ice in February 2019 because Sollman was seeking Salvation
Army vouchers for a hotel room. After Phillips spoke with
Sollman, he learned that Sollman had two Sarpy County war-
rants for his arrest for misdemeanor DUI and felony motor
vehicle homicide. As Trooper Phillips transported Sollman to
the Sarpy County jail, Sollman made statements related to the
accident, including that the accident “cured him from drinking
and driving.”
3. Verdict and Sentencing
Following the conclusion of the State’s case, Sollman moved
to dismiss counts 1 and 3 on the basis that the State had failed
to present a prima facie case, which motion was overruled by
the district court. Sollman then rested without presenting any
evidence and renewed his motion to dismiss, which the district
court again overruled.
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Cite as 29 Neb. App. 356Ultimately, the district court found Sollman guilty of all
three of the charged offenses. Prior to sentencing, Sollman
filed motions for new trial alleging that there was insufficient
evidence to convict him and that the court failed to consider
lesser-included offenses. The district court overruled those
motions, finding that there was sufficient evidence to convict
Sollman on all three charged offenses, and because the State
met its burden beyond a reasonable doubt on count 1, the court
did not need to consider lesser-included offenses.
At the sentencing hearing, the district court stated that it had
considered the contents of the presentence investigation report
(PSR), documentation that Sollman was 46 years old at the
time of the PSR, was married, and had nine dependent chil-
dren; Sollman’s criminal history and “Level of Service/Case
Management Inventory” (LS/CMI) scores; the comments made
at sentencing; the circumstances surrounding the accident,
including Sollman’s intoxication level and speed; and the
seriousness of the crimes committed by Sollman. The district
court also noted that Sollman blamed the victim for the acci-
dent and that the court found Nowling’s account of the events
leading up to the accident credible. Further, the court reviewed
law enforcement’s accident reconstruction and calculations,
which determined the accident was caused by speeding, but
the court noted, “The accident was [caused by] an intoxication
level more than two times the legal limit, excessive speed-
ing and erratic driving all the way up to the point in time
this occurred.”
As a result of those considerations, the district court found
that imprisonment was necessary to protect the public due
to the substantial risk Sollman would engage in additional
criminal conduct if placed on probation and that “a lesser
sentence would depreciate the seriousness of the offense or
promote disrespect of the law.” For count 1, motor vehicle
homicide, the district court sentenced Sollman to 14 to 20
years’ imprisonment and a 15-year license suspension. For
count 2, DUI, the district court sentenced Sollman to 60 days’
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Cite as 29 Neb. App. 356imprisonment and revoked Sollman’s license for 6 months but
provided that Sollman could install an ignition interlock device
after 45 days. For count 3, reckless driving, the district court
sentenced Sollman to 90 days’ imprisonment. The sentences
were ordered to be served consecutively, but the 15-year and
6-month license revocations were ordered to run concurrently.
Additionally, Sollman was given credit for 378 days previously
served. The district court also ordered Sollman to pay a fine of
$500. Sollman has timely appealed to this court.
III. ASSIGNMENTS OF ERROR
Sollman argues the district court erred in (1) overruling his
motion to dismiss at the close of evidence and finding him
guilty of motor vehicle homicide (count 1), because an efficient
intervening cause destroys proximate cause; (2) overruling his
hearsay objection to exhibit 5; (3) finding him guilty of DUI
(count 2); (4) overruling his motion to dismiss at the close of
evidence and finding him guilty of reckless driving (count 3);
(5) overruling his motion to suppress the statements he made to
law enforcement; and (6) imposing excessive sentences.
IV. STANDARD OF REVIEW
[1-3] A motion to dismiss at the close of all the evidence has
the same legal effect as a motion for directed verdict. State v.
Combs, 297 Neb. 422, 900 N.W.2d 473 (2017). See, also, State
v. Malone, 26 Neb. App. 121, 917 N.W.2d 164 (2018). In deter-
mining whether a criminal defendant’s motion to dismiss for
insufficient evidence should be sustained, the State is entitled
to have all of its relevant evidence accepted as true, the benefit
of every inference that can reasonably be drawn from the evi-
dence, and every controverted fact resolved in its favor. State
v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002). In a criminal
case, a court can direct a verdict only when there is a com-
plete failure of evidence to establish an essential element of
the crime charged or the evidence is so doubtful in character,
lacking probative value, that a finding of guilt based on such
evidence cannot be sustained. Id.- 372 -
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Cite as 29 Neb. App. 356[4] Excluding rulings under the residual hearsay exception,
an appellate court reviews the factual findings underpinning a
trial court’s hearsay ruling for clear error and reviews de novo
the court’s ultimate determination whether the court admitted
evidence over a hearsay objection or excluded evidence on
hearsay grounds. See State v. Dady, 304 Neb. 649, 936 N.W.2d
486 (2019).
[5] In reviewing a motion to suppress a statement based on
its claimed involuntariness, including claims that law enforce-
ment procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies
a two-part standard of review. State v. Montoya, 304 Neb. 96,
933 N.W.2d 558 (2019). Regarding historical facts, an appel-
late court reviews the trial court’s findings for clear error. Id.Whether those facts meet constitutional standards, however, is
a question of law, which an appellate court reviews indepen-
dently of the trial court’s determination. Id.[6-8] Evidentiary questions committed to the discretion of
the trial judge, orders denying a motion for new trial, and
claims of excessive sentencing are all reviewed for abuse of
discretion. State v. Dady, supra. An abuse of discretion occurs
when a trial court’s decision is based upon reasons that are
untenable or unreasonable or if its action is clearly against jus-
tice or conscience, reason, and evidence. Id. An appellate court
will not disturb a sentence imposed within the statutory limits
absent the trial court’s abuse of discretion. State v. Lierman,
305 Neb. 289, 940 N.W.2d 529 (2020).
V. ANALYSIS
1. Motion to Dismiss and Finding
of Guilt on Count 1
Sollman first argues that the district court erred in overruling
his motion to dismiss at the close of evidence and finding him
guilty of count 1, because of the doctrine of efficient interven-
ing cause.
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Cite as 29 Neb. App. 356A motion to dismiss at the close of all the evidence has
the same legal effect as a motion for directed verdict. State v.
Combs, supra. In determining whether a criminal defendant’s
motion to dismiss for insufficient evidence should be sustained,
the State is entitled to have all of its relevant evidence accepted
as true, the benefit of every inference that can reasonably be
drawn from the evidence, and every controverted fact resolved
in its favor. State v. Canady, supra. In a criminal case, a court
can direct a verdict only when there is a complete failure of
evidence to establish an essential element of the crime charged
or the evidence is so doubtful in character, lacking probative
value, that a finding of guilt based on such evidence cannot be
sustained. Id.[9-15] Sollman was charged with motor vehicle homicide,
which is defined in § 28-306. Section 28-306(1) provides that
“[a] person who causes the death of another unintentionally
while engaged in the operation of a motor vehicle in violation
of the law of the State of Nebraska or in violation of any city
or village ordinance commits motor vehicle homicide.” Section
28-306(3)(b) further provides:
If the proximate cause of the death of another is the oper-
ation of a motor vehicle in violation of section 60-6,196
or 60-6,197.06, motor vehicle homicide is a Class IIA
felony. The court shall, as part of the judgment of con-
viction, order the person not to drive any motor vehicle
for any purpose for a period of at least one year and not
more than fifteen years and shall order that the operator’s
license of such person be revoked for the same period.
Sollman argues that the State failed to prove that Sollman’s
actions here were the proximate cause of the victim’s death.
In support of that argument, he cites to State v. Irish, 292 Neb.
513, 520-21, 873 N.W.2d 161, 167-68 (2016), wherein the
Nebraska Supreme Court set forth the requirements for estab-
lishing proximate cause in the criminal context, holding:
The concept of proximate causation is applicable in
both criminal and tort law, and the analysis is parallel
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Cite as 29 Neb. App. 356in many instances. As a general matter, to say one event
proximately caused another is a way of making two
separate but related assertions: First, it means the former
event caused the latter; second, it means that it was not
just any cause, but one with a sufficient connection to
the result. The idea of proximate cause, as distinct from
actual cause or cause in fact, is a flexible concept that
generally refers to the basic requirement that there must
be some direct relation between the injury asserted and
the injurious conduct alleged. A requirement of proxi-
mate cause serves to preclude liability in situations where
the causal link between conduct and result is so atten­
uated that the consequence is more aptly described as
mere fortuity.
Proximate causation and “but for” causation are inter­
related. A “proximate cause” is a moving or effective
cause or fault which, in the natural and continuous
sequence, unbroken by an efficient intervening cause,
produces a death or injury and without which the death
or injury would not have occurred. Three basic require-
ments must be met in establishing proximate cause: (1)
that without the misconduct, the injury would not have
occurred, commonly known as the “but for” rule; (2) that
the injury was a natural and probable result of the mis-
conduct; and (3) that there was no efficient intervening
cause. Criminal conduct is a proximate cause of the event
if the event in question would not have occurred but for
that conduct; conversely, conduct is not a proximate cause
of an event if that event would have occurred without
such conduct. Thus, “but for” causation is encompassed
within proximate causation.
Sollman attempts to argue here that the victim’s negligence
in pulling out in front of Sollman’s vehicle and failing to yield
to him was an efficient intervening cause of the accident and
the victim’s death. More specifically, Sollman argues that
“[b]ecause the State does not dispute the accident would not
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Cite as 29 Neb. App. 356have happened if [the victim] had not pulled out in front of . . .
Sollman, the State failed to prove the absence of an efficient
intervening cause, and as a result, failed to prove proximate
cause.” Brief for appellant at 11.
But Sollman’s simplified argument misconstrues the concept
of intervening cause as it relates to this record. Whereas it is
true that there was evidence that the victim failed to yield the
right of way to Sollman, there was also evidence that but for
Sollman’s excessive speed and delayed reaction to the victim’s
pulling out, the accident would have been avoided. Thus, there
was evidence in this record that both parties’ conduct, in fact,
contributed to the accident here.
[16] The Nebraska Supreme Court addressed the impact of
contributing factors to an accident, as it relates to proximate
cause, in State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016).
In so doing, the court held:
A reasonable trier of fact could find “but for” causation
in this case. If [the defendant] had not been driving the
pickup while under the influence, his passenger would not
have been seriously injured when [he] failed to negotiate
a curve and rolled the pickup, leading to the ejection of
the passenger. There is a causal nexus between [his] act
of driving while under the influence and the passenger’s
serious bodily injury; such injury did not merely occur
while [he] was driving.
The presence of other factors combining with [the
defendant’s] act of driving while under the influence does
not defeat “but for” causation. [He] argues that “but for”
causation cannot be established due to other consider-
ations such as vehicle speed, road construction, failure
of the passenger to wear a seatbelt, and snow and ice
on the road. We find helpful the following explanation
of the U.S. Supreme Court: “Thus, ‘where A shoots B,
who is hit and dies, we can say that A [actually] caused
B’s death, since but for A’s conduct B would not have
died.’ . . . The same conclusion follows if the predicate
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Cite as 29 Neb. App. 356act combines with other factors to produce the result,
so long as the other factors alone would not have done
so—if, so to speak, it was the straw that broke the camel’s
back. Thus, if poison is administered to a man debilitated
by multiple diseases, it is a but-for cause of his death
even if those diseases played a part in his demise, so long
as, without the incremental effect of the poison, he would
have lived.” The other factors to which [the defendant]
points may have combined with [his] act of driving to
produce the result, but a reasonable trier of fact could
conclude that the other factors alone would not have done
so. And [his] act of driving while under the influence was
an independently sufficient cause of the passenger’s seri­
ous bodily injury. Thus, “but for” causation exists.
A reasonable trier of fact could also conclude that the
passenger’s serious bodily injury was a direct and natural
result of [the defendant’s] act of driving the pickup while
under the influence of alcohol and that no intervening
cause superseded and severed the causal link. An inter-
vening cause supersedes and cuts off the causal link only
when the intervening cause is not foreseeable. The other
factors that [he] claims contributed to the accident were
not efficient intervening causes, because they were fore-
seeable. And, as noted, there was sufficient causal con-
nection between [his] act of driving while under the influ-
ence of alcohol and the resulting serious bodily injury to
[his] passenger.
State v. Irish, 292 Neb. at 521-22, 873 N.W.2d at 168.
The same can be said here. A reasonable trier of fact could
find “but for” causation in this case. If Sollman had not been
driving nearly 20 m.p.h. over the speed limit while intoxi-
cated, this accident could have been avoided notwithstanding
the victim’s failure to yield. There is a causal nexus between
Sollman’s act of driving while impaired at an excessive rate of
speed and with delayed reaction time and this collision, which
resulted in the victim’s death.
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Cite as 29 Neb. App. 356A reasonable trier of fact could also conclude the victim’s
death was a direct and natural result of Sollman’s act of driving
his vehicle at an excessive rate of speed while under the influ-
ence of alcohol with limited reaction time and that no interven-
ing cause superseded and severed the causal link.
In making that determination, we are mindful of Sollman’s
argument that the victim’s negligence here was an efficient
intervening cause which itself was the proximate cause of the
accident. Sollman argues that the victim’s conduct in failing to
yield to Sollman severed his negligence in operating his vehicle
while under the influence at an excessive rate of speed and
should have resulted in the court’s directing a verdict here.
[17,18] But a similar argument was made by the defendant
in Wilke v. Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370(2009). In addressing the doctrine of efficient intervening
cause, the Nebraska Supreme Court held:
An efficient intervening cause is new and independent
conduct of a third person, which itself is a proximate
cause of the injury in question and breaks the causal
connection between the original conduct and the injury.
The causal connection is severed when (1) the negligent
actions of a third party intervene, (2) the third party had
full control of the situation, (3) the third party’s negli-
gence could not have been anticipated by the defendant,
and (4) the third party’s negligence directly resulted in
injury to the plaintiff. The doctrine that an intervening
act cuts off a tort-feasor’s liability comes into play only
when the intervening cause is not foreseeable. But if a
third party’s negligence is reasonably foreseeable, then
the third party’s negligence is not an efficient intervening
cause as a matter of law.
Id. at 816-17, 774 N.W.2d at 383. Applying that doctrine, like
in State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016), the
court found there was evidence in the record a jury could find
that the alleged intervening act was reasonably foreseeable,
thereby precluding judgment as a matter of law on the issue.
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Cite as 29 Neb. App. 356[19,20] And more recently, in addressing the issue of
foreseeability in cases such as these, the Nebraska Supreme
Court held:
“[U]nder the Restatement (Third), foreseeable risk is an
element in the determination of negligence, not legal
duty. In order to determine whether appropriate care was
exercised, the fact finder must assess the foreseeable risk
at the time of the defendant’s alleged negligence. The
extent of foreseeable risk depends on the specific facts of
the case and cannot be usefully assessed for a category
of cases; small changes in the facts may make a dramatic
change in how much risk is foreseeable. Thus, courts
should leave such determinations to the trier of fact
unless no reasonable person could differ on the matter.
And if the court takes the question of negligence away
from the trier of fact because reasonable minds could
not differ about whether an actor exercised reasonable
care (for example, because the injury was not reasonably
foreseeable), then the court’s decision merely reflects
the one-sidedness of the facts bearing on negligence
and should not be misrepresented or misunderstood as
involving exemption from the ordinary duty of reason-
able care.”
Latzel v. Bartek, 288 Neb. 1, 17, 846 N.W.2d 153, 165 (2014),
quoting A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205,
784 N.W.2d 907 (2010).
Taking these cases together, unless reasonable minds can-
not differ, the issue of whether the victim’s negligent act was
foreseeable here was a question of fact for the trier of fact.
This is not a case where reasonable minds could not differ.
Applying a similar rationale in Vilas v. Steavenson, 242 Neb.
801, 496 N.W.2d 543 (1993), overruled on other grounds,
DeWester v. Watkins, 275 Neb. 173, 745 N.W.2d 330 (2008),
the Nebraska Supreme Court held that where there was no
evidence in the case that the third party’s negligence was not
reasonably foreseeable, the district court did not err in finding
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Cite as 29 Neb. App. 356that the third party’s negligence was not an efficient interven-
ing cause. We reach the same conclusion here. The record in
the instant case is devoid of evidence that Sollman could not
have anticipated that the victim would misjudge his speed and
enter the intersection. And the record contains evidence that
Clausen came to a stop before entering the intersection, waited
for two cars to pass, then proceeded into the intersection, and
had Sollman been traveling at the posted speed, the accident
could have been avoided. This became an issue of fact for the
trier of fact in this case. In short, the record indicates evidence
of a sufficient causal connection between Sollman’s act of
driving under the influence of alcohol and the victim’s death
here. See, also, State v. Brown, 258 Neb. 330, 603 N.W.2d 419(1999) (victim’s negligence cannot act to absolve defendant in
motor vehicle homicide case unless victim’s actions were sole
proximate cause of accident); State v. William, 231 Neb. 84,
435 N.W.2d 174 (1989) (contributory negligence not defense
to charge of motor vehicle homicide). Under the standards of
review governing a motion to dismiss or in reviewing the suf-
ficiency of the evidence established above, we determine the
court did not err in overruling Sollman’s motion to dismiss or
in finding for the State on the issue of proximate cause. This
first assignment of error fails.
2. Hearsay Objection
to Exhibit 5
Sollman next argues that the district court erred in admitting
exhibit 5 over his hearsay objection. Exhibit 5 was a medical
record issued by the UNMC which contained an entry from
a UNMC clinical laboratory which indicated that Sollman’s
blood alcohol content was .197 of a gram of alcohol per 100
milliliters of blood on February 1, 2019, following the acci-
dent. Hill testified that test and the resulting record were a
component part of Sollman’s medical treatment, Sollman’s
having been admitted as a trauma patient, which treatment
includes drawing a blood sample.
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Cite as 29 Neb. App. 356[21] Sollman’s counsel objected to the admission of exhibit
5 on hearsay grounds. Sollman argues that the report itself
“contains assertions from some unnamed out-of-court declar-
ant.” Brief for appellant at 16. He then argues that in regard to
Hill’s testimony which laid foundation for the record:
The problem with . . . Hill’s testimony is she did not com-
plete the testing on the samples taken from . . . Sollman;
she was merely the phlebotomist who drew blood and
then sent the sample through a zip tube. . . .
. . . [T]here was no evidence in the record regarding
[the] testing procedure that produced Exhibit 5. Drawing
blood and sending the sample through a zip tube does not
overcome the elements of hearsay to admit the lab results
in evidence, and the District Court should have sustained
. . . Sollman’s objection to Exhibit 5.
Id. at 16-17. The State responds by claiming that although
the record contains hearsay statements, which are out-of-court
statements made by a human declarant that are offered in
evidence to prove the truth of the matter asserted, see State
v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008), and
which are not admissible without exception, statements made
for purposes of medical diagnoses or treatment are excepted
from the hearsay rule by Neb. Rev. Stat. § 27-803(3) (Reissue
2016). But the State further argues that even if the report is
deemed hearsay,
the State produced additional evidence of Sollman’s
[blood alcohol content] the night of the accident in the
form of [a Douglas County sheriff’s office forensic labo-
ratory report], which is more than capable of establishing
his [blood alcohol content] after the accident in a fashion
more customary in DUI investigations and prosecutions.
Brief for appellee at 29.
We find the State’s second argument dispositive here, so
we do not reach the first. The State presented clear testimony
at trial that it procured a warrant and legally determined
Sollman’s blood alcohol content, which evidence it offered
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Cite as 29 Neb. App. 356through the testimony of Tysor, a forensic chemist. Even
Sollman’s brief acknowledges that because Tysor explained
that “she had a Class A permit, was familiar with [t]itle 177 [of
the Nebraska Administrative Code], and testified to the various
instruments and testing procedures she used[,] Sollman did not
object to her testimony.” Brief for appellant at 17. As such, the
evidence offered by Tysor came in without objection and estab-
lished that Sollmon was still over the legal limit nearly 3 hours
after the accident. The State asserts this evidence adequately
supports the verdict regardless of evidence from the separate
test provided in exhibit 5.
In response to the evidence offered by Tysor, and the State’s
argument here, Sollman argues that the results of this test
were taken at 9:21 p.m., nearly 3 hours after the accident,
and that there were no calculations performed to estimate the
metabolism of the sample back to the time of the accident.
Accordingly, he argues that the evidence relating to this second
test was not sufficient to support the verdict and further dem-
onstrates how the first result created prejudicial error.
[22-24] But a similar temporal-based argument was made
by the defendant in State v. Dinslage, 280 Neb. 659, 664,
789 N.W.2d 29, 34 (2010), in which the Nebraska Supreme
Court held:
In State v. Kubik, [235 Neb. 612, 456 N.W.2d 487(1990),] we explained that the State is not required to
prove a temporal nexus between the test and the defend­
ant’s alcohol level at the moment he or she was operat-
ing the vehicle. It would be an impossible burden on the
State to conduct such an extrapolation when its accuracy
depends on the defendant’s willingness to testify and his
or her honesty in reporting all relevant factors, including
the time and quantity of consumption. Thus, matters of
delay between driving and testing are properly viewed as
going to the weight of the breath test results, rather than
to the admissibility of the evidence. And a valid breath
test given within a reasonable time after the accused
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Cite as 29 Neb. App. 356was stopped is probative of a violation. We speculated in
Kubik that there might in some cases be a “delay . . . so
substantial as to render the test results nonprobative of
the accused’s impairment or breath alcohol level while
driving.” But we held that a breath test given “less than
1 hour” after the defendant was stopped did not entail an
unreasonable delay.
We similarly find that under the circumstances of this case,
this valid blood test was obtained within a reasonable time
after the motor vehicle accident which resulted in severe
injuries to Sollman and the death of the victim. In so finding,
we are cognizant of the facts that this accident took place at
the outskirts of the Omaha, Nebraska, metropolitan area; that
Sollman had to be extricated from his vehicle, “life flighted”
to UNMC, and treated for injuries; and that Deputy Sanderson
arrived at the scene, drafted a blood draw warrant, had it autho-
rized by a judge, then drove to UNMC in order to locate per-
sonnel to collect the blood sample from Sollman. Under these
circumstances, we cannot find the nearly 3 hours it took to
obtain the blood sample pursuant to the warrant unreasonable.
Further, there is no evidence in this record that Sollman, who
was experiencing a serious medical condition, had consumed
additional alcohol after the accident but before the blood test.
The test sample, as attested by Tysor, was validly drawn and
tested, and the results indicated Sollman was significantly
over the legal limit nearly 3 hours after the accident. This evi-
dence of Sollman’s alcohol-based impairment was consistent
with testimony which described the erratic nature in which
Sollman operated his vehicle just prior to, and at the time of,
the accident.
[25-29] As the Nebraska Supreme Court held in State v.
Kidder, 299 Neb. 232, 243-45, 908 N.W.2d 1, 9-10 (2018):
Pursuant to Neb. Evid. R. 103, Neb. Rev. Stat.
§ 27-103(1) (Reissue 2016), “[e]rror may not be predi-
cated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected[.]”
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Cite as 29 Neb. App. 356When it comes to evidentiary error, this statutory author-
ity forms the foundation for this court’s harmless error
jurisprudence. Generally speaking, in criminal cases, the
purpose of harmless error review is to ensure convictions
are not set aside “‘for small errors or defects that have
little, if any, likelihood of having changed the result of
the trial.’”
Harmless error jurisprudence recognizes that not all
trial errors, even those of constitutional magnitude, entitle
a criminal defendant to the reversal of an adverse trial
result. It is only prejudicial error, that is, error which can-
not be said to be harmless beyond a reasonable doubt,
which requires that a conviction be set aside.
When determining whether an alleged error is so preju-
dicial as to justify reversal, courts generally consider
whether the error, in light of the totality of the record,
influenced the outcome of the case. In other words, harm-
less error review looks to the basis on which the jury
actually rested its verdict. The inquiry is not whether
in a trial that occurred without the error, a guilty ver-
dict would surely have been rendered, but whether the
actual guilty verdict rendered was surely unattributable
to the error.
In conducting this analysis, an appellate court looks
to the entire record and views the erroneously admitted
evidence relative to the rest of the untainted, relevant
evidence of guilt. Overwhelming evidence of guilt can be
considered in determining whether the verdict rendered
was surely unattributable to the error, but overwhelming
evidence of guilt is not alone sufficient to find the errone-
ous admission of evidence harmless. An additional con-
sideration is whether the improperly admitted evidence
was cumulative and tended to prove the same point as
other properly admitted evidence.
Assuming without deciding that the court erred in allow-
ing the admission of exhibit 5, which included additional
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Cite as 29 Neb. App. 356evidence that Sollman’s blood alcohol level exceeded the legal
limit, the admission of that evidence was simply cumulative to
the properly admitted evidence that Sollman’s blood alcohol
level exceeded the legal limit as attested by Tysor. The record
in this case affirmatively demonstrates that any error in allow-
ing the admission of exhibit 5 was harmless. Accordingly, this
assignment of error fails.
3. Sufficiency of Evidence
on Count 2—DUI
Sollman next argues that there was insufficient evidence to
convict him of DUI, in violation of § 60-6,196(1)(b). Section
60-6,196(1) provides, in pertinent part: “It shall be unlawful
for any person to operate or be in the actual physical control of
any motor vehicle . . . [w]hen such person has a concentration
of eight-hundredths of one gram or more by weight of alcohol
per one hundred milliliters of his or her blood.”
[30,31] In reviewing a criminal conviction for a sufficiency
of the evidence claim, whether the evidence is direct, circum-
stantial, 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. State v. Smith, 302 Neb. 154,
922 N.W.2d 444 (2019). When reviewing a criminal convic-
tion for sufficiency of the evidence to sustain the conviction,
the relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt. State v.
Williams, 306 Neb. 261, 945 N.W.2d 124 (2020).
Applying this standard, the evidence reflects that follow-
ing this serious accident, investigators determined Sollman
to have been the operator of a vehicle traveling at an exces-
sive rate of speed just prior to the accident and to have been
driving erratically immediately prior thereto; that while being
extricated from his vehicle, Sollman smelled of alcohol; that
investigators found an empty bottle of alcohol in his vehicle;
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Cite as 29 Neb. App. 356and that through the use of a warrant, investigators obtained
a blood sample when Sollman became reasonably available
to provide it which revealed Sollman’s blood alcohol level
significantly exceeded the legal limit nearly 3 hours after
his being involved in the accident, which resulted in the vic-
tim’s death. Although Sollman argues the temporal connection
involving the blood test in relation to the accident should result
in a finding that the evidence here was insufficient to convict
him, we have already found that such evidence was probative
of Sollman’s condition under these circumstances, and taking it
together with all the evidence viewed in the light most favor-
able to the State, we hold that a rational trier of fact could have
found the essential element of this crime beyond a reasonable
doubt. This assignment of error fails.
4. Motion to Dismiss and Finding of
Guilt—Wanton Disregard
Sollman next argues that there was insufficient evidence to
convict him of operating a motor vehicle in such a manner as
to indicate an indifferent or wanton disregard for the safety of
persons or property, in violation § 60-6,213.
Without repeating the full scope of review governing suf-
ficiency of the evidence determination cited above, we review
the record to determine whether the evidence in this record
is sufficient to find that a rational trier of fact could find that
Sollman operated his vehicle in a manner which would indicate
an indifferent or wanton disregard for the safety of persons or
property, in violation of § 60-6,213. We find that it is.
Although Sollman acknowledges the evidence of his exces-
sive speed, he argues that the speed of a defendant’s vehicle
alone is not, in and of itself, determinative of a violation of
§ 60-6,213, citing State v. Howard, 253 Neb. 523, 571 N.W.2d
308 (1997). But the evidence in this record was not lim-
ited to Sollman’s excessive speed. It included the testimony
of Nowling, who discussed the erratic nature of Sollman’s
conduct leading up to the accident. In relation to that tes-
timony, Sollman argues that “Nowling never identified . . .
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Cite as 29 Neb. App. 356Sollman as the driver [of the vehicle that he observed] at any
point during trial” and “Nowling testified that he was unable
to see the driver’s face despite the fact he observed the driver
stand on the side of the road next to his car.” Brief for appel-
lant at 19-20.
Regardless of whether Nowling could not specifically iden-
tify Sollman’s face, his testimony was sufficient to identify
that it was Sollman’s vehicle he observed driving in an erratic
fashion just prior to the accident, and we will not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. The testimony of the investigators
here taken together with the testimony of Nowling was suf-
ficient for a rational trier of fact to find the essential element
of this offense beyond a reasonable doubt. This assignment of
error fails.
5. Motion to Suppress
Sollman’s fifth assigned error is that the district court
erred in overruling his motion to suppress the statements he
made to law enforcement while in the hospital recovering
from his injuries. Sollman argues that at no time prior to his
conversations with Deputy Sanderson or Sergeant Percifield
was he advised of his Miranda rights and that any incriminat-
ing statement made during those conversations should have
been suppressed.
[32-38] The Nebraska Supreme Court has recognized that
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), prohibits the use of statements derived
during custodial interrogation unless the prosecution demon-
strates the use of procedural safeguards that are effective to
secure the privilege against self-incrimination. State v. Benson,
305 Neb. 949, 943 N.W.2d 426 (2020). More specifically, the
court held:
Miranda requires law enforcement to give a particular set
of warnings to a person in custody before interrogation,
including that he or she has the right to remain silent, that
any statement he or she makes may be used as evidence
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Cite as 29 Neb. App. 356against him or her, and that he or she has the right to
an attorney. These warnings are considered prerequisites
to the admissibility of any statement made by a defendant
during custodial interrogation.
Miranda warnings are required only when a suspect
interrogated by the police is in custody. The ultimate
inquiry for determining whether a person is in custody is
whether there is a formal arrest or restraint on freedom
of movement of degree associated with a formal arrest.
Custody is to be determined based on how a reasonable
person in the suspect’s situation would perceive his or
her circumstances. Stated another way, a seizure under
the Fourth Amendment 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.
In considering whether a suspect is in custody for
Miranda purposes, relevant considerations include, but
are not limited to the location of the interaction, who
initiated the interaction, the duration of the interaction,
the type and approach of questioning, the freedom of
movement of the suspect, the duration of the interaction,
and whether the suspect was placed under arrest at the
termination of the interaction.
State v. Benson, 305 Neb. at 963-64, 943 N.W.2d at 439-40.
Applying this doctrine, Sollman argues that the investigating
officers’ questions here amounted to a custodial interrogation.
In furtherance of that position, Sollman argues:
Because the District Court made a factual finding that
officers were conducting a DUI investigation when they
interviewed . . . Sollman at the hospital, and he had three
broken limbs, it is clear that . . . Sollman was unable
to leave during questioning even if he wanted to. These
facts amount to . . . Sollman[’s] being under custodial
interrogation, just like in Mincey v. Arizona, 437 U.S.
385[, 98 S. Ct. 2408, 57 L. Ed. 2d 290] (1978), where
the defendant was in great pain while in the hospital,
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Cite as 29 Neb. App. 356and the United States Supreme Court determined he was
under custodial interrogation.
Brief for appellant at 21.
Although the U.S. Supreme Court did find that an investiga-
tion of a defendant could ripen into a custodial interrogation
in a hospital setting, it made that finding on facts dissimilar to
the case at bar. In Mincey v. Arizona, 437 U.S. 385, 398-99, 98
S. Ct. 2408, 57 L. Ed. 2d 290 (1978), the hospitalized defend­
ant was not only in “‘unbearable’” pain, but was described
as being depressed almost to the point of coma; encumbered
by tubes, needles, and breathing apparatus; and in a condi-
tion so severe the Court concluded that his “statements . . .
were not ‘“the product of a rational intellect and a free will”’”
and remarked that even “[i]n this debilitated and helpless
condition, [he] clearly expressed his wish not to be interro-
gated” by requesting a lawyer and repeatedly asking the officer
to stop.
The same cannot be said here. Although the record indicates
Sollman was injured and unable to leave the room without
assistance, Deputy Sanderson described Sollman as “with it”
and capable of carrying on a conversation. Deputy Sanderson
described Sollman as being properly responsive to him and
able to hold a conversation and indicated that at no time did
Sollman make an effort to end the interview or express any
desire to be uncooperative.
The Nebraska Supreme Court reviewed a similar factual
­scenario in State v. Melton, 239 Neb. 506, 476 N.W.2d 842(1991). In Melton, a police officer engaged in multiple con-
versations with the defendant in a hospital following an auto-
mobile accident which resulted in the death of his passenger.
At that time, police were unable to determine the driver of
the vehicle, so they questioned the defendant while in the
hospital as part of their ongoing investigation governing the
incident. Although in a recorded interview, the defendant told
investigators that his passenger had been driving, the police
eventually determined that the defendant had been driving. He
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Cite as 29 Neb. App. 356later moved to suppress statements made during his interview,
arguing the statements were made during a custodial interroga-
tion and provided without Miranda warnings. On those facts,
the court in Melton concluded:
We find that [the defendant] was not in custody. He
was admitted to the hospital for treatment, was not under
formal arrest, and was questioned by officers during the
routine course of an accident investigation. Although it
is not dispositive, [the defendant] did not incriminate
himself in his statement to the police at the hospital, in
which statement he denied being the driver of the vehicle
involved in the accident, the same position he maintained
at trial.
239 Neb. at 510, 476 N.W.2d at 845.
After reviewing the record in the instant case, we likewise
find that the officers’ questioning him was part of their routine
investigation governing this motor vehicle accident and that
Sollman was not in custody. Although the record indicates
Sollman could not remove himself from the room without
assistance, nothing about this record suggests that Sollman’s
statements were not the “‘“product of a rational intellect and
a free will”’” or that the officers’ questioning or conduct here
rose to the level of a custodial interrogation. See Mincey v.
Arizona, 437 U.S. at 398. We also note that although not dis-
positive, Sollman’s statements were likewise not incriminating,
insofar as he denied drinking alcohol immediately prior to the
accident. We hold that the district court did not err in overrul-
ing Sollman’s motion to suppress his statements made from the
hospital or admitting those same statements during the course
of the trial.
6. Excessive Sentences
Sollman’s final assignment of error is that the sentences
imposed are excessive.
Sollman was convicted of count 1, motor vehicle homi-
cide—DUI, a Class IIA felony; count 2, DUI, a Class W
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Cite as 29 Neb. App. 356misdemeanor; and count 3, reckless driving, a Class III mis-
demeanor. See, § 28-306(3)(b) (motor vehicle homicide);
§ 60-6,196 (DUI); § 60-6,213 (reckless driving). Sollman
was sentenced to 14 to 20 years’ imprisonment and a 15-year
license revocation on count 1, which sentence is within the
statutory sentencing range for Class IIA felonies of 0 to 20
years’ imprisonment. See Neb. Rev. Stat. § 28-105 (Cum. Supp.
2018). Additionally, the court properly revoked Sollman’s driv-
er’s license for a period of 15 years as is required pursuant to
§ 28-306(3)(b).
On count 2, the court sentenced Sollman to 60 days’ impris-
onment and fined him $500, which sentence is within the statu-
tory sentencing range for Class W misdemeanors, which are
punishable by a mandatory minimum of 7 days’ imprisonment
and a $500 fine and a maximum of 60 days’ imprisonment and
a $500 fine. See Neb. Rev. Stat. § 28-106 (Reissue 2016). The
court also revoked Sollman’s license for 6 months as required
by Neb. Rev. Stat. § 60-6,197.03 (Cum. Supp. 2018).
For count 3, reckless driving, the district court sentenced
Sollman to 90 days’ imprisonment. See § 60-6,213. This sen-
tence is within the statutory sentencing range for Class III
misdemeanors, which are punishable by 0 to 3 months’ impris-
onment and/or a $500 fine. See § 28-106.
[39-41] Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discre-
tion in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence to
be imposed. State v. Montoya, 305 Neb. 581, 941 N.W.2d 474(2020). In determining a sentence to be imposed, relevant fac-
tors customarily considered and applied are 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. Id. However, the
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Cite as 29 Neb. App. 356sentencing court is not limited to any mathematically applied
set of factors. State v. Manjikian, 303 Neb. 100, 927 N.W.2d
48 (2019). The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge’s obser-
vation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. State
v. Montoya, supra.
Here, at the sentencing hearing, the district court stated
that it had considered the contents of the PSR, including
documentation that Sollman was 46 years old at the time
of the PSR, was married, and had nine dependent children;
Sollman’s criminal history and LS/CMI scores; the comments
made at sentencing; the circumstances surrounding the acci-
dent, including Sollman’s intoxication level and speed; and the
seriousness of the crimes committed by Sollman. The district
court also noted that Sollman blamed the victim for the acci-
dent and that the court found Nowling’s account of the events
leading up to the accident credible. Further, the court reviewed
law enforcement’s accident reconstruction and calculations,
which determined the accident was caused by speeding, but
the court noted, “The accident was [caused by] an intoxication
level more than two times the legal limit, excessive speeding
and erratic driving all the way up to the point in time this
occurred.” The district court further found that imprisonment
was necessary to protect the public due to the substantial risk
that Sollman would engage in additional criminal conduct if
placed on probation and “a lesser sentence would depreci-
ate the seriousness of the offense or promote disrespect of
the law.”
The PSR indicated that Sollman’s criminal history includes a
conviction for theft in Indiana and charges of robbery, criminal
mischief, and kidnapping in Oregon for which Sollman was
fined, sentenced to 90 days’ imprisonment, and given 5 years’
probation. Further, Sollman’s LS/CMI scores were assessed
to be in the “Medium/Low risk range to reoffend” (empha-
sis omitted). However, the probation officer completing the
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Cite as 29 Neb. App. 356PSR noted that Sollman “does not feel [Clausen] is a victim.
He regrets his action of drinking the night of [the accident],
but does not feel he has done anything else wrong.” Sollman’s
victim-blaming is evident in his defendant’s statement, which
set forth in pertinent part:
I was involved in a car accident where I had been
drinking. Unfortunately[, the victim] pulled out from a
stop sign to turn left right in front of me when I was
southbound on HWY 6 and had right away [sic]. I was
seriously injured and [a]ir lifted from the scene and she
sadly died.
Based upon the district court’s thorough consideration of
the relevant factors and the information contained in the PSR;
the fact that the sentences imposed were within the relevant
statutory sentencing ranges; Sollman’s criminal history; his
risk to reoffend; the circumstances surrounding the accident,
including Sollman’s intoxication level and speed; Sollman’s
refusal to accept responsibility for his role in the offenses and
continual victim-blaming; and the seriousness of the crimes
committed by Sollman which resulted in the death of the vic-
tim, we determine the sentences imposed were not an abuse
of discretion.
VI. CONCLUSION
Having considered and rejected Sollman’s assigned errors,
we affirm his convictions and sentences.
Affirmed.