State v. Ferguson , 301 Neb. 697 ( 2018 )


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    Nebraska Supreme Court A dvance Sheets
    301 Nebraska R eports
    STATE v. FERGUSON
    Cite as 
    301 Neb. 697
    State of Nebraska, appellee, v.
    Travis L. Ferguson, appellant.
    ___ N.W.2d ___
    Filed November 30, 2018.   No. S-17-1197.
    1.	 Constitutional Law: Search and Seizure: Motions to Suppress:
    Appeal and Error. When 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 histori-
    cal facts, an appellate court reviews the trial court’s findings for clear
    error, but whether those facts trigger or violate Fourth Amendment
    protections is a question of law that an appellate court reviews indepen-
    dently of the trial court’s determination.
    2.	 Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
    under the residual hearsay exception, an appellate court reviews for
    clear error the factual findings underpinning a trial court’s hearsay rul-
    ing and reviews de novo the court’s ultimate determination whether the
    court admitted evidence over a hearsay objection or excluded evidence
    on hearsay grounds.
    3.	 Trial: Evidence: Appeal and Error. An appellate court reviews the
    trial court’s conclusions with regard to evidentiary foundation for an
    abuse of discretion.
    4.	 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. 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.
    5.	 Sentences: Appeal and Error. An appellate court will not disturb a sen-
    tence imposed within the statutory limits absent an abuse of discretion
    by the trial court.
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    STATE v. FERGUSON
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    6.	 Constitutional Law: Search and Seizure. The Fourth Amendment to
    the U.S. Constitution and article I, § 7, of the Nebraska Constitution
    guarantee against unreasonable searches and seizures.
    7.	 Search and Seizure: Evidence: Trial. Evidence obtained as the fruit
    of an illegal search or seizure is inadmissible in a state prosecution and
    must be excluded.
    8.	 Constitutional Law: Search and Seizure. The ultimate touchstone of
    the Fourth Amendment is reasonableness.
    9.	 ____: ____. Reasonableness is determined by balancing the intrusion on
    the individual’s Fourth Amendment interests against the promotion of
    legitimate governmental interests.
    10.	 ____: ____. A seizure that is lawful at its inception can violate the
    Fourth Amendment by its manner of execution.
    11.	 ____: ____. A “search” under the Fourth Amendment occurs if either (1)
    the defendant’s legitimate expectation of privacy is infringed or (2) the
    government physically intrudes on a protected area.
    12.	 Constitutional Law: Search and Seizure: Words and Phrases. A
    reasonable expectation of privacy is an expectation that has a source
    outside of the Fourth Amendment, by reference either to concepts of real
    or personal property law or to understandings that are recognized and
    permitted by society.
    13.	 Constitutional Law: Search and Seizure: Animals. Drug detection
    dog sniffs in themselves do not infringe upon a constitutionally pro-
    tected privacy interest, because they are designed to reveal no informa-
    tion other than the possession of contraband and its location, and society
    is not prepared to consider as either reasonable or legitimate any sub-
    jective expectation that possession of contraband will not come to the
    attention of the authorities.
    14.	 Investigative Stops: Motor Vehicles: Animals: Time. The tolerable
    duration of a traffic stop is that which is reasonably necessary to address
    the mission of the stop and the ordinary inquiries incident thereto, and a
    drug detection dog sniff is not an ordinary incident of a traffic stop.
    15.	 Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
    Animals: Probable Cause. Where a law enforcement officer has prob-
    able cause or reasonable suspicion to continue the detention after the
    initial mission of the stop is completed, the officer may conduct a drug
    detection dog sniff while the suspect is properly detained.
    16.	 Arrests: Probable Cause: Time: Proof. Judicial probable cause deter-
    minations must be made promptly after a warrantless arrest, and unrea-
    sonable delays in such judicial determinations of probable cause include
    delays for the purpose of gathering additional evidence to justify the
    arrest. However, the arrested individual bears the burden of proving the
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    STATE v. FERGUSON
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    301 Neb. 697
    delay was unreasonable when the probable cause determination occurs
    within 48 hours.
    17.	   Rules of Evidence: Hearsay: Words and Phrases. Hearsay is a state-
    ment, other than one made by the declarant while testifying at trial or
    hearing, offered in evidence to prove the truth of the matter asserted.
    18.	   Rules of Evidence: Hearsay: Testimony: Records: Proof. Testimony
    as to the content of records, entered into evidence to prove the truth of
    the information contained therein, is hearsay.
    19.	   Rules of Evidence: Rules of the Supreme Court: Hearsay. Hearsay is
    not admissible except as provided by the rules of evidence or by other
    rules adopted by the statutes of the State of Nebraska or by the discov-
    ery rules of the Nebraska Supreme Court.
    20.	   Hearsay: Proof. The proponent of the hearsay evidence has the burden
    of identifying the appropriate exception and demonstrating that the tes-
    timony falls within it.
    21.	   Trial: Hearsay: Evidence: Appeal and Error. When the opposing
    party objects to evidence as hearsay and the trial court sustains the
    objection, the proponent is required to point out the possible hearsay
    exceptions in order to preserve the point for appeal.
    22.	   Trial: Evidence: Witnesses. There is sufficient foundation to render
    communications by telephone admissible in evidence where the identity
    of the person with whom the witness spoke or the person whom he or
    she heard speak is satisfactorily established.
    23.	   ____: ____: ____. A witness testifying positively that he or she recog-
    nized, by voice, the person with whom he or she was talking, is gener-
    ally sufficient to present the evidence to the jury to determine whether
    the conversation actually occurred.
    24.	   Criminal Law: Juries: Verdicts: Presumptions. Jurors in a criminal
    case are presumed well equipped to analyze the evidence in order to
    avoid resting a guilty verdict on a factually inadequate theory.
    25.	   Juries: Verdicts: Appeal and Error. If there are two possible factual
    grounds for the jury’s general verdict, one factually inadequate and
    unreasonable and the other factually adequate and reasonable, an appel-
    late court will assume, absent a contrary indication in the record, that the
    jury based its verdict on the reasonable and factually adequate ground.
    Appeal from the District Court for Lancaster County: Jodi L.
    Nelson, Judge. Affirmed.
    Candice C. Wooster, of Brennan & Nielsen Law Offices,
    P.C., for appellant.
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    STATE v. FERGUSON
    Cite as 
    301 Neb. 697
    Douglas J. Peterson, Attorney General, and Austin N. Relph
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    I. NATURE OF CASE
    The defendant appeals his convictions for possession of a
    controlled substance and child abuse. The defendant was driv-
    ing a vehicle owned by the defendant’s girlfriend when he
    was stopped by law enforcement to investigate a citizen report
    of dangerous driving. The stop occurred at a gas station. The
    defendant’s two young children were in the back seat of the
    vehicle. Methamphetamine was found during a search of the
    vehicle, which was conducted subsequent to a drug detection
    dog sniff. The dog sniff took place approximately 30 minutes
    after law enforcement had completed their routine investiga-
    tion related to the stop and had discovered that the defendant
    was driving with a suspended license, had given them false
    information, and had an outstanding civil contempt warrant for
    his arrest. The principle issue presented is whether continuing
    the defendant’s detention at the gas station beyond the time
    reasonably necessary to complete the traffic stop’s mission of
    investigating the report of dangerous driving constituted an
    unreasonable seizure when the detention occurred after law
    enforcement had probable cause to arrest the defendant.
    II. BACKGROUND
    Travis L. Ferguson was charged with one count of posses-
    sion of a controlled substance in violation of 
    Neb. Rev. Stat. § 28-416
    (3) (Supp. 2015); one count of false reporting in vio-
    lation of 
    Neb. Rev. Stat. § 28-907
    (1) (Reissue 2016); and one
    count of child abuse in violation of 
    Neb. Rev. Stat. § 28-707
    (1)
    and (3) (Reissue 2016)—specifically, that Ferguson, acting
    negligently, had placed his minor children, ages 8 and 6 at the
    time of the stop, in a situation that endangered their lives or
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    physical or mental health, or deprived them of necessary food,
    clothing, shelter, or care. The charges stem from the events
    of March 9, 2016. Ferguson was driving his girlfriend’s 1998
    four-door silver Honda Accord sedan with his children in the
    back seat. He was stopped by law enforcement after another
    driver called the 911 emergency dispatch service to report dan-
    gerous driving, and methamphetamine was eventually found
    inside the vehicle.
    1. Motion to Suppress
    Before trial, Ferguson moved to suppress any and all evi-
    dence and statements obtained by law enforcement on March
    9, 2016, for the reason that they were allegedly obtained in
    violation of Ferguson’s constitutional rights under the 4th,
    5th, 6th, and 14th Amendments to the U.S. Constitution and
    the respective guarantees of the Constitution of the State of
    Nebraska. The following evidence was adduced at the hearing
    on the motion.
    (a) Traffic Stop
    Around 5 p.m. on March 9, 2016, Bradley Kinzie called
    911 to report a vehicle swerving on Highway 77. The vehicle
    was described as a gray, four-door sedan moving northbound
    from Roca Road in Lancaster County, Nebraska. Kinzie also
    reported the vehicle’s license plate number.
    Deputy Sheriff Jeremy Schwarz was in his cruiser headed
    southbound on Highway 77 in the same general vicinity when
    he received the report of the 911 call. One or two minutes
    later, Schwarz saw a man in a vehicle headed northbound on
    Highway 77 behind a white, four-door sedan using hand ges-
    tures to emphatically direct Schwarz’ attention to the sedan.
    Schwarz understood, and it was later confirmed, that the
    man gesturing was the 911 caller and the sedan was the vehi-
    cle reported.
    Schwarz made a U-turn to pursue the vehicle. The vehicle
    pulled into a gas station before he could catch up with it.
    Schwarz pulled up behind the vehicle. Schwarz confirmed
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    that the license plate number was only one digit off from the
    number reported during the 911 call. Schwarz activated the
    cruiser’s overhead lights.
    At 5:05 p.m., Schwarz exited the cruiser and approached
    the driver of the vehicle, who was later identified as Ferguson.
    Schwarz observed two children in the back seat. Ferguson
    informed Schwarz that he did not have his driver’s license with
    him. Ferguson acknowledged that he was tired and had been
    swerving the vehicle.
    Ferguson originally identified himself using his brother’s
    name. In the databases accessed through the mobile data ter-
    minal of his cruiser, Schwarz could not find a person with that
    name who matched the other information given by Ferguson.
    At 5:16 p.m., Ferguson was asked to sit in the cruiser
    while Schwarz further investigated Ferguson’s identity. During
    the pat-down search conducted before entering the cruiser,
    Schwarz found Ferguson’s electronic benefit transfer card
    which included his real name. By 5:22 p.m., Schwarz was able
    to confirm Ferguson’s identity through the databases, which
    revealed that Ferguson had a suspended driver’s license and an
    outstanding warrant for civil contempt related to unpaid child
    support. At approximately that same time, Schwarz learned the
    identity of the children’s mother.
    (b) Probable Cause
    Schwarz described that he had probable cause to arrest
    Ferguson both for driving with a suspended license and on the
    child support warrant.
    Ferguson’s criminal history also caused Schwarz to suspect
    that there might be narcotics in the sedan. Ferguson denied
    consent to search the vehicle.
    Schwarz did not transport Ferguson immediately to the
    police station, because he was trying to make arrangements
    for the children to be picked up by their mother and for
    Lindsey Koch, the owner of the vehicle, to pick it up. Schwarz
    contacted the children’s mother, who agreed to pick up the
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    STATE v. FERGUSON
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    children, but she lived 30 to 45 minutes away. Two offi-
    cers who had arrived at the scene took the children out of
    the vehicle and into the convenience store for snacks while
    they waited.
    (c) Dog Sniff and
    Subsequent Search
    At 5:25 p.m., approximately the same time that Schwarz
    contacted the children’s mother, he decided to call in a canine
    unit to conduct a dog sniff of the vehicle. Schwarz asked
    Koch for her consent to the search, explaining that the canine
    unit was on its way, but she refused. Koch agreed to pick
    up her vehicle at the gas station. The canine unit arrived
    approximately 30 minutes after Schwarz called it in. When the
    canine unit arrived, neither Koch nor the children’s mother had
    yet arrived.
    The dog sniff was conducted around the exterior of the
    sedan, and the dog alerted to the odor of narcotics. After that,
    the officers searched the sedan and found a plastic bag of what
    appeared to be methamphetamine on the driver’s side floor-
    board between the center console and the driver’s seat. At trial,
    the parties stipulated that the bag found in the sedan contained
    approximately 1.6 grams of methamphetamine.
    Approximately 15 minutes after the search of the sedan had
    been completed, Koch arrived and removed the vehicle from
    the premises. Five minutes later, the children’s mother arrived
    and the children were turned over to her. Ferguson was then
    taken to jail.
    (d) Court’s Ruling
    In support of the motion to suppress, defense counsel argued
    that prolonging the stop while waiting for Koch and the canine
    unit to arrive was unreasonable, because the officers were no
    longer handling the matter for which the stop was initially
    made. Defense counsel also argued that the search was not
    incident to arrest. Without addressing Ferguson’s suspended
    license, defense counsel argued that if Ferguson would have
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    STATE v. FERGUSON
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    301 Neb. 697
    been taken to jail sooner, he could have purged himself sooner
    of the civil contempt warrant. Defense counsel explained that
    the delay at the gas station unreasonably denied Ferguson the
    “opportunity to go and bond himself out or purge himself of
    that warrant.” The State responded that the continued detention
    was a “non-issue,” because at that point, there was probable
    cause for Ferguson’s arrest.
    The court denied the motion to suppress. The court granted
    defense counsel’s request for a continuing objection to evi-
    dence of the methamphetamine found in the sedan, and the
    case proceeded to trial.
    2. Evidence Presented at Trial
    (a) Kinzie’s Testimony
    At trial, Kinzie testified that while driving along Highway
    77 on March 9, 2016, he spotted in his rearview mirror a gray,
    four-door Toyota or Mazda sedan behind him. He saw the
    sedan going from one side of the road to the other. He slowed
    down, and the sedan passed him. While passing him, the sedan
    encroached into Kinzie’s lane so much that he had to drive on
    the curb in order to avoid a collision.
    Kinzie watched as the sedan, driving at that point in front of
    him, veered past the white line of the right-hand lane and back
    into the left-hand lane. The sedan then proceeded to encroach
    into the right-hand lane again, even though there was another
    vehicle in its path. The sedan pushed that vehicle off the road
    and into a ditch.
    After ensuring that the people in the vehicle that went off
    the road were “okay,” Kinzie called 911. Kinzie described see-
    ing a police cruiser soon thereafter and pointing out the sedan
    to the law enforcement officer. While stopped at a red light,
    Kinzie witnessed the cruiser follow the sedan to a nearby gas
    station and park behind it.
    The speed limit in that area of Highway 77 was 65 miles
    per hour. It was rush-hour traffic. Kinzie testified that both he
    and the driver of the other vehicle were forced to take evasive
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    action to avoid colliding with the sedan, stating, “At least
    nobody was killed. That’s the main thing.”
    (b) Schwarz’ Testimony and
    Motion in Limine
    At trial, Schwarz reiterated much of his testimony given at
    the hearing on the motion to suppress. Schwarz also described
    that when he approached the sedan, the children in the back
    seat were moving around and not completely buckled in.
    Schwarz testified that the children had access to the area by
    the floorboards where the methamphetamine was found and
    that they were apparently in the sedan alone for a brief period
    of time after Schwarz directed Ferguson into his cruiser for
    further investigation as to his identity.
    Schwarz testified that he had received extensive training in
    narcotics. According to Schwarz, methamphetamine is very
    toxic and can be lethal to children if they accidentally ingest
    it. He opined that a child who is within reach of methamphet-
    amine is placed in a situation that endangers the child’s life.
    During a recess, the State moved in limine to prohibit any
    questioning or evidence concerning pending charges against
    Koch originating from an arrest in April 2017, as well as any
    other drug history associated with Koch or her sedan after the
    March 9, 2016, arrest of Ferguson. Defense counsel responded
    that it was part of the theory of Ferguson’s defense to demon-
    strate that the methamphetamine might have belonged to Koch
    or someone else she lent her vehicle to. The court expressed
    concern that any questioning of Schwarz as to the criminal
    record associated with Koch or the sedan would be outside of
    Schwarz’ personal knowledge. The court sustained the motion
    at that point in time, explaining that if defense counsel wanted
    to “get into anything like that,” she was going to have to first
    demonstrate to the court outside the presence of the jury that it
    was admissible.
    Subsequently, defense counsel questioned Schwarz outside
    the presence of the jury as a proffer of “what he knows about
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    the vehicle.” Schwarz testified that during the stop, he had run
    the license plate of the vehicle through the databases he had
    access to. That information, he explained, would be found in
    his report, but he recalled a prior arrest of Koch for possession
    of methamphetamine. He could not specifically recall any-
    thing else. During cross-examination for the proffer, Schwarz
    affirmed that his report described other prior arrests for posses-
    sion of a controlled substance in relation to the vehicle.
    At the close of the proffer, the State objected on the grounds
    of hearsay, relevance, unfair prejudice, and improper use of
    character evidence for impeachment. The State explained
    that the prior criminal history of Koch or her vehicle was
    not relevant to the events of March 9, 2016, and that it
    would improperly suggest that, because she had possessed
    methamphetamine in the past, Koch was not telling the truth
    about the methamphetamine found on March 9 when she
    stated it did not belong to her. Defense counsel did not sug-
    gest that the proffered statement fell under an exception to
    the hearsay rule. The court sustained the objection on the
    ground of hearsay, and did not specifically address the other
    grounds presented.
    (c) Children’s Mother’s Testimony
    and Foundation Objection
    The children’s mother testified without objection that the
    older child reported that Ferguson had been falling asleep at
    the wheel that day.
    The children’s mother testified further that she and Ferguson
    had a telephone conversation about his arrest a week or so
    after Ferguson was released from jail, which she said was
    in April 2016. She described that she was at home. No one
    else was around at the time, and she did not know where
    Ferguson was calling from. She confirmed that, as a result of
    having previously dated Ferguson for 8 years, she had talked
    to him on the telephone previously and knew the sound of
    his voice.
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    Defense counsel objected on foundation grounds to any
    further testimony about the telephone conversation. Defense
    counsel explained that the State had failed to present evidence
    as to both parties’ locations or precise information about when
    it took place. The court overruled the objection.
    The children’s mother proceeded to testify that during the
    conversation, Ferguson apologized for his actions that had
    caused the Department of Health and Human Services to make
    inquiries into the children’s welfare. Ferguson explained that
    he thought he had left the methamphetamine at home.
    (d) Koch’s Testimony
    Koch testified that after she had agreed to lend Ferguson
    her car in order for him to be able to go see his children, she
    spent about an hour cleaning it. She testified that her car was
    normally very messy and that she wanted to make sure there
    was room for the children and there was nothing “dangerous”
    in the car. She denied placing any methamphetamine in the car
    on March 9, 2016, and she denied that the methamphetamine
    found in the car on that date was hers. Koch admitted that dur-
    ing that general period of time, it was not unusual for her to
    allow others to borrow her car, but clarified that no one had
    borrowed her car from the time she cleaned it until the time
    that Ferguson drove it to go see his children on March 9.
    (e) Ferguson’s Testimony
    Ferguson testified in his own defense. He generally denied
    the allegations against him, except that he admitted he lied to
    Schwarz when he identified himself as his brother rather than
    as himself. He admitted to swerving his vehicle, because he
    was tired, and he explained that he had been helping one of his
    children with her seatbelt. He denied having any knowledge
    that there were drugs in the vehicle. He conceded that children
    can get hurt when they are within reach of methamphetamine.
    3. Verdict
    The jury found Ferguson guilty of all three charges.
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    4. Sentences
    The court sentenced Ferguson to 365 days of imprisonment
    and 12 months of postrelease supervision on count 1. The court
    sentenced Ferguson to 90 days of imprisonment on count 2,
    to be served consecutively to count 1. On count 3, the court
    sentenced Ferguson to 30 days of imprisonment, to be served
    concurrently to counts 1 and 2.
    The court explained that it was not placing Ferguson on
    probation because he did not appear to be capable of complet-
    ing probation successfully. The court explained that Ferguson
    was being sentenced to jail time, not to prison, and that if
    he were given probation instead, he would likely engage in
    criminal conduct in violation of the terms of his probation
    and face a prison sentence. The court noted Ferguson’s his-
    tory during the proceedings of not showing up to court and not
    going to his probation evaluation on time. The court further
    noted that Ferguson was convicted of other crimes committed
    while awaiting trial. The record contains a bench warrant for
    Ferguson’s failure to appear. Ferguson agreed that he would
    likely fail probation.
    Ferguson appeals his convictions for child abuse and posses-
    sion of a controlled substance and his sentences.
    III. ASSIGNMENTS OF ERROR
    Ferguson assigns that the district court erred by (1) overrul-
    ing his motion to suppress, (2) refusing to admit evidence that
    the vehicle he was driving had previously been involved in
    drug convictions, (3) admitting evidence of a telephone conver-
    sation between Ferguson and the children’s mother, (4) finding
    the evidence sufficient to support the child abuse conviction,
    and (5) imposing excessive sentences.
    IV. STANDARD OF REVIEW
    [1] When 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
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    review.1 Regarding historical facts, an appellate court reviews
    the trial court’s findings for clear error, but whether those facts
    trigger or violate Fourth Amendment protections is a question
    of law that an appellate court reviews independently of the
    trial court’s determination.2
    [2] Apart from rulings under the residual hearsay exception,
    an appellate court reviews for clear error the factual findings
    underpinning a trial court’s hearsay ruling and reviews de novo
    the court’s ultimate determination whether the court admitted
    evidence over a hearsay objection or excluded evidence on
    hearsay grounds.3
    [3] An appellate court reviews the trial court’s conclu-
    sions with regard to evidentiary foundation for an abuse of
    discretion.4
    [4] 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.5 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
    [5] An appellate court will not disturb a sentence imposed
    within the statutory limits absent an abuse of discretion by the
    trial court.7
    1
    State v. Barbeau, ante p. 293, 
    917 N.W.2d 913
     (2018).
    2
    
    Id.
    3
    State v. Mora, 
    298 Neb. 185
    , 
    903 N.W.2d 244
     (2017).
    4
    Midland Properties v. Wells Fargo, 
    296 Neb. 407
    , 
    893 N.W.2d 460
     (2017).
    5
    State v. McCurdy, ante p. 343, 
    918 N.W.2d 292
     (2018).
    6
    
    Id.
    7
    State v. Swindle, 
    300 Neb. 734
    , 
    915 N.W.2d 795
     (2018).
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    V. ANALYSIS
    On appeal, Ferguson challenges the denial of his motion
    to suppress, which sought to prevent the jury from consider-
    ing the methamphetamine found in Koch’s vehicle. He also
    asserts that the district court erred in sustaining the State’s
    hearsay objection to the proposed testimony of Schwarz
    regarding his recollection of the criminal records associated
    with Koch’s vehicle. He asserts, further, that the court should
    not have allowed into evidence over Ferguson’s foundation
    objection statements made by Ferguson during a telephone
    conversation. Lastly, Ferguson argues that there was insuf-
    ficient evidence to support the conviction for child abuse
    and that his sentences to jail time rather than probation
    were excessive.
    1. Motion to Suppress
    We first address the motion to suppress, which alleged that
    the discovery of the methamphetamine in the vehicle Ferguson
    was driving was the product of an illegal search and seizure.
    Ferguson does not contest that Schwarz had reasonable suspi-
    cion for conducting the traffic stop, that Schwarz had probable
    cause to arrest Ferguson by the time the dog sniff of the vehi-
    cle occurred, or that the officers had probable cause to search
    inside the vehicle once the dog alerted to the presence of ille-
    gal substances inside. In arguing that there was an unreason-
    able seizure of Ferguson’s person and an unreasonable search
    of the vehicle, Ferguson instead focuses on the length and
    place of his detention and the fact that the search and seizure
    occurred after Schwarz had completed all inquiries incident to
    the citizen report of dangerous driving.
    [6-10] The Fourth Amendment to the U.S. Constitution and
    article I, § 7, of the Nebraska Constitution guarantee against
    unreasonable searches and seizures.8 Evidence obtained as the
    fruit of an illegal search or seizure is inadmissible in a state
    8
    State v. Avey, 
    288 Neb. 233
    , 
    846 N.W.2d 662
     (2014).
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    prosecution and must be excluded.9 The ultimate touchstone
    of the Fourth Amendment is reasonableness.10 Reasonableness
    is determined by balancing the intrusion on the individual’s
    Fourth Amendment interests against the promotion of legiti-
    mate governmental interests.11 A seizure that is lawful at its
    inception can violate the Fourth Amendment by its manner
    of execution.12
    In asserting that his seizure, lawful at its inception, was
    unreasonable, Ferguson relies chiefly upon the holding of
    the U.S. Supreme Court in Rodriguez v. U.S.13 that a seizure
    justified by a legitimate traffic stop becomes unlawful if pro-
    longed beyond the time reasonably required to complete the
    mission of the stop.14 Ferguson has taken this proposition out
    of context.
    The U.S. Supreme Court has explained that the Fourth
    Amendment tolerates certain investigations unrelated to the
    traffic stop, so long as those investigations do not lengthen the
    roadside detention.15 Before Rodriguez, in Illinois v. Caballes,16
    the U.S. Supreme Court held that a dog sniff unsupported by
    reasonable suspicion or probable cause was nevertheless rea-
    sonable when conducted while the driver was lawfully seized
    during a traffic stop and where the duration of the stop was
    9
    State v. Wells, 
    290 Neb. 186
    , 
    859 N.W.2d 316
     (2015).
    10
    Brigham City v. Stuart, 
    547 U.S. 398
    , 
    126 S. Ct. 1943
    , 
    164 L. Ed. 2d 650
    (2006).
    11
    Maryland v. Buie, 
    494 U.S. 325
    , 
    110 S. Ct. 1093
    , 
    108 L. Ed. 2d 276
    (1990).
    12
    See Illinois v. Caballes, 
    543 U.S. 405
    , 
    125 S. Ct. 834
    , 
    160 L. Ed. 2d 842
    (2005).
    13
    Rodriguez v. U.S., ___ U.S. ___, 
    135 S. Ct. 1609
    , 
    191 L. Ed. 2d 492
    (2015). See, also, State v. Barbeau, supra note 1.
    14
    See, Rodriguez v. U.S., supra note 13; Illinois v. Caballes, 
    supra note 12
    .
    15
    Arizona v. Johnson, 
    555 U.S. 323
    , 
    129 S. Ct. 781
    , 
    172 L. Ed. 2d 694
    (2009). See, also, e.g., Illinois v. Caballes, 
    supra note 12
    .
    16
    Illinois v. Caballes, 
    supra note 12
    .
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    justified by the traffic offense and the ordinary inquiries inci-
    dent thereto.
    [11-13] The Court in Caballes held that the dog sniff, con-
    ducted around the exterior of a vehicle without physically
    intruding into a constitutionally protected area17 or prolonging
    the seizure, did not change the lawful character of the traf-
    fic stop.18 This was because a dog sniff, in itself, does not
    infringe upon the driver’s constitutionally protected interest in
    privacy.19 A “search” under the Fourth Amendment occurs if
    either (1) the defendant’s legitimate expectation of privacy is
    infringed or (2) the government physically intrudes on a pro-
    tected area.20 A reasonable expectation of privacy is an expec-
    tation that has a source outside of the Fourth Amendment, by
    reference either to concepts of real or personal property law
    or to understandings that are recognized and permitted by
    society.21 The Court in Caballes explained that drug detection
    dog sniffs in themselves do not infringe upon a constitutionally
    protected privacy interest, because they are designed to reveal
    no information other than the possession of contraband and its
    location.22 And society, the Court explained, is not prepared
    to consider as either reasonable or legitimate any subjective
    expectation that possession of contraband will not come to the
    attention of the authorities.23
    [14] Subsequently, in Rodriguez, the U.S. Supreme Court
    addressed the seizure of the driver and the vehicle in order to
    conduct a dog sniff after the traffic stop had been completed.24
    17
    Compare Florida v. Jardines, 
    569 U.S. 1
    , 
    133 S. Ct. 1409
    , 
    185 L. Ed. 2d 495
     (2013).
    18
    See Illinois v. Caballes, 
    supra note 12
    .
    19
    See 
    id.
    20
    City of Beatrice v. Meints, 
    289 Neb. 558
    , 
    856 N.W.2d 410
     (2014).
    21
    State v. Wiedeman, 
    286 Neb. 193
    , 
    835 N.W.2d 698
     (2013).
    22
    Illinois v. Caballes, 
    supra note 12
    .
    23
    
    Id.
    24
    Rodriguez v. U.S., supra note 13. See, also, State v. Barbeau, supra note 1.
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    The U.S. Supreme Court reiterated that the tolerable dura-
    tion of a traffic stop is that which is reasonably necessary to
    address the mission of the stop and the ordinary inquiries inci-
    dent thereto, and it clarified that a drug detection dog sniff is
    not an ordinary incident of a traffic stop.25 Since it was undis-
    puted in Rodriguez that the delay for purposes of conducting
    the dog sniff occurred beyond the time reasonably necessary
    to complete the tasks tied to the traffic infraction that justi-
    fied the stop, the Court vacated the circuit court’s judgment,
    which had held that the prolonged seizure was an accept-
    able de minimis intrusion. The Court noted, however, that it
    remained open for the circuit court on remand to determine
    whether reasonable suspicion of criminal activity justified
    detaining the driver beyond completion of the traffic infrac-
    tion investigation.
    [15] Read together, Caballes and Rodriguez instruct that
    the fact that a dog sniff is conducted after the time reason-
    ably required to complete the initial mission of a traffic stop is
    not, in and of itself, a Fourth Amendment violation. A Fourth
    Amendment violation arises only when the dog sniff is con-
    ducted after the initial mission of a stop is completed and the
    officer lacks probable cause or reasonable suspicion to investi-
    gate further. Where, on the other hand, the officer has probable
    cause or reasonable suspicion to continue the detention after
    the initial mission of the stop is completed, the officer may
    conduct a drug detection dog sniff while the suspect is properly
    detained. We accordingly held in State v. Verling 26 and State v.
    Rogers 27 that seizures that took place in order to facilitate dog
    sniffs after the completion of traffic infraction investigations
    did not violate the Fourth Amendment when the officers had
    reasonable suspicion of criminal activity, developed during the
    ordinary inquiries incident to the stops.
    25
    See 
    id.
    26
    State v. Verling, 
    269 Neb. 610
    , 
    694 N.W.2d 632
     (2005).
    27
    State v. Rogers, 
    297 Neb. 265
    , 
    899 N.W.2d 626
     (2017).
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    Like in Verling and Rogers, Ferguson’s detention at the
    time of the dog sniff was independently justified. It was no
    longer the temporary detention associated with an investi-
    gatory stop, but was a tier-three encounter that necessar-
    ily entails a prolonged detention.28 That prolonged detention
    was supported by probable cause for the officers to believe,
    based on information lawfully obtained during the stop, that
    Ferguson had committed the law violations of driving with
    a suspended license and giving false information to a police
    officer. Additionally, the prolonged detention was supported
    by a contempt warrant for Ferguson’s arrest. We find no
    merit to Ferguson’s argument that the dog sniff was unlawful
    because it occurred past the time necessary to investigate the
    reported traffic violation.
    Ferguson also argues that the prolonged seizure was con-
    ducted in an unlawful manner because of the place where
    he was being detained. He suggests that rather than being
    detained at the gas station, “Ferguson should have immedi-
    ately been taken to the jail to begin the booking process and
    to allow Ferguson the opportunity to attempt to get his child
    support payments up to date.”29 He argues that he was unrea-
    sonably detained at the gas station in order to facilitate the
    dog sniff.
    [16] The U.S. Supreme Court has held that judicial probable
    cause determinations must be made promptly after a warrant-
    less arrest and, further, that unreasonable delays in such judi-
    cial determinations of probable cause include delays for the
    purpose of gathering additional evidence to justify the arrest.30
    However, the Court has also held in this context that the
    arrested individual bears the burden of proving the delay was
    unreasonable when the probable cause determination occurs
    28
    See State v. Petsch, 
    300 Neb. 401
    , 
    914 N.W.2d 448
     (2018).
    29
    Brief for appellant at 13.
    30
    County of Riverside v. McLaughlin, 
    500 U.S. 44
    , 
    111 S. Ct. 1661
    , 
    114 L. Ed. 2d 49
     (1991).
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    within 48 hours.31 Ferguson was arrested under a civil warrant
    issued by a judge and, regardless, he made no attempt to prove
    that a judicial probable cause determination was unreasonably
    delayed by virtue of being held at the gas station for an addi-
    tional 30 minutes.
    Moreover, we fail to comprehend how any delay in reach-
    ing the jail was causally connected to the dog sniff of Koch’s
    vehicle and the resulting discovery of the methamphetamine.
    In other words, his detention at the gas station was not for
    the purpose of gathering additional evidence to justify the
    arrest and, further, there is no evidence that the methamphet-
    amine was derivative32 of Ferguson’s detention at the gas
    station rather than at the jail. Regardless of where Ferguson
    was detained, the vehicle would have been parked in a place
    of public access until Koch arrived, which was after the dog
    sniff. Ferguson does not assert that he could have reached
    the jail, been released, and returned to the vehicle before
    Koch arrived.
    Finally, Ferguson suggests that the dog sniff was an unrea-
    sonable “search” of the vehicle, because it was “merely parked
    at a gas station waiting for the owner . . . to arrive.”33 It is not
    clear that Ferguson had “standing” to claim a possessory or
    privacy interest in the borrowed vehicle once he entered into
    a tier-three encounter with law enforcement justified by prob-
    able cause.34 In any event, the dog sniff did not unreasonably
    intrude upon any reasonable expectation of privacy, no matter
    how innocuously the vehicle was parked at the gas station.35
    When the drug detection dog does not physically intrude into a
    constitutionally protected area,36 the dog sniff is not a “search”
    31
    
    Id.
    32
    See State v. Bray, 
    297 Neb. 916
    , 
    902 N.W.2d 98
     (2017).
    33
    Brief for appellant at 13.
    34
    See State v. Lowery, 
    23 Neb. App. 621
    , 
    875 N.W.2d 12
     (2016).
    35
    See Illinois v. Caballes, 
    supra note 12
    .
    36
    Compare Florida v. Jardines, 
    supra note 17
    .
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    at all.37 Ferguson does not suggest that the gas station was a
    constitutionally protected area.
    The district court did not err in denying Ferguson’s motion
    to suppress.
    2. Sustaining Hearsay
    Objection R egarding
    Koch’s Criminal History
    [17] We turn next to Ferguson’s contention that the court
    should have allowed him to adduce testimony from Schwarz
    that Koch’s vehicle had been involved in prior drug possession
    charges not involving Ferguson. The court sustained the State’s
    objection to the proposed testimony on the ground of hearsay.
    Hearsay is a statement, other than one made by the declarant
    while testifying at trial or hearing, offered in evidence to prove
    the truth of the matter asserted.38
    [18] Ferguson asserts that Schwarz’ testimony as to what
    he discovered while running a records search for the vehicle
    was not hearsay. He cites to no law in support of such proposi-
    tion. Our courts have repeatedly held that testimony as to the
    content of records, entered into evidence to prove the truth
    of the information contained therein, is hearsay.39 Ferguson’s
    theory of defense was that the methamphetamine belonged to
    someone else. Schwarz’ testimony of what he remembered of
    the content of the databases was proffered for the truth of the
    matters asserted: that there were other incidents involving ille-
    gal drugs in Koch’s vehicle that did not involve Ferguson. The
    proffered testimony was hearsay.
    [19-21] Hearsay is not admissible except as provided by
    the rules of evidence or by other rules adopted by the statutes
    37
    See Illinois v. Caballes, 
    supra note 12
    .
    38
    State v. Ash, 
    293 Neb. 583
    , 
    878 N.W.2d 569
     (2016).
    39
    See, e.g., State v. Roenfeldt, 
    241 Neb. 30
    , 
    486 N.W.2d 197
     (1992); Hoelck
    v. ICI Americas, Inc., 
    7 Neb. App. 622
    , 584 N.w.2d 52 (1998); State v.
    Ward, 
    1 Neb. App. 558
    , 
    510 N.W.2d 320
     (1993).
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    of the State of Nebraska or by the discovery rules of this
    court.40 Therefore, the proponent of the hearsay evidence has
    the burden of identifying the appropriate exception and dem-
    onstrating that the testimony falls within it.41 When the oppos-
    ing party objects to evidence as hearsay and the trial court
    sustains the objection, the proponent is required to point out
    the possible hearsay exceptions in order to preserve the point
    for appeal.42
    During trial, Ferguson did not identify the appropriate
    exception to the hearsay rule that would render the proffered
    testimony admissible, and he makes no argument on appeal
    that it falls under any exception. Ferguson did not offer
    the records themselves into evidence. We find no merit to
    Ferguson’s argument that the district court erred in refusing
    to allow into evidence Schwarz’ testimony concerning what
    he remembered to be the content of the databases he searched
    during the stop.
    3. Overruling Foundation
    Objection to Telephone
    Conversation
    [22,23] Ferguson next contests the admission into evidence
    of Ferguson’s statements to the children’s mother during a
    telephone conversation. The court overruled Ferguson’s foun-
    dation objection to the testimony. We have long held that there
    is sufficient foundation to render communications by telephone
    admissible in evidence where the identity of the person with
    whom the witness spoke or the person whom he or she heard
    speak is satisfactorily established.43 And a witness testifying
    positively that he or she recognized, by voice, the person with
    40
    State v. Smith, 
    286 Neb. 856
    , 
    839 N.W.2d 333
     (2013).
    41
    State v. Alford, 
    278 Neb. 818
    , 
    774 N.W.2d 394
     (2009).
    42
    
    Id.
    43
    See, Midland Properties v. Wells Fargo, 
    supra note 4
    ; Linch v. Carlson,
    
    156 Neb. 308
    , 
    56 N.W.2d 101
     (1952).
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    whom he or she was talking, is generally sufficient to present
    the evidence to the jury to determine whether the conversation
    actually occurred.44
    While additional evidence as to the surrounding circum-
    stances of the telephone conversation may be necessary where
    the witness was unable to identify the caller by voice,45 that
    was not the circumstance here. The children’s mother testified
    that as a result of having previously dated Ferguson for 8 years,
    she had spoken to him on the telephone before and knew the
    sound of his voice. She testified that she was able to identify
    Ferguson by his voice and that it was Ferguson with whom she
    had been speaking over the telephone. The district court did
    not abuse its discretion in overruling Ferguson’s foundation
    objection to the children’s mother’s testimony.
    4. Sufficiency of Evidence
    Having addressed the assignments of error related to the
    evidentiary rulings at trial, we now consider Ferguson’s argu-
    ment that the evidence was insufficient to support the jury’s
    verdict that he committed child abuse. Ferguson’s challenge to
    his child abuse conviction derives from the possibility the jury
    concluded that the presence of methamphetamine in the vehicle
    within reach of the children—as opposed to Ferguson’s alleged
    reckless driving—was child abuse. Ferguson concedes that the
    evidence that Ferguson was swerving the vehicle all over the
    road was legally sufficient to support his conviction for child
    abuse, but argues that the facts relating to the methamphet-
    amine in the vehicle were not.
    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 appel-
    late court does not resolve conflicts in the evidence, pass on
    the credibility of witnesses, or reweigh the evidence; such
    44
    See 
    id.
    45
    See Midland Properties v. Wells Fargo, 
    supra note 4
    .
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    matters are for the finder of fact.46 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.47
    Section 28-707(1) provides in relevant part that “[a] person
    commits child abuse if he or she knowingly, intentionally, or
    negligently causes or permits a minor child to be: (a) Placed in
    a situation that endangers his or her life or physical or mental
    health.” “Endangers” for purposes of § 28-707(1)(a) means to
    expose a minor child’s life or health to danger or the peril of
    probable harm or loss.48 The purpose of criminalizing conduct
    under the statute is that where a child is endangered, it may be
    injured; it is the likelihood of injury against which the statute
    speaks.49 Criminal endangerment in § 28-707(1)(a) encom-
    passes not only conduct directed at the child but also conduct
    which presents the likelihood of injury due to the child’s having
    been placed in a situation caused by the defendant’s conduct.50
    Ferguson was charged with negligently placing his children
    in a situation that endangered their lives or physical or men-
    tal health under § 28-707(3). Section 28-707(9) explains that
    “negligently” in this context “refers to criminal negligence and
    means that a person knew or should have known of the danger
    involved and acted recklessly, as defined in section 28-109,
    with respect to the safety or health of the minor child.” 
    Neb. Rev. Stat. § 28-109
     (Supp. 2015), in turn, defines “[r]eck-
    lessly” as
    acting with respect to a material element of an offense
    when any person disregards a substantial and unjustifiable
    46
    State v. McCurdy, supra note 5.
    47
    Id.
    48
    State v. Mendez-Osorio, 
    297 Neb. 520
    , 
    900 N.W.2d 776
     (2017); State v.
    Crowdell, 
    234 Neb. 469
    , 
    451 N.W.2d 695
     (1990).
    49
    
    Id.
    50
    
    Id.
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    risk that the material element exists or will result from his
    or her conduct. The risk must be of such a nature and
    degree that, considering the nature and purpose of the
    actor’s conduct and the circumstances known to the actor,
    its disregard involves a gross deviation from the standard
    of conduct that a law-abiding person would observe in
    the actor’s situation.
    Without citation to legal authority, Ferguson argues that
    being within reach of methamphetamine is insufficient to
    support a child abuse conviction, because “[a] child can at
    almost any time reach an object that could be harmful to the
    child if used by the child. For example, knives in a kitchen
    drawer, lighters in a drawer, alcohol in a cabinet, and guns
    on a shelf.”51 Ferguson also points out that the only time the
    children were alone in the vehicle within reach of the metham-
    phetamine was when law enforcement removed Ferguson from
    the vehicle in an attempt to identify him.
    [24,25] We find no merit to Ferguson’s arguments that the
    evidence was insufficient to support the child abuse convic-
    tion. First, Ferguson’s reliance on the inability to know the fac-
    tual theory underlying the jury’s general verdict is misplaced.
    Jurors in a criminal case are presumed well equipped to ana-
    lyze the evidence in order to avoid resting a guilty verdict on
    a factually inadequate theory.52 Thus, if there are two possible
    factual grounds for the jury’s general verdict, one factually
    inadequate and unreasonable and the other factually adequate
    and reasonable, we will assume, absent a contrary indication in
    the record, that the jury based its verdict on the reasonable and
    factually adequate ground.53
    51
    Brief for appellant at 20.
    52
    Griffin v. United States, 
    502 U.S. 46
    , 
    112 S. Ct. 466
    , 
    116 L. Ed. 2d 371
    (1991). See, also, e.g., U.S. v. Richardson, 
    421 F.3d 17
     (1st Cir. 2005).
    53
    See, People v. Guiton, 
    4 Cal. 4th 1116
    , 
    847 P.2d 45
    , 
    17 Cal. Rptr. 2d 365
    (1993); People v. Spaccia, 
    12 Cal. App. 5th 1278
    , 
    220 Cal. Rptr. 3d 65
    (2017).
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    But we also reject the reckless driving and access to meth-
    amphetamine as two disparate factual theories. The jury was
    presented with evidence that on March 9, 2016, Ferguson,
    without a license, drove recklessly and was falling asleep at
    the wheel during rush-hour traffic at a speed of approximately
    65 miles per hour, while his young children, able to unbuckle
    themselves, could have reached for methamphetamine con-
    tained in a bag lying on the floorboard and ingested it. The
    jury was presented with further evidence that Ferguson chose
    to leave the bag of methamphetamine in the vehicle with his
    unattended children while he answered questions in Schwarz’
    cruiser. This evidence was sufficient to support the conviction
    of child abuse.
    Finally, even if we were to parse out the children’s access to
    the methamphetamine from the reckless driving, that evidence
    was legally sufficient to support the child abuse conviction.
    Unlike many of the common household risks illustrated by
    Ferguson, the risk of access to methamphetamine, an illegal
    and toxic substance, involves a gross deviation from the stan-
    dard of conduct that a law-abiding person would observe.
    In Carosi v. Com.,54 the Supreme Court of Virginia rejected
    a similar argument that storage of illegal drugs where chil-
    dren could have obtained access to them was no different than
    the common methods of storing various dangerous household
    items. “[T]hey differ,” the court explained, “in the important
    respect that the latter items, though unquestionably danger-
    ous if left accessible to unsupervised children, are possessed
    by the parent or custodian for lawful purposes, whereas drugs
    that are illegally present . . . are not.”55 The court in Carosi
    further explained:
    The myriad factors to be considered in such cases—such
    as the ages of the children, the length of the exposure,
    the level of supervision or lack thereof, and the quantity
    54
    Carosi v. Com., 
    280 Va. 545
    , 
    701 S.E.2d 441
     (2010).
    55
    
    Id. at 556
    , 
    701 S.E.2d at 447
    .
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    and variety of the drugs—suggest that as with most cases
    where criminal negligence is at issue, this determination
    is necessarily fact-specific [and] best left to the jury.56
    We agree.
    We have explained that “‘[a]s a matter of practicability for
    general application, child abuse statutes, by virtue of the nature
    of their subject matter and the nature of the conduct sought to
    be prohibited, usually contain broad and rather comprehensive
    language.’”57 There was evidence that methamphetamine was
    within reach of the children both while Ferguson was driv-
    ing, tired and distracted, and while they were unattended in
    the stopped vehicle. The jury could have inferred that the
    children, ages 8 and 6, were likely to see the bag of metham-
    phetamine and explore its contents out of curiosity. Schwarz
    testified that he had received extensive training in narcotics
    and that methamphetamine is very toxic and potentially lethal
    to children if they accidentally ingest it. He opined that a child
    who is within reach of methamphetamine is placed in a situa-
    tion that endangers the child’s life.
    Viewing the evidence in the light most favorable to the
    prosecution, a rational trier of fact could have found the essen-
    tial elements of the crime of negligent endangerment child
    abuse beyond a reasonable doubt.58
    5. Excessive Sentences
    Lastly, Ferguson asserts that the court imposed excessive
    sentences. There is no dispute that the sentences imposed were
    within the statutory limits, but Ferguson argues that his sen-
    tences were excessive, because probation would have been bet-
    ter suited to Ferguson’s rehabilitative needs. An appellate court
    will not disturb a sentence imposed within the statutory limits
    56
    Id. at 557, 
    701 S.E.2d at 447-48
    .
    57
    State v. Mendez-Osorio, 
    supra note 48
    , 297 Neb. at 534, 900 N.W.2d at
    786-87, quoting State v. Crowdell, 
    supra note 48
    .
    58
    See State v. Swindle, 
    supra note 7
    .
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    absent an abuse of discretion by the trial court.59 An abuse of
    discretion in imposing a sentence occurs when a sentencing
    court’s reasons or rulings are clearly untenable and unfairly
    deprive the litigant of a substantial right and a just result.60
    The court explained that it was not placing Ferguson on pro-
    bation because he was unlikely to complete probation success-
    fully, given Ferguson’s history during the proceedings of not
    showing up to court and not going to his probation evaluation
    on time. The court further noted that Ferguson was convicted
    of other crimes committed while awaiting trial. Ferguson him-
    self admitted at the sentencing hearing that he would prob-
    ably fail probation. The court did not abuse its discretion in
    sentencing Ferguson to jail time with postrelease supervision,
    rather than to probation.
    VI. CONCLUSION
    For the foregoing reasons, we affirm the judgment of the
    district court.
    A ffirmed.
    59
    
    Id.
    60
    
    Id.