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STATE v. MALONE
Cite as 26 Neb. App. 121
State of Nebraska, appellee, v.
K evin W. M alone, appellant.
___ N.W.2d ___
Filed July 24, 2018. No. A-17-726.
1. 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 elements of the crime beyond a reasonable doubt.
2. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion
by the trial court.
3. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in matters submitted for disposition.
4. Pleadings: Directed Verdict. A motion for judgment of acquittal is
simply another name for a motion for directed verdict of acquittal.
5. Directed Verdict: Waiver. Where a defendant makes a motion for a
directed verdict at the end of the State’s case, whether ruled upon or not,
and the defendant thereafter presents evidence, the defendant has waived
any error in connection with the motion for directed verdict made at the
end of the State’s case.
6. Criminal Law: Pleadings: Directed Verdict. A motion for judgment
of acquittal is a criminal defendant’s request, at the close of the government’s case or the close of all evidence, to be acquitted because there is
no legally sufficient evidentiary basis on which a reasonable jury could
return a guilty verdict.
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7. 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.
8. Pleadings: Motions to Dismiss: Directed Verdict. Whether styled as a
motion for judgment of acquittal, motion for directed verdict, or motion
to dismiss, these motions all have the same effect when used to challenge the sufficiency of the State’s evidence at the conclusion of the
State’s case or the conclusion of the evidence.
9. Witnesses: Juries: Appeal and Error. The credibility and weight of
witness testimony are for the jury to determine, and witness credibility
is not to be reassessed on appellate review.
10. Convictions: Appeal and Error. In determining whether the evidence
is sufficient to sustain a conviction in a jury trial, an appellate court
does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented to the
jury, which are within the jury’s province for disposition.
11. Criminal Law: Motor Vehicles: Words and Phrases. Recklessness,
for purposes of Neb. Rev. Stat. § 60-6,213 (Reissue 2010), has been
defined as the disregard for or indifference to the safety of another or for
the consequences of one’s act.
12. Sentences. When imposing a sentence, the sentencing court should customarily consider 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 violence
involved in the commission of the offense. However, the sentencing
court is not limited to any mathematically applied set of factors.
13. ____. The appropriateness of a sentence is necessarily a subjective
judgment and includes the sentencing judge’s observation of the defend
ant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
William F. McGinn, of McGinn, Springer & Noethe, P.L.C.,
for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Pirtle, R iedmann, and Bishop, Judges.
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STATE v. MALONE
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Pirtle, Judge.
INTRODUCTION
Kevin W. Malone appeals his convictions and sentences
for motor vehicle homicide and manslaughter in the district
court for Douglas County. He argues that the evidence was
insufficient to support guilty verdicts on the charges and that
his sentences are excessive. Based on the reasons that follow,
we affirm.
BACKGROUND
On March 10, 2017, Malone was charged by an amended
information with count 1, motor vehicle homicide, a Class II
felony; count 2, manslaughter, a Class IIA felony; count 3,
leaving the scene of a personal injury accident resulting in
serious bodily injury or death, a Class III felony; and count 4,
driving without an ignition interlock device, a Class I misdemeanor. The charges arose from a traffic accident in which
Malone’s car collided with Justin Hart’s motorcycle, resulting
in Hart’s death. Malone pled not guilty to all four charges.
A jury trial began on May 1, 2017. The evidence at trial
was as follows: On August 31, 2016, at approximately 7:25
p.m., Malone was traveling eastbound on West Center Road
in Omaha, Nebraska, in a black Nissan 350Z sports car when
he pulled into the left-hand turn lane to turn north onto 140th
Street. The traffic light controlling Malone’s lane displayed a
red arrow, which meant Malone was not allowed to turn. Hart
was traveling westbound on West Center Road and had a green
traffic light. With his light still red, Malone pulled into the
nearest westbound lane of West Center Road to turn left, just
as Hart was approaching the intersection on his motorcycle.
Hart applied his brakes and tried to “lay his bike down” to
avoid the collision but was unsuccessful. Hart collided with
the rear passenger’s side of Malone’s car and was ultimately
separated from his motorcycle. Hart landed face down on
the road, approximately 6 feet from Malone’s car, and Hart’s
motorcycle landed in the median between the eastbound lanes
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and the left-hand turn lane. Hart sustained massive internal
injuries during the collision and was declared dead after he
arrived at a hospital. His cause of death was “blunt trauma to
the head, chest, and abdomen.”
The accident was witnessed by several individuals, some of
whom attempted to render aid to Hart. An off-duty paramedic
and an individual who was a respiratory therapist began administering CPR. The off-duty paramedic observed blood coming
out of Hart’s mouth with each compression, and he was unable
to find a pulse.
As the two individuals were administering CPR to Hart,
Malone exited his car and walked over to their location. He
knelt down next to Hart’s body and started to perform “mouth- to-mouth,” which struck the off-duty paramedic as odd, given
the amount of blood coming from Hart’s mouth. Both the off-duty paramedic and the respiratory therapist told Malone to
stop, but he did it a second time. Malone then wiped off his
mouth, slowly stood up, and walked away.
By this time, several people had called the 911 emergency
dispatch service, and both fire department and police department employees were on their way to the scene. In addition,
several witnesses, including Karla Villatoro, were trying to
identify the driver of the Nissan. As Villatoro was looking for
identification inside the Nissan, Malone walked around the rear
of the Nissan and picked up some car parts off the ground and
placed them in the back seat of the car. Villatoro asked Malone
if the car belonged to him, and he replied that it did. Malone
then got into the driver’s seat, and Villatoro asked him what he
was doing. Malone told her he was going to move his car out
of the way. Villatoro instructed Malone to move his car to a
certain place and to stay there.
Malone fumbled with his keys as he placed them in the
ignition. After he started the car, he began to move it while
holding the driver’s side door open with his arm and his
foot hanging out of the car. Malone drove a short distance
and stopped briefly, but then started driving again and left
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the scene of the accident. Malone’s car was smoking as he
drove away.
Officer Stephen Venteicher of the Omaha Police Department
arrived on the scene moments later, and several people told
him that the driver of the car involved in the collision “just
took off.” Venteicher made contact with Villatoro, who
described the car and told him the direction Malone was
headed. Venteicher activated his emergency lights and initiated
a pursuit.
After Venteicher began his pursuit, he saw a white cloud
of smoke dissipating in the air. He followed the trail of
smoke, which led him into a residential neighborhood. He soon
observed that the Nissan was in front of him and that it was
swerving as it drove down the road. Venteicher activated his
sirens, in addition to the emergency lights which had already
been activated. Malone slowed down and stayed to the right
but did not stop. Venteicher then pulled up next to the driver’s
side door and “screamed” at Malone to pull over and stop.
Malone did not appear startled, but, rather, rolled his head
slowly to the left toward Venteicher and then slowly back to
the right before finally bringing his car to a stop.
Venteicher parked next to the Nissan, and Malone immediately said, “I just thought it would be best if I got my
car home.” Venteicher removed Malone from the car, placed
him face down on the ground, and handcuffed him. When
Venteicher requested identification, Malone said his license
was in his wallet. Venteicher retrieved Malone’s wallet and
identified him by an ignition interlock permit. Notably, there
was no ignition interlock device installed on the Nissan.
Venteicher also discovered that the license plates on the Nissan
were expired. Venteicher then advised dispatch that he had the
suspect in custody.
While Malone was still lying on the ground, he repeatedly
stated, “[H]e just came out of nowhere. I tried to help, but I
just thought it would be best to get my car home.” Venteicher
helped Malone to his feet and noticed that he had blood on his
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hands, his shirt, and his chin. As Malone explained that the
blood belonged to the motorcycle driver, Venteicher detected
a faint odor of alcohol on Malone’s breath and noticed his
eyes were watery and his speech was mumbled. Venteicher,
who had been a police officer for 25 years and had conducted
more than 1,000 driving under the influence (DUI) investigations, suspected Malone may be impaired and decided to begin
a DUI investigation. Venteicher asked Malone if he had been
drinking, and Malone admitted that he had consumed two beers
earlier in the day.
Following some preliminary questions, Venteicher administered a series of field sobriety tests to Malone. Malone was
able to correctly recite the alphabet when asked, but his speech
was mumbled. Malone showed signs of impairment on the
remaining tests. Specifically, four out of six clues or indicators
on the horizontal gaze nystagmus (HGN) indicated impairment, Malone was unable to count backward from 92 to 78,
he was unable to touch his nose with his fingertip, six of eight
clues on the nine-step walk-and-turn indicated impairment,
and Malone failed to follow instructions on the “Romberg”
balance test. In addition, Venteicher noted Malone was swaying slightly during both the finger-to-nose test and the balance
test. Based on his observations, Venteicher concluded Malone
was impaired to the extent that he could not safely operate a
motor vehicle.
Shortly after Venteicher finished administering the field
sobriety tests to Malone, Officer Matthew Kelly, of the Omaha
Police Department, arrived. Like Venteicher, Kelly had conducted more than 1,000 DUI investigations during his 25-year
career as a police officer. In addition, he was a certified drug
recognition expert (DRE) and had conducted approximately
150 DRE examinations. After speaking to Venteicher, Kelly
made contact with Malone. Kelly asked Malone if he had taken
any drugs, and Malone stated he was taking a prescription drug
called Celexa. He also admitted that he had consumed two
beers earlier in the day.
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Kelly administered the HGN test to Malone and observed
the same four clues as Venteicher, which suggested to Kelly
that Malone could be under the influence of a central nervous
system depressant (CNSD), an inhalant, or a dissociative anesthetic. Kelly decided to transport Malone to Douglas County
Corrections to conduct a DRE examination.
Upon arrival at Douglas County Corrections, Malone agreed
to submit to the DRE examination and provide a urine sample.
He also submitted to a chemical breath test, which showed he
did not have any alcohol in his system. Kelly again questioned
Malone about any prescription drugs he was taking. Malone
stated he was taking Celexa, as well as medications for high
blood pressure and depression.
Kelly then began the 12-step DRE examination. Malone
displayed several signs indicative of impairment, including the
same four out of six clues on the HGN that he had seen when
Malone did the test earlier, lack of convergence (i.e., he was
unable to cross his eyes), four out of eight clues on the walk- and-turn test, two out of four clues on the one-leg stand, and an
inability to accurately touch his nose with his fingertip (missing three out of six attempts). Malone did not show any signs
of impairment on the balance test. Malone’s blood pressure and
pulse rates were also elevated, and his pupils were dilated. His
muscle tone appeared normal.
Based on Malone’s driving behavior and his performance
during the DRE examination, Kelly concluded that Malone
was under the influence of a CNSD and cannabis and that he
was impaired to an extent he was unable to safely operate a
motor vehicle. Kelly stated that Malone’s driving behavior that
indicated impairment included the following: his claim that his
light was green, which was not possible based on the cycle of
the light; the fact that Malone left the scene to get his car home;
and Malone’s actions at the scene. The indicators from the field
sobriety tests that led Kelly to conclude that Malone was under
the influence of a CNSD were Malone’s HGN test results,
his lack of convergence, and his performance on the divided
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attention tests (walk-and-turn, one-leg stand, and finger-tonose test). The indicators for cannabis included Malone’s lack
of convergence, dilated pupils, and elevated blood pressure
and pulse rates. Kelly also noted that some antidepressants can
elevate a person’s pulse rate and cause dilated pupils.
At the conclusion of the DRE examination, Kelly collected
a urine sample from Malone and sent it to the Nebraska
State Patrol crime laboratory for testing. Malone’s urine
tested positive for four different CNSD’s, but negative for
cannabinoids. The CNSD’s present in Malone’s urine were
zolpidem (also known as Ambien), diphenhydramine (also
known as Benadryl), clonazepam (also known as Klonopin),
and citalopram (also known as Celexa). When asked about
the absence of cannabinoids in Malone’s urine, Kelly again
explained that some antidepressants can cause elevated pulse
rates and blood pressure, as well as dilated pupils, similar
to the effects of cannabinoids. In addition, Kelly testified
that the presence of multiple drugs in a person’s system can
have an “additive effect,” meaning the drugs can interact in
ways that enhance impairment. In this case, Malone had four
CNSD’s in his urine and admitted to drinking alcohol, which
is also a CNSD.
At the close of the State’s evidence, Malone made a motion
for judgment of acquittal, alleging the State had not made a
prima facie case against him. The trial court denied the motion.
Malone testified in his own defense. He admitted that the
accident was his fault but denied that he was impaired when he
was driving. He questioned the accuracy of Venteicher’s and
Kelly’s testimony about his performance on the field sobriety
tests. Malone also testified that after the accident, he tried to
help Hart by doing mouth-to-mouth resuscitation. He also testified that when he got back in his car after the accident, he was
just going to move it out of the way, but then he panicked and
drove off.
Malone stated that he had another vehicle at his home
equipped with an ignition interlock device, which device he
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was required to have in order to drive. He testified that on
the day of the accident, he was driving the Nissan because he
was taking it to a carwash to have it cleaned so he could try
to sell it.
Malone offered into evidence the labels from his prescriptions for zolpidem, citalopram, and clonazepam, all of which
carried the same warning: “May cause drowsiness. Alcohol
may intensify this effect. Use care when operating a vehicle,
vessel (e.g., boat), or machinery.”
Malone also offered the testimony of a professor of pathology, who testified that urine testing alone cannot prove that a
drug is present in a person’s bloodstream or in what amount.
He explained that the amount of drugs in a person’s urine does
not have a correlation to the amount of drugs in the bloodstream. He also testified that the presence of a drug in urine
does not prove that the drug caused the person to be impaired.
He acknowledged on cross-examination that field sobriety
tests and DRE examinations are valid methods for determining
whether a person is impaired by drugs.
At the conclusion of all the evidence, Malone again made
a motion for judgment of acquittal, which motion the trial
court denied. The case was submitted to the jury, and it
returned verdicts of guilty on all four counts. The district
court accepted the jury’s verdicts and adjudged Malone guilty
of the offenses.
Malone’s sentencing hearing was held on June 28, 2017.
The State offered a certified copy of Malone’s conviction for
DUI, third offense, into evidence. The district court found the
conviction valid for enhancement purposes, making Malone’s
conviction for motor vehicle homicide a Class II felony.
The district court then sentenced Malone to 40 to 50 years’
imprisonment on count 1, 20 to 20 years’ imprisonment on
count 2, 4 years’ imprisonment on count 3, and 1 year’s imprisonment on count 4. The district court ordered the sentences to
run concurrently and also revoked Malone’s driver’s license for
15 years.
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ASSIGNMENTS OF ERROR
Malone assigns, restated, that the trial court erred in (1)
denying his motion for directed verdict at the conclusion of
the State’s evidence and failing to grant a judgment of acquittal at the close of his case on counts 1 and 2 and (2) imposing
excessive sentences.
STANDARD OF REVIEW
[1] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence;
such matters are for the finder of fact. The relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. State v. Mora, 298 Neb. 185,
903
N.W.2d 244 (2017).
[2,3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. State v. Dyer, 298 Neb. 82,
902 N.W.2d 687 (2017).
A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters submitted for disposition.
Id.
ANALYSIS
Motion for Directed Verdict
and Judgment of Acquittal.
[4] Malone assigns that the trial court erred in overruling his motion for directed verdict at the conclusion of the
State’s evidence and failing to grant a judgment of acquittal at the close of all the evidence on counts 1 and 2. At the
close of the State’s evidence, Malone motioned for a judgment
of acquittal, rather than a directed verdict, as he refers to in
his assignment of error. However, a motion for judgment of
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acquittal is simply another name for a motion for directed verdict of acquittal. State v. Combs,
297 Neb. 422,
900 N.W.2d
473 (2017).
[5-8] Malone has waived error in relation to the ruling on
a directed verdict by presenting evidence after his motion.
See State v. Burke,
23 Neb. App. 750, 756,
876 N.W.2d 922,
928 (2016), citing State v. Rodriguez,
6 Neb. App. 67,
569
N.W.2d 686 (1997) (“‘where a defendant makes a motion for
a directed verdict at the end of the State’s case, whether ruled
upon or not, and the defendant thereafter presents evidence,
the defendant has waived any error in connection with the
motion for directed verdict made at the end of the State’s
case’”). However, Malone may proceed on his failure to
grant a judgment of acquittal at the close of all the evidence
assignment of error, as that is essentially a sufficiency of the
evidence argument. A motion for judgment of acquittal is “‘[a]
criminal defendant’s request, at the close of the government’s
case or the close of all evidence, to be acquitted because there
is no legally sufficient evidentiary basis on which a reasonable
jury could return a guilty verdict.’” State v. Combs,
297 Neb.
at 429,
900 N.W.2d at 480, quoting Black’s Law Dictionary
1170 (10th ed. 2014). As previously stated, a motion for
judgment of acquittal is simply another name for a motion
for directed verdict of acquittal.
Id. And a motion to dismiss
at the close of all the evidence has the same legal effect as
a motion for directed verdict.
Id. Thus, whether styled as a
motion for judgment of acquittal, motion for directed verdict,
or motion to dismiss, these motions all have the same effect
when used to challenge the sufficiency of the State’s evidence
at the conclusion of the State’s case or the conclusion of the
evidence.
Id.
Malone first argues that the evidence was insufficient to
convict him of motor vehicle homicide. A person commits
motor vehicle homicide when he or she 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
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or in violation of any city or village ordinance.
Neb. Rev.
Stat. § 28-306(1) (Reissue 2016). Pursuant to § 28-306(3)(c),
if the proximate cause of the death of another is the operation
of a motor vehicle in violation of
Neb. Rev. Stat. § 60-6,196
(Reissue 2010) (operating motor vehicle while under influence
of alcoholic liquor or drugs) or
Neb. Rev. Stat. § 60-6,197.06
(Cum. Supp. 2016) (operating motor vehicle during revocation period), motor vehicle homicide is a Class II felony if the
defendant has a prior conviction for a violation of § 60-6,196
or § 60-6,197.06.
[9,10] The State had to prove that Malone was engaged in
the operation of a motor vehicle while under the influence of
alcoholic liquor or drugs and that his operation of the motor
vehicle while under the influence of alcoholic liquor or drugs
was the proximate cause of Hart’s death. Malone argues that
the evidence was insufficient to show that he was under the
influence of alcohol or drugs at the time of the collision.
He contends that the testimony of Venteicher and Kelly was
inconsistent and unreliable, or in other words, that their testimony was not credible. However, it is well established that the
credibility and weight of witness testimony are for the jury to
determine, and witness credibility is not to be reassessed on
appellate review. State v. France,
279 Neb. 49,
776 N.W.2d
510 (2009). Moreover, in determining whether the evidence
is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, evaluate explanations, or reweigh
the evidence presented to the jury, which are within the jury’s
province for disposition. State v. Hudson,
268 Neb. 151,
680
N.W.2d 603 (2004).
Venteicher and Kelly were both experienced police officers, and they individually administered field sobriety tests
to Malone. They both observed multiple signs indicative of
impairment, and both concluded Malone was impaired.
After Venteicher stopped Malone and removed him from
his car, Venteicher suspected that Malone may be impaired
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because there was a faint odor of alcohol on his breath,
his eyes were watery, and his speech was mumbled. After
Malone admitted he had consumed two beers earlier in the
day, Venteicher administered a series of field sobriety tests to
Malone. Malone correctly recited the alphabet, although his
speech was mumbled, but showed signs of impairment on the
remaining tests. Malone was also swaying slightly during two
of the tests. Venteicher concluded Malone was impaired to an
extent that he could not safely operate a motor vehicle.
Kelly, a certified DRE, made contact with Malone after
Venteicher conducted his field sobriety tests. Malone told
Kelly he was taking a prescription drug called Celexa and
admitted to consuming two beers earlier in the day. Kelly
administered the HGN, and he observed the same four clues of
impairment that Venteicher had observed, which suggested to
him that Malone could be under the influence of a CNSD, an
inhalant, or one of the “dissociative anesthetics.”
Kelly subsequently conducted a full DRE examination and
had Malone provide a urine sample. When asked about prescription medication, Malone stated he was taking medication for high blood pressure, as well as Celexa and another
antidepressant. During the DRE examination, Malone showed
several signs indicative of impairment. His blood pressure
and pulse rate were also elevated and his pupils were dilated.
Based on Malone’s driving behavior and his performance during the DRE examination, Kelly concluded that Malone was
under the influence of a CNSD and cannabis and that Malone
was unable to safely operate a motor vehicle.
Malone’s urine sample tested positive for four CNSD’s,
but negative for cannabinoids. Kelly explained that some
antidepressants can cause symptoms similar to those caused
by cannabinoids. He also testified multiple drugs in a person’s system can have an “additive effect,” thereby enhancing
impairment.
Malone’s own witness, the professor of pathology, acknowledged on cross-examination that field sobriety tests and DRE
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examinations are valid methods for determining whether a
person is impaired by drugs.
The testimony of Venteicher and Kelly, as well as Malone’s
behavior after the accident, was sufficient evidence to support a finding that Malone was under the influence of drugs
at the time of the collision with Hart. We conclude the evidence was sufficient to support Malone’s conviction for motor
vehicle homicide.
Malone also argues that the evidence was insufficient to
convict him of manslaughter. “A person commits manslaughter
if he or she . . . causes the death of another unintentionally
while in the commission of an unlawful act.”
Neb. Rev. Stat.
§ 28-305 (Reissue 2016). The alleged unlawful act was reckless driving. Malone contends that the evidence failed to show
that he recklessly operated a motor vehicle.
[11] Reckless driving occurs when any person drives a
motor vehicle in such a manner as to indicate an indifferent
or wanton disregard of the safety of persons or property. See
Neb. Rev. Stat. § 60-6,213 (Reissue 2010). Recklessness, for
purposes of § 60-6,213, has been defined as the disregard for
or indifference to the safety of another or for the consequences
of one’s act. See State v. Green,
238 Neb. 475,
471 N.W.2d
402 (1991).
Malone argues that the evidence fails to show that he acted
with disregard or indifference for the safety of others. He
contends that he was not speeding, not driving erratically, and
did not “blow through” the traffic signal. Brief for appellant
at 12. Rather, the evidence showed that he had stopped at the
intersection and “slowly inched his vehicle into the intersection looking for an opportunity to turn.”
Id. Malone acknowledged that he violated a traffic law by turning left when the
traffic light for his lane was red, but stated that he mistakenly
“thought he had the green light to turn and was observing the
traditional right of way rule.”
Id.
Malone drove his car while impaired by his medication,
and he disregarded a red light—turning into oncoming traffic
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and causing a collision resulting in Hart’s death. However, the
evidence also established that Malone chose to drive a motor
vehicle which he was not authorized to drive because it was
not equipped with an ignition interlock device. He had another
vehicle at his home equipped with an ignition interlock device.
He also disregarded the warning labels on his prescription
medications, all of which warned that they may cause drowsiness, that alcohol may intensify the effect, and that care must
be taken when operating a motor vehicle. We conclude that the
evidence was sufficient for the jury to conclude that Malone’s
conduct was “reckless,” and thereby sufficient to support his
conviction for manslaughter.
Excessive Sentences.
Malone next argues that his sentences for counts 1 and 2
are excessive. The court sentenced Malone to 40 to 50 years’
imprisonment for the motor vehicle homicide conviction and
20 to 20 years’ imprisonment for the manslaughter conviction, with the sentences to run concurrently. Motor vehicle
homicide is a Class II felony, punishable by a maximum sentence of 50 years’ imprisonment and a minimum sentence of 1
year’s imprisonment. § 28-306(3)(c); Neb. Rev. Stat. § 28-105
(Reissue 2016). Manslaughter is a Class IIA felony, punishable
by a maximum of 20 years’ imprisonment, with no minimum
sentence. § 28-305; § 28-105. The sentences imposed by the
district court were within the statutory limits. An appellate
court will not disturb a sentence imposed within the statutory
limits absent an abuse of discretion by the trial court. State v.
Dyer,
298 Neb. 82,
902 N.W.2d 687 (2017).
Malone argues that the court abused its discretion in sentencing because it had a personal bias against him. At the
sentencing hearing, the court discussed that it had previously
sentenced Malone to probation for DUI, third offense. The
court stated that the presentence investigation at that time did
not include all the specifics of Malone’s prior DUI’s and that
if it had, the court would have likely sentenced him differently.
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Nebraska Court of A ppeals A dvance Sheets
26 Nebraska A ppellate R eports
STATE v. MALONE
Cite as 26 Neb. App. 121
The court stated that the presentence investigation before it in
this case included all the specifics of his past crimes. The court
further addressed Malone’s past behavior and his continuous
effort to make excuses for himself rather than taking responsibility for his actions.
[12,13] When imposing a sentence, the sentencing court
should customarily consider 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 violence involved in the commission of the offense. However, the sentencing court is not
limited to any mathematically applied set of factors. State v.
Mora,
298 Neb. 185,
903 N.W.2d 244 (2017). The appropriateness of a sentence is necessarily a subjective judgment 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.
Id.
Although the court discussed Malone’s past criminal history and behavior at sentencing, it did not take anything inappropriate into consideration nor does that record indicate any
bias against Malone that affected sentencing. The court stated
that it had reviewed the presentence investigation and that
it had considered the above-mentioned factors. We conclude
that the trial court did not abuse its discretion in the sentences
it imposed for the motor vehicle homicide and manslaughter convictions.
CONCLUSION
We conclude that there was sufficient evidence to support
guilty verdicts on the charges of motor vehicle homicide and
manslaughter and that the sentences for these convictions are
not excessive. Accordingly, the judgment of the district court
is affirmed.
A ffirmed.
