State of Nebraska v. Abram K. Sollman

- Criminal defense attorney represented Abram K. Sollman with appealing his conviction of motor vehicle homicide, driving under the influence of alcohol (DUI), and reckless driving..

At about 6 p.m. on February 1, 2019, Sean Nowling was

traveling westbound on Interstate 80 when "[a]ll of a sudden [he heard] honking of a horn like blaring” and a silver

Volkswagen Jetta came "fl[ying] by [him] in the left lane . . .

swerving back and forth through traffic,” outpacing all other

cars on the road and not using turn signals. Nowling later

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STATE v. SOLLMAN

Cite as 29 Neb. App. 356

saw the same Volkswagen, which he described as a "station

wagon car” with "real fancy rims on it” and a Wisconsin

license plate, with a door open at the "[Highway] 370 exit”

where its driver had pulled over onto the side of the road and

it appeared to Nowling as if the driver "was urinating on the

side of the road.”

After Nowling passed the silver Volkswagen, Nowling exited

at the Gretna, Nebraska, off ramp before the Volkswagen came

"flying by [him] on the shoulder up through three or four cars

. . . in front of [him] . . . on the shoulder all the way through”

and ran "the red light at the off ramp turn and Highway 31”

toward Gretna. Nowling watched as the Volkswagen ran a

second red light near a shopping mall, causing the vehicles

in the area to quickly brake to avoid a collision. Nowling

also observed the Volkswagen "swerv[e],” "whi[p] around,”

make a "U-turn,” and "hea[d] back towards the [I]nterstate on

Highway 31.” Shortly thereafter, Nowling saw an "ambulance

[and] sheriffs [and saw] Highway 31 was closed off.”

Shortly thereafter, a Sarpy County sheriff's deputy, John

Sanderson, arrived at the scene of the accident involving the

silver Volkswagen and another vehicle, which accident had

resulted in injuries to both drivers. Sollman was identified as

the driver of the Volkswagen, and a Sarpy County sheriff's

sergeant, Kyle Percifield, discovered a "small bottle of Fireball

whisky . . . on the passenger side of [Sollman's] vehicle.”

Deputy Sanderson smelled alcohol emanating from Sollman as

Sollman was being transported on a stretcher to a "life flight”

helicopter and taken to the University of Nebraska Medical

Center (UNMC). The driver of the second vehicle, Cassandra

Clausen, later died of blunt force trauma to her torso as a result

of the accident.

After Deputy Sanderson smelled alcohol emanating from

Sollman, he obtained a search warrant to obtain a DUI blood

draw from Sollman. When Deputy Sanderson arrived at

UNMC to execute the search warrant, he informed Sollman

that he had a search warrant for a blood draw, went over

the post-chemical-test advisements, and, during the same

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STATE v. SOLLMAN

Cite as 29 Neb. App. 356

conversation, asked Sollman if he had had anything to drink.

Sollman responded that he "hadn't had anything to drink

in 15 hours prior was his last drink.” The results from the

blood draw taken pursuant to the search warrant, which draw

occurred approximately 3 hours after the accident, showed that

Sollman's blood alcohol content was .125 plus or minus .01

grams of ethanol per 100 milliliters of blood.

The following day, Sergeant Percifield visited Sollman at

UNMC and inquired about Sollman's recollection of the accident. Sollman stated that he had been traveling from Michigan

to Lincoln and that "he didn't feel intoxicated” prior to the

accident. Sergeant Percifield interviewed Sollman for a second time while Sollman was in jail and began by informing

Sollman of the charges against him and the preliminary conclusions of the investigation into the accident. During this jail

interview, Sollman responded that he thought the speed limit

was 65 m.p.h. Sergeant Percifield acknowledged that he did

not advise Sollman of his Miranda rights while interviewing

Sollman at either the hospital or the jail.

In March 2019, Sollman was charged with motor vehicle

homicide while under the influence of alcohol or drugs, a

Class IIA felony under Neb. Rev. Stat. § 28-306(3)(b) (Reissue

2016) (count 1); DUI, a Class W misdemeanor under Neb. Rev.

Stat. § 60-6,196 (Reissue 2010) (count 2); and reckless driving, a Class III misdemeanor under Neb. Rev. Stat. § 60-6,213

(Reissue 2010) (count 3). The information alleged that Sollman

unintentionally caused Clausen's death while engaged in the

unlawful operation of a motor vehicle, i.e., under the influence

of alcohol beyond the legal limit.

1. Motion to Suppress

Prior to trial, Sollman moved to suppress statements he

made to law enforcement at the scene of the February 1, 2019,

accident and the following day while he was in the hospital,

alleging the statements were obtained in violation of the 4th

through 6th and 14th Amendments to the U.S. Constitution,

as well as article I, §§ 7 and 12, of the Nebraska Constitution.

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STATE v. SOLLMAN

Cite as 29 Neb. App. 356

More specifically, Sollman asserted that the statements were

obtained when he was hospitalized and in extreme pain and

suffering; that he was not free to leave; that his statements

were given neither freely nor voluntarily and were not made

knowingly, understandingly, or intelligently; that he was not

informed of his Miranda rights; and that his statements were

a result of questions that law enforcement should have known

were likely to elicit an incriminatory response.

At the suppression hearing, certain of the aforementioned

facts that were relevant to Sollman's motion were admitted

into evidence. Additional testimony was adduced from Deputy

Sanderson and Sergeant Percifield.

(a) Deputy Sanderson

When Deputy Sanderson executed the search warrant for a

blood draw, he observed Sollman to be "conscious, alert, and

talking”; believed Sollman knew who Deputy Sanderson was

and what was going on; and noted Sollman was appropriately

responsive to the questions posed to him. Deputy Sanderson

acknowledged that he did not speak with hospital staff about

Sollman's condition or about any medications given to Sollman

prior to speaking with him; however, Deputy Sanderson reiterated that Sollman was "with it . . . able to hold a conversation,” which Deputy Sanderson testified provided him with no

indication that Sollman would be unable to coherently answer

Deputy Sanderson's questions. Deputy Sanderson agreed that

Sollman's condition likely prevented him from moving around

the room or leaving at the time Deputy Sanderson spoke with

him, but acknowledged that he did not know for sure. Deputy

Sanderson noted that Sollman did not refuse to speak with him

and did not ask for an attorney, but acknowledged that he did

not advise Sollman of his rights.

Deputy Sanderson recalled that during his interaction with

Sollman, he was standing "probably about five feet” from

the foot of the bed; did not threaten Sollman, yell at him, or

draw his weapon or display it at any point; and did not place

Sollman under arrest or handcuff him.

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STATE v. SOLLMAN

Cite as 29 Neb. App. 356

(b) Sergeant Percifield

Sergeant Percifield's first of two meetings with Sollman

occurred at UNMC the day after the accident. Prior to questioning Sollman, Sergeant Percifield asked hospital staff about

Sollman's condition and learned from Sollman that Sollman

was on pain medication. Sergeant Percifield sought Sollman's

consent to obtain Sollman's blood alcohol content result, and

Sollman responded that Sergeant Percifield "could, and that

[Sergeant Percifield] would get it anyway.” Sergeant Percifield

estimated that he conversed with Sollman "[a]bout 15 minutes”

and noted that he was the only law enforcement officer present; did not display his weapon; and did not yell at or threaten

Sollman. Despite Sollman's condition, Sergeant Percifield

believed Sollman was "alert,” was able to focus on the questions asked, and responded appropriately to questions. Sergeant

Percifield also noted that Sollman never expressed a desire not

to speak with him and never requested an attorney. However,

Sergeant Percifield did not believe Sollman was able to freely

move around or leave under his own strength.

(c) Court's Order Regarding

Motion to Suppress

Following the hearing, the district court denied Sollman's

motion to suppress. The court specifically found that Sollman's

statements were made voluntarily, explaining that Sollman

was "attentive to the conversation”; that "his responses were

clear, appropriate, and articulate”; that he was not in custody

for purposes of invoking his Miranda rights; that his statement

"'I thought it [the speed limit] was 65'” was admissible; and

that Sergeant Percifield's discussion about how he calculated

Sollman's speed was not intended to elicit any response.

2. Trial

A bench trial was held in December 2019. Stipulations

were entered at trial, including that Clausen died of blunt

force trauma to her torso received during the accident and that

an exhibit containing a call to the 911 emergency dispatch

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STATE v. SOLLMAN

Cite as 29 Neb. App. 356

service was admissible. Additional evidence presented to the

district court included testimony from Nowling, a witness to

Sollman's erratic driving immediately prior to the accident as

previously set forth; Deputy Sanderson; Shayna Hill, the phlebotomist who performed Sollman's DUI blood draw; forensic

chemist Shanon Tysor; Sergeant Percifield; and a Nebraska

State Patrol trooper, Andrew Phillips. Surveillance system

video from a nearby business appeared to show Clausen's

vehicle stop at the intersection and two cars pass before her

vehicle entered the intersection, at which time it was struck by

Sollman's vehicle.

(a) Phlebotomist Hill

Hill testified that when Sollman was brought to the hospital,

he was treated as a trauma patient, which included Hill's drawing a blood sample so Sollman's blood alcohol content could

be analyzed. She explained that the materials used to collect

a blood alcohol sample do not utilize alcohol and that once a

sample has been obtained, she submits the sample to the laboratory for testing and later reviews the test results. Sollman's

laboratory results obtained the night of the accident showed

he had a blood alcohol content of .197 of a gram of alcohol

per 100 milliliters of blood, which results were offered into

evidence as exhibit 5. Hill identified exhibit 5, but Sollman

objected on hearsay grounds, arguing exhibit 5 should not be

received by the court, because Hill did not complete the testing on Sollman's blood sample. In response, the State argued

that deficiencies in technique go to the weight and credibility

but not the admissibility of the exhibit. Ultimately, the district

court received exhibit 5 for the purpose of the blood alcohol

content reading.

(b) Deputy Sanderson

Deputy Sanderson provided some of the same testimony

he gave at the suppression hearing, and counsel for Sollman

renewed his objection based on his motion to suppress. In

addition to the content of that previous testimony, Deputy

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STATE v. SOLLMAN

Cite as 29 Neb. App. 356

Sanderson noted that due to the "chaotic-ness” of the scene,

he did not perform any field sobriety tests or give Sollman a

preliminary breath test at the scene. Instead, Deputy Sanderson

obtained a search warrant for a DUI blood draw. At 9:21 p.m.,

which was approximately 3 hours after the accident, Deputy

Sanderson observed Hill remove two vials' worth of blood

from Sollman.

(c) Forensic Chemist Tysor

Tysor, a forensic chemist employed by the Douglas County

sheriff's office, testified that she holds a Class A permit from

the Nebraska Department of Health and Human Services and

explained the permit is a license indicating she can process

blood samples to determine alcohol concentration. Tysor stated

that she tests blood samples for alcohol content monthly and

performs approximately 50 to 60 tests annually. Tysor testified that she received a request from Deputy Sanderson to test

Sollman's blood for alcohol and proceeded to test the blood

sample in accordance with the specifications of title 177 of the

Nebraska Administrative Code. Tysor further stated that all the

scientific equipment was in proper working order. However,

Tysor testified that the date or time the sample was collected

was not included in her report. When Tysor was asked what

the blood alcohol content of Sollman's sample was, Sollman

objected based on foundation as to the chain of custody, but

the court overruled the objection. Tysor reviewed the notes she

took when testing Sollman's blood sample and testified the

vial indicated that the sample had been collected on February

1, 2019, at 9:21 p.m. Tysor testified Sollman's blood alcohol

content was .125 plus or minus .01 grams of ethanol per 100

milliliters of blood.

(d) Sergeant Percifield

Sergeant Percifield testified that he has experience and training in investigating vehicle accidents and that as part of his

investigation of the current accident, he recorded his interview

with Sollman at the hospital. The district court received the

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STATE v. SOLLMAN

Cite as 29 Neb. App. 356

recording in evidence over Sollman's renewal of his motion

to suppress.

Sergeant Percifield also investigated and took photographs

of the vehicles involved in the accident. The photographs

show the silver Volkswagen's Michigan license plate, number "EAC 7112,” and Sergeant Percifield testified that they

show the Volkswagen's tire imprint indicated the tires were

larger than the manufacturer's recommended size. Sergeant

Percifield explained that because the Volkswagen was equipped

with larger tires, the speedometer underreported the vehicle's actual speed. Sergeant Percifield further testified that the

Volkswagen's speedometer had stopped at approximately 76

m.p.h., which happens with older vehicles that are involved in

an accident, but also acknowledged that a frozen speedometer

is not definitive proof of the speed Sollman was going at the

time of the accident.

Sergeant Percifield also used data from the airbag control

module in Clausen's vehicle to corroborate speed calculations.

Sergeant Percifield determined that at the time of the accident,

Clausen was traveling at 14.93 m.p.h. and Sollman was traveling at approximately 72.49 m.p.h. Sergeant Percifield's investigation established that Clausen was at a stop sign when she

failed to yield and turned left in front of Sollman onto Highway

31. Sergeant Percifield estimated that had Sollman been traveling at 55 m.p.h. rather than over 70 m.p.h., Clausen's vehicle

would have cleared Sollman's lane of travel when he was

31 feet from the impact area. When asked hypothetically

whether this accident would have occurred if both drivers

had been sober, Sergeant Percifield stated that the accident

might not have occurred, because reaction time is a factor

considered during accident reconstruction. More specifically,

Sergeant Percifield explained that a sober person might realize

an obstruction is in the roadway and react to it more quickly

than someone who was intoxicated. Sergeant Percifield opined

that based on his calculations, the accident occurred because

Sollman was traveling at around 72 m.p.h. in a 55-m.p.h.

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zone, and that intoxication was a factor in the accident due

to the slower reaction and perception of an impaired person.

Sergeant Percifield explained that lack of tire marks attributable to Sollman's vehicle was evidence that his reaction to the

impending crash was slowed.

Sergeant Percifield spoke to Sollman about the oversized tires on his vehicle and the speed calculations, and

Sollman replied that he thought the speed limit was 65 m.p.h.

Sollman renewed his motion to suppress by objecting to those

statements.

Sergeant Percifield testified that text message data from

Clausen's cell phone showed she received a text message near

the time of the accident but did not indicate whether that message was viewed by Clausen, and Sergeant Percifield could

not conclude whether that contributed to the accident. Sergeant

Percifield also noted the incoming text message had the same

time stamp as a crash assistance number that was automatically

dialed from Clausen's cell phone.

(e) Trooper Phillips

Trooper Phillips testified that he responded to a call for service in February 2019 because Sollman was seeking Salvation

Army vouchers for a hotel room. After Phillips spoke with

Sollman, he learned that Sollman had two Sarpy County warrants for his arrest for misdemeanor DUI and felony motor

vehicle homicide. As Trooper Phillips transported Sollman to

the Sarpy County jail, Sollman made statements related to the

accident, including that the accident "cured him from drinking

and driving.”

3. Verdict and Sentencing

Following the conclusion of the State's case, Sollman moved

to dismiss counts 1 and 3 on the basis that the State had failed

to present a prima facie case, which motion was overruled by

the district court. Sollman then rested without presenting any

evidence and renewed his motion to dismiss, which the district

court again overruled.

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STATE v. SOLLMAN

Cite as 29 Neb. App. 356

Ultimately, the district court found Sollman guilty of all

three of the charged offenses. Prior to sentencing, Sollman

filed motions for new trial alleging that there was insufficient

evidence to convict him and that the court failed to consider

lesser-included offenses. The district court overruled those

motions, finding that there was sufficient evidence to convict

Sollman on all three charged offenses, and because the State

met its burden beyond a reasonable doubt on count 1, the court

did not need to consider lesser-included offenses.

At the sentencing hearing, the district court stated that it had

considered the contents of the presentence investigation report

(PSR), documentation that Sollman was 46 years old at the

time of the PSR, was married, and had nine dependent children; Sollman's criminal history and "Level of Service/Case

Management Inventory” (LS/CMI) scores; the comments made

at sentencing; the circumstances surrounding the accident,

including Sollman's intoxication level and speed; and the

seriousness of the crimes committed by Sollman. The district

court also noted that Sollman blamed the victim for the accident and that the court found Nowling's account of the events

leading up to the accident credible. Further, the court reviewed

law enforcement's accident reconstruction and calculations,

which determined the accident was caused by speeding, but

the court noted, "The accident was [caused by] an intoxication

level more than two times the legal limit, excessive speeding and erratic driving all the way up to the point in time

this occurred.”

As a result of those considerations, the district court found

that imprisonment was necessary to protect the public due

to the substantial risk Sollman would engage in additional

criminal conduct if placed on probation and that "a lesser

sentence would depreciate the seriousness of the offense or

promote disrespect of the law.” For count 1, motor vehicle

homicide, the district court sentenced Sollman to 14 to 20

years' imprisonment and a 15-year license suspension. For

count 2, DUI, the district court sentenced Sollman to 60 days'

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STATE v. SOLLMAN

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imprisonment and revoked Sollman's license for 6 months but

provided that Sollman could install an ignition interlock device

after 45 days. For count 3, reckless driving, the district court

sentenced Sollman to 90 days' imprisonment. The sentences

were ordered to be served consecutively, but the 15-year and

6-month license revocations were ordered to run concurrently.

Additionally, Sollman was given credit for 378 days previously

served. The district court also ordered Sollman to pay a fine of

$500. Sollman has timely appealed to this court.

III. ASSIGNMENTS OF ERROR

Sollman argues the district court erred in (1) overruling his

motion to dismiss at the close of evidence and finding him

guilty of motor vehicle homicide (count 1), because an efficient

intervening cause destroys proximate cause; (2) overruling his

hearsay objection to exhibit 5; (3) finding him guilty of DUI

(count 2); (4) overruling his motion to dismiss at the close of

evidence and finding him guilty of reckless driving (count 3);

(5) overruling his motion to suppress the statements he made to

law enforcement; and (6) imposing excessive sentences.

IV. STANDARD OF REVIEW

[1-3] A motion to dismiss at the close of all the evidence has

the same legal effect as a motion for directed verdict. State v.

Combs, 297 Neb. 422, 900 N.W.2d 473 (2017). See, also, State

v. Malone, 26 Neb. App. 121, 917 N.W.2d 164 (2018). In determining whether a criminal defendant's motion to dismiss for

insufficient evidence should be sustained, the State is entitled

to have all of its relevant evidence accepted as true, the benefit

of every inference that can reasonably be drawn from the evidence, and every controverted fact resolved in its favor. State

v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002). In a criminal

case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of

the crime charged or the evidence is so doubtful in character,

lacking probative value, that a finding of guilt based on such

evidence cannot be sustained. Id.

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STATE v. SOLLMAN

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[4] Excluding rulings under the residual hearsay exception,

an appellate court reviews the factual findings underpinning a

trial court's hearsay ruling for clear error and reviews de novo

the court's ultimate determination whether the court admitted

evidence over a hearsay objection or excluded evidence on

hearsay grounds. See State v. Dady, 304 Neb. 649, 936 N.W.2d

486 (2019).

[5] In reviewing a motion to suppress a statement based on

its claimed involuntariness, including claims that law enforcement procured it by violating the safeguards established by the

U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86

S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies

a two-part standard of review. State v. Montoya, 304 Neb. 96,

933 N.W.2d 558 (2019). Regarding historical facts, an appellate court reviews the trial court's findings for clear error. Id.

Whether those facts meet constitutional standards, however, is

a question of law, which an appellate court reviews independently of the trial court's determination. Id.

[6-8] Evidentiary questions committed to the discretion of

the trial judge, orders denying a motion for new trial, and

claims of excessive sentencing are all reviewed for abuse of

discretion. State v. Dady, supra. An abuse of discretion occurs

when a trial court's decision is based upon reasons that are

untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id. An appellate court

will not disturb a sentence imposed within the statutory limits

absent the trial court's abuse of discretion. State v. Lierman,

305 Neb. 289, 940 N.W.2d 529 (2020).

V. ANALYSIS

1. Motion to Dismiss and Finding

of Guilt on Count 1

Sollman first argues that the district court erred in overruling

his motion to dismiss at the close of evidence and finding him

guilty of count 1, because of the doctrine of efficient intervening cause.

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A motion to dismiss at the close of all the evidence has

the same legal effect as a motion for directed verdict. State v.

Combs, supra. In determining whether a criminal defendant's

motion to dismiss for insufficient evidence should be sustained,

the State is entitled to have all of its relevant evidence accepted

as true, the benefit of every inference that can reasonably be

drawn from the evidence, and every controverted fact resolved

in its favor. State v. Canady, supra. In a criminal case, a court

can direct a verdict only when there is a complete failure of

evidence to establish an essential element of the crime charged

or the evidence is so doubtful in character, lacking probative

value, that a finding of guilt based on such evidence cannot be

sustained. Id.

[9-15] Sollman was charged with motor vehicle homicide,

which is defined in § 28-306. Section 28-306(1) provides that

"[a] person who causes the death of another unintentionally

while engaged in the operation of a motor vehicle in violation

of the law of the State of Nebraska or in violation of any city

or village ordinance commits motor vehicle homicide.” Section

28-306(3)(b) further provides:

If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196

or 60-6,197.06, motor vehicle homicide is a Class IIA

felony. The court shall, as part of the judgment of conviction, order the person not to drive any motor vehicle

for any purpose for a period of at least one year and not

more than fifteen years and shall order that the operator's

license of such person be revoked for the same period.

Sollman argues that the State failed to prove that Sollman's

actions here were the proximate cause of the victim's death.

In support of that argument, he cites to State v. Irish, 292 Neb.

513, 520-21, 873 N.W.2d 161, 167-68 (2016), wherein the

Nebraska Supreme Court set forth the requirements for establishing proximate cause in the criminal context, holding:

The concept of proximate causation is applicable in

both criminal and tort law, and the analysis is parallel

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in many instances. As a general matter, to say one event

proximately caused another is a way of making two

separate but related assertions: First, it means the former

event caused the latter; second, it means that it was not

just any cause, but one with a sufficient connection to

the result. The idea of proximate cause, as distinct from

actual cause or cause in fact, is a flexible concept that

generally refers to the basic requirement that there must

be some direct relation between the injury asserted and

the injurious conduct alleged. A requirement of proximate cause serves to preclude liability in situations where

the causal link between conduct and result is so attenuated that the consequence is more aptly described as

mere fortuity.

Proximate causation and "but for” causation are interrelated. A "proximate cause” is a moving or effective

cause or fault which, in the natural and continuous

sequence, unbroken by an efficient intervening cause,

produces a death or injury and without which the death

or injury would not have occurred. Three basic requirements must be met in establishing proximate cause: (1)

that without the misconduct, the injury would not have

occurred, commonly known as the "but for” rule; (2) that

the injury was a natural and probable result of the misconduct; and (3) that there was no efficient intervening

cause. Criminal conduct is a proximate cause of the event

if the event in question would not have occurred but for

that conduct; conversely, conduct is not a proximate cause

of an event if that event would have occurred without

such conduct. Thus, "but for” causation is encompassed

within proximate causation.

Sollman attempts to argue here that the victim's negligence

in pulling out in front of Sollman's vehicle and failing to yield

to him was an efficient intervening cause of the accident and

the victim's death. More specifically, Sollman argues that

"[b]ecause the State does not dispute the accident would not

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have happened if [the victim] had not pulled out in front of . . .

Sollman, the State failed to prove the absence of an efficient

intervening cause, and as a result, failed to prove proximate

cause.” Brief for appellant at 11.

But Sollman's simplified argument misconstrues the concept

of intervening cause as it relates to this record. Whereas it is

true that there was evidence that the victim failed to yield the

right of way to Sollman, there was also evidence that but for

Sollman's excessive speed and delayed reaction to the victim's

pulling out, the accident would have been avoided. Thus, there

was evidence in this record that both parties' conduct, in fact,

contributed to the accident here.

[16] The Nebraska Supreme Court addressed the impact of

contributing factors to an accident, as it relates to proximate

cause, in State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016).

In so doing, the court held:

A reasonable trier of fact could find "but for” causation

in this case. If [the defendant] had not been driving the

pickup while under the influence, his passenger would not

have been seriously injured when [he] failed to negotiate

a curve and rolled the pickup, leading to the ejection of

the passenger. There is a causal nexus between [his] act

of driving while under the influence and the passenger's

serious bodily injury; such injury did not merely occur

while [he] was driving.

The presence of other factors combining with [the

defendant's] act of driving while under the influence does

not defeat "but for” causation. [He] argues that "but for”

causation cannot be established due to other considerations such as vehicle speed, road construction, failure

of the passenger to wear a seatbelt, and snow and ice

on the road. We find helpful the following explanation

of the U.S. Supreme Court: "Thus, 'where A shoots B,

who is hit and dies, we can say that A [actually] caused

B's death, since but for A's conduct B would not have

died.' . . . The same conclusion follows if the predicate

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act combines with other factors to produce the result,

so long as the other factors alone would not have done

so—if, so to speak, it was the straw that broke the camel's

back. Thus, if poison is administered to a man debilitated

by multiple diseases, it is a but-for cause of his death

even if those diseases played a part in his demise, so long

as, without the incremental effect of the poison, he would

have lived.” The other factors to which [the defendant]

points may have combined with [his] act of driving to

produce the result, but a reasonable trier of fact could

conclude that the other factors alone would not have done

so. And [his] act of driving while under the influence was

an independently sufficient cause of the passenger's serious bodily injury. Thus, "but for” causation exists.

A reasonable trier of fact could also conclude that the

passenger's serious bodily injury was a direct and natural

result of [the defendant's] act of driving the pickup while

under the influence of alcohol and that no intervening

cause superseded and severed the causal link. An intervening cause supersedes and cuts off the causal link only

when the intervening cause is not foreseeable. The other

factors that [he] claims contributed to the accident were

not efficient intervening causes, because they were foreseeable. And, as noted, there was sufficient causal connection between [his] act of driving while under the influence of alcohol and the resulting serious bodily injury to

[his] passenger.

State v. Irish, 292 Neb. at 521-22, 873 N.W.2d at 168.

The same can be said here. A reasonable trier of fact could

find "but for” causation in this case. If Sollman had not been

driving nearly 20 m.p.h. over the speed limit while intoxicated, this accident could have been avoided notwithstanding

the victim's failure to yield. There is a causal nexus between

Sollman's act of driving while impaired at an excessive rate of

speed and with delayed reaction time and this collision, which

resulted in the victim's death.

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A reasonable trier of fact could also conclude the victim's

death was a direct and natural result of Sollman's act of driving

his vehicle at an excessive rate of speed while under the influence of alcohol with limited reaction time and that no intervening cause superseded and severed the causal link.

In making that determination, we are mindful of Sollman's

argument that the victim's negligence here was an efficient

intervening cause which itself was the proximate cause of the

accident. Sollman argues that the victim's conduct in failing to

yield to Sollman severed his negligence in operating his vehicle

while under the influence at an excessive rate of speed and

should have resulted in the court's directing a verdict here.

[17,18] But a similar argument was made by the defendant

in Wilke v. Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370

(2009). In addressing the doctrine of efficient intervening

cause, the Nebraska Supreme Court held:

An efficient intervening cause is new and independent

conduct of a third person, which itself is a proximate

cause of the injury in question and breaks the causal

connection between the original conduct and the injury.

The causal connection is severed when (1) the negligent

actions of a third party intervene, (2) the third party had

full control of the situation, (3) the third party's negligence could not have been anticipated by the defendant,

and (4) the third party's negligence directly resulted in

injury to the plaintiff. The doctrine that an intervening

act cuts off a tort-feasor's liability comes into play only

when the intervening cause is not foreseeable. But if a

third party's negligence is reasonably foreseeable, then

the third party's negligence is not an efficient intervening

cause as a matter of law.

Id. at 816-17, 774 N.W.2d at 383. Applying that doctrine, like

in State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016), the

court found there was evidence in the record a jury could find

that the alleged intervening act was reasonably foreseeable,

thereby precluding judgment as a matter of law on the issue.

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[19,20] And more recently, in addressing the issue of

foreseeability in cases such as these, the Nebraska Supreme

Court held:

"[U]nder the Restatement (Third), foreseeable risk is an

element in the determination of negligence, not legal

duty. In order to determine whether appropriate care was

exercised, the fact finder must assess the foreseeable risk

at the time of the defendant's alleged negligence. The

extent of foreseeable risk depends on the specific facts of

the case and cannot be usefully assessed for a category

of cases; small changes in the facts may make a dramatic

change in how much risk is foreseeable. Thus, courts

should leave such determinations to the trier of fact

unless no reasonable person could differ on the matter.

And if the court takes the question of negligence away

from the trier of fact because reasonable minds could

not differ about whether an actor exercised reasonable

care (for example, because the injury was not reasonably

foreseeable), then the court's decision merely reflects

the one-sidedness of the facts bearing on negligence

and should not be misrepresented or misunderstood as

involving exemption from the ordinary duty of reasonable care.”

Latzel v. Bartek, 288 Neb. 1, 17, 846 N.W.2d 153, 165 (2014),

quoting A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205,

784 N.W.2d 907 (2010).

Taking these cases together, unless reasonable minds cannot differ, the issue of whether the victim's negligent act was

foreseeable here was a question of fact for the trier of fact.

This is not a case where reasonable minds could not differ.

Applying a similar rationale in Vilas v. Steavenson, 242 Neb.

801, 496 N.W.2d 543 (1993), overruled on other grounds,

DeWester v. Watkins, 275 Neb. 173, 745 N.W.2d 330 (2008),

the Nebraska Supreme Court held that where there was no

evidence in the case that the third party's negligence was not

reasonably foreseeable, the district court did not err in finding

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that the third party's negligence was not an efficient intervening cause. We reach the same conclusion here. The record in

the instant case is devoid of evidence that Sollman could not

have anticipated that the victim would misjudge his speed and

enter the intersection. And the record contains evidence that

Clausen came to a stop before entering the intersection, waited

for two cars to pass, then proceeded into the intersection, and

had Sollman been traveling at the posted speed, the accident

could have been avoided. This became an issue of fact for the

trier of fact in this case. In short, the record indicates evidence

of a sufficient causal connection between Sollman's act of

driving under the influence of alcohol and the victim's death

here. See, also, State v. Brown, 258 Neb. 330, 603 N.W.2d 419

(1999) (victim's negligence cannot act to absolve defendant in

motor vehicle homicide case unless victim's actions were sole

proximate cause of accident); State v. William, 231 Neb. 84,

435 N.W.2d 174 (1989) (contributory negligence not defense

to charge of motor vehicle homicide). Under the standards of

review governing a motion to dismiss or in reviewing the sufficiency of the evidence established above, we determine the

court did not err in overruling Sollman's motion to dismiss or

in finding for the State on the issue of proximate cause. This

first assignment of error fails.

2. Hearsay Objection

to Exhibit 5

Sollman next argues that the district court erred in admitting

exhibit 5 over his hearsay objection. Exhibit 5 was a medical

record issued by the UNMC which contained an entry from

a UNMC clinical laboratory which indicated that Sollman's

blood alcohol content was .197 of a gram of alcohol per 100

milliliters of blood on February 1, 2019, following the accident. Hill testified that test and the resulting record were a

component part of Sollman's medical treatment, Sollman's

having been admitted as a trauma patient, which treatment

includes drawing a blood sample.

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[21] Sollman's counsel objected to the admission of exhibit

5 on hearsay grounds. Sollman argues that the report itself

"contains assertions from some unnamed out-of-court declarant.” Brief for appellant at 16. He then argues that in regard to

Hill's testimony which laid foundation for the record:

The problem with . . . Hill's testimony is she did not complete the testing on the samples taken from . . . Sollman;

she was merely the phlebotomist who drew blood and

then sent the sample through a zip tube. . . .

. . . [T]here was no evidence in the record regarding

[the] testing procedure that produced Exhibit 5. Drawing

blood and sending the sample through a zip tube does not

overcome the elements of hearsay to admit the lab results

in evidence, and the District Court should have sustained

. . . Sollman's objection to Exhibit 5.

Id. at 16-17. The State responds by claiming that although

the record contains hearsay statements, which are out-of-court

statements made by a human declarant that are offered in

evidence to prove the truth of the matter asserted, see State

v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008), and

which are not admissible without exception, statements made

for purposes of medical diagnoses or treatment are excepted

from the hearsay rule by Neb. Rev. Stat. § 27-803(3) (Reissue

2016). But the State further argues that even if the report is

deemed hearsay,

the State produced additional evidence of Sollman's

[blood alcohol content] the night of the accident in the

form of [a Douglas County sheriff's office forensic laboratory report], which is more than capable of establishing

his [blood alcohol content] after the accident in a fashion

more customary in DUI investigations and prosecutions.

Brief for appellee at 29.

We find the State's second argument dispositive here, so

we do not reach the first. The State presented clear testimony

at trial that it procured a warrant and legally determined

Sollman's blood alcohol content, which evidence it offered

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through the testimony of Tysor, a forensic chemist. Even

Sollman's brief acknowledges that because Tysor explained

that "she had a Class A permit, was familiar with [t]itle 177 [of

the Nebraska Administrative Code], and testified to the various

instruments and testing procedures she used[,] Sollman did not

object to her testimony.” Brief for appellant at 17. As such, the

evidence offered by Tysor came in without objection and established that Sollmon was still over the legal limit nearly 3 hours

after the accident. The State asserts this evidence adequately

supports the verdict regardless of evidence from the separate

test provided in exhibit 5.

In response to the evidence offered by Tysor, and the State's

argument here, Sollman argues that the results of this test

were taken at 9:21 p.m., nearly 3 hours after the accident,

and that there were no calculations performed to estimate the

metabolism of the sample back to the time of the accident.

Accordingly, he argues that the evidence relating to this second

test was not sufficient to support the verdict and further demonstrates how the first result created prejudicial error.

[22-24] But a similar temporal-based argument was made

by the defendant in State v. Dinslage, 280 Neb. 659, 664,

789 N.W.2d 29, 34 (2010), in which the Nebraska Supreme

Court held:

In State v. Kubik, [235 Neb. 612, 456 N.W.2d 487

(1990),] we explained that the State is not required to

prove a temporal nexus between the test and the defendant's alcohol level at the moment he or she was operating the vehicle. It would be an impossible burden on the

State to conduct such an extrapolation when its accuracy

depends on the defendant's willingness to testify and his

or her honesty in reporting all relevant factors, including

the time and quantity of consumption. Thus, matters of

delay between driving and testing are properly viewed as

going to the weight of the breath test results, rather than

to the admissibility of the evidence. And a valid breath

test given within a reasonable time after the accused

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was stopped is probative of a violation. We speculated in

Kubik that there might in some cases be a "delay . . . so

substantial as to render the test results nonprobative of

the accused's impairment or breath alcohol level while

driving.” But we held that a breath test given "less than

1 hour” after the defendant was stopped did not entail an

unreasonable delay.

We similarly find that under the circumstances of this case,

this valid blood test was obtained within a reasonable time

after the motor vehicle accident which resulted in severe

injuries to Sollman and the death of the victim. In so finding,

we are cognizant of the facts that this accident took place at

the outskirts of the Omaha, Nebraska, metropolitan area; that

Sollman had to be extricated from his vehicle, "life flighted”

to UNMC, and treated for injuries; and that Deputy Sanderson

arrived at the scene, drafted a blood draw warrant, had it authorized by a judge, then drove to UNMC in order to locate personnel to collect the blood sample from Sollman. Under these

circumstances, we cannot find the nearly 3 hours it took to

obtain the blood sample pursuant to the warrant unreasonable.

Further, there is no evidence in this record that Sollman, who

was experiencing a serious medical condition, had consumed

additional alcohol after the accident but before the blood test.

The test sample, as attested by Tysor, was validly drawn and

tested, and the results indicated Sollman was significantly

over the legal limit nearly 3 hours after the accident. This evidence of Sollman's alcohol-based impairment was consistent

with testimony which described the erratic nature in which

Sollman operated his vehicle just prior to, and at the time of,

the accident.

[25-29] As the Nebraska Supreme Court held in State v.

Kidder, 299 Neb. 232, 243-45, 908 N.W.2d 1, 9-10 (2018):

Pursuant to Neb. Evid. R. 103, Neb. Rev. Stat.

§ 27-103(1) (Reissue 2016), "[e]rror may not be predicated upon a ruling which admits or excludes evidence

unless a substantial right of the party is affected[.]”

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When it comes to evidentiary error, this statutory authority forms the foundation for this court's harmless error

jurisprudence. Generally speaking, in criminal cases, the

purpose of harmless error review is to ensure convictions

are not set aside "'for small errors or defects that have

little, if any, likelihood of having changed the result of

the trial.'”

Harmless error jurisprudence recognizes that not all

trial errors, even those of constitutional magnitude, entitle

a criminal defendant to the reversal of an adverse trial

result. It is only prejudicial error, that is, error which cannot be said to be harmless beyond a reasonable doubt,

which requires that a conviction be set aside.

When determining whether an alleged error is so prejudicial as to justify reversal, courts generally consider

whether the error, in light of the totality of the record,

influenced the outcome of the case. In other words, harmless error review looks to the basis on which the jury

actually rested its verdict. The inquiry is not whether

in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the

actual guilty verdict rendered was surely unattributable

to the error.

In conducting this analysis, an appellate court looks

to the entire record and views the erroneously admitted

evidence relative to the rest of the untainted, relevant

evidence of guilt. Overwhelming evidence of guilt can be

considered in determining whether the verdict rendered

was surely unattributable to the error, but overwhelming

evidence of guilt is not alone sufficient to find the erroneous admission of evidence harmless. An additional consideration is whether the improperly admitted evidence

was cumulative and tended to prove the same point as

other properly admitted evidence.

Assuming without deciding that the court erred in allowing the admission of exhibit 5, which included additional

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evidence that Sollman's blood alcohol level exceeded the legal

limit, the admission of that evidence was simply cumulative to

the properly admitted evidence that Sollman's blood alcohol

level exceeded the legal limit as attested by Tysor. The record

in this case affirmatively demonstrates that any error in allowing the admission of exhibit 5 was harmless. Accordingly, this

assignment of error fails.

3. Sufficiency of Evidence

on Count 2—DUI

Sollman next argues that there was insufficient evidence to

convict him of DUI, in violation of § 60-6,196(1)(b). Section

60-6,196(1) provides, in pertinent part: "It shall be unlawful

for any person to operate or be in the actual physical control of

any motor vehicle . . . [w]hen such person has a concentration

of eight-hundredths of one gram or more by weight of alcohol

per one hundred milliliters of his or her blood.”

[30,31] In reviewing a criminal conviction for a sufficiency

of the evidence claim, whether the evidence is direct, 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. State v. Smith, 302 Neb. 154,

922 N.W.2d 444 (2019). When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction,

the relevant question for an appellate court is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v.

Williams, 306 Neb. 261, 945 N.W.2d 124 (2020).

Applying this standard, the evidence reflects that following this serious accident, investigators determined Sollman

to have been the operator of a vehicle traveling at an excessive rate of speed just prior to the accident and to have been

driving erratically immediately prior thereto; that while being

extricated from his vehicle, Sollman smelled of alcohol; that

investigators found an empty bottle of alcohol in his vehicle;

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and that through the use of a warrant, investigators obtained

a blood sample when Sollman became reasonably available

to provide it which revealed Sollman's blood alcohol level

significantly exceeded the legal limit nearly 3 hours after

his being involved in the accident, which resulted in the victim's death. Although Sollman argues the temporal connection

involving the blood test in relation to the accident should result

in a finding that the evidence here was insufficient to convict

him, we have already found that such evidence was probative

of Sollman's condition under these circumstances, and taking it

together with all the evidence viewed in the light most favorable to the State, we hold that a rational trier of fact could have

found the essential element of this crime beyond a reasonable

doubt. This assignment of error fails.

4. Motion to Dismiss and Finding of

Guilt—Wanton Disregard

Sollman next argues that there was insufficient evidence to

convict him of operating a motor vehicle in such a manner as

to indicate an indifferent or wanton disregard for the safety of

persons or property, in violation § 60-6,213.

Without repeating the full scope of review governing sufficiency of the evidence determination cited above, we review

the record to determine whether the evidence in this record

is sufficient to find that a rational trier of fact could find that

Sollman operated his vehicle in a manner which would indicate

an indifferent or wanton disregard for the safety of persons or

property, in violation of § 60-6,213. We find that it is.

Although Sollman acknowledges the evidence of his excessive speed, he argues that the speed of a defendant's vehicle

alone is not, in and of itself, determinative of a violation of

§ 60-6,213, citing State v. Howard, 253 Neb. 523, 571 N.W.2d

308 (1997). But the evidence in this record was not limited to Sollman's excessive speed. It included the testimony

of Nowling, who discussed the erratic nature of Sollman's

conduct leading up to the accident. In relation to that testimony, Sollman argues that "Nowling never identified . . .

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Sollman as the driver [of the vehicle that he observed] at any

point during trial” and "Nowling testified that he was unable

to see the driver's face despite the fact he observed the driver

stand on the side of the road next to his car.” Brief for appellant at 19-20.

Regardless of whether Nowling could not specifically identify Sollman's face, his testimony was sufficient to identify

that it was Sollman's vehicle he observed driving in an erratic

fashion just prior to the accident, and we will not resolve

conflicts in the evidence, pass on the credibility of witnesses,

or reweigh the evidence. The testimony of the investigators

here taken together with the testimony of Nowling was sufficient for a rational trier of fact to find the essential element

of this offense beyond a reasonable doubt. This assignment of

error fails.

5. Motion to Suppress

Sollman's fifth assigned error is that the district court

erred in overruling his motion to suppress the statements he

made to law enforcement while in the hospital recovering

from his injuries. Sollman argues that at no time prior to his

conversations with Deputy Sanderson or Sergeant Percifield

was he advised of his Miranda rights and that any incriminating statement made during those conversations should have

been suppressed.

[32-38] The Nebraska Supreme Court has recognized that

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.

Ed. 2d 694 (1966), prohibits the use of statements derived

during custodial interrogation unless the prosecution demonstrates the use of procedural safeguards that are effective to

secure the privilege against self-incrimination. State v. Benson,

305 Neb. 949, 943 N.W.2d 426 (2020). More specifically, the

court held:

Miranda requires law enforcement to give a particular set

of warnings to a person in custody before interrogation,

including that he or she has the right to remain silent, that

any statement he or she makes may be used as evidence

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against him or her, and that he or she has the right to

an attorney. These warnings are considered prerequisites

to the admissibility of any statement made by a defendant

during custodial interrogation.

Miranda warnings are required only when a suspect

interrogated by the police is in custody. The ultimate

inquiry for determining whether a person is in custody is

whether there is a formal arrest or restraint on freedom

of movement of degree associated with a formal arrest.

Custody is to be determined based on how a reasonable

person in the suspect's situation would perceive his or

her circumstances. Stated another way, a seizure under

the Fourth Amendment occurs only if, in view of all

the circumstances surrounding the incident, a reasonable

person would have believed that he or she was not free

to leave.

In considering whether a suspect is in custody for

Miranda purposes, relevant considerations include, but

are not limited to the location of the interaction, who

initiated the interaction, the duration of the interaction,

the type and approach of questioning, the freedom of

movement of the suspect, the duration of the interaction,

and whether the suspect was placed under arrest at the

termination of the interaction.

State v. Benson, 305 Neb. at 963-64, 943 N.W.2d at 439-40.

Applying this doctrine, Sollman argues that the investigating

officers' questions here amounted to a custodial interrogation.

In furtherance of that position, Sollman argues:

Because the District Court made a factual finding that

officers were conducting a DUI investigation when they

interviewed . . . Sollman at the hospital, and he had three

broken limbs, it is clear that . . . Sollman was unable

to leave during questioning even if he wanted to. These

facts amount to . . . Sollman['s] being under custodial

interrogation, just like in Mincey v. Arizona, 437 U.S.

385[, 98 S. Ct. 2408, 57 L. Ed. 2d 290] (1978), where

the defendant was in great pain while in the hospital,

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and the United States Supreme Court determined he was

under custodial interrogation.

Brief for appellant at 21.

Although the U.S. Supreme Court did find that an investigation of a defendant could ripen into a custodial interrogation

in a hospital setting, it made that finding on facts dissimilar to

the case at bar. In Mincey v. Arizona, 437 U.S. 385, 398-99, 98

S. Ct. 2408, 57 L. Ed. 2d 290 (1978), the hospitalized defendant was not only in "'unbearable'” pain, but was described

as being depressed almost to the point of coma; encumbered

by tubes, needles, and breathing apparatus; and in a condition so severe the Court concluded that his "statements . . .

were not '"the product of a rational intellect and a free will”'”

and remarked that even "[i]n this debilitated and helpless

condition, [he] clearly expressed his wish not to be interrogated” by requesting a lawyer and repeatedly asking the officer

to stop.

The same cannot be said here. Although the record indicates

Sollman was injured and unable to leave the room without

assistance, Deputy Sanderson described Sollman as "with it”

and capable of carrying on a conversation. Deputy Sanderson

described Sollman as being properly responsive to him and

able to hold a conversation and indicated that at no time did

Sollman make an effort to end the interview or express any

desire to be uncooperative.

The Nebraska Supreme Court reviewed a similar factual

scenario in State v. Melton, 239 Neb. 506, 476 N.W.2d 842

(1991). In Melton, a police officer engaged in multiple conversations with the defendant in a hospital following an automobile accident which resulted in the death of his passenger.

At that time, police were unable to determine the driver of

the vehicle, so they questioned the defendant while in the

hospital as part of their ongoing investigation governing the

incident. Although in a recorded interview, the defendant told

investigators that his passenger had been driving, the police

eventually determined that the defendant had been driving. He

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later moved to suppress statements made during his interview,

arguing the statements were made during a custodial interrogation and provided without Miranda warnings. On those facts,

the court in Melton concluded:

We find that [the defendant] was not in custody. He

was admitted to the hospital for treatment, was not under

formal arrest, and was questioned by officers during the

routine course of an accident investigation. Although it

is not dispositive, [the defendant] did not incriminate

himself in his statement to the police at the hospital, in

which statement he denied being the driver of the vehicle

involved in the accident, the same position he maintained

at trial.

239 Neb. at 510, 476 N.W.2d at 845.

After reviewing the record in the instant case, we likewise

find that the officers' questioning him was part of their routine

investigation governing this motor vehicle accident and that

Sollman was not in custody. Although the record indicates

Sollman could not remove himself from the room without

assistance, nothing about this record suggests that Sollman's

statements were not the "'"product of a rational intellect and

a free will”'” or that the officers' questioning or conduct here

rose to the level of a custodial interrogation. See Mincey v.

Arizona, 437 U.S. at 398. We also note that although not dispositive, Sollman's statements were likewise not incriminating,

insofar as he denied drinking alcohol immediately prior to the

accident. We hold that the district court did not err in overruling Sollman's motion to suppress his statements made from the

hospital or admitting those same statements during the course

of the trial.

6. Excessive Sentences

Sollman's final assignment of error is that the sentences

imposed are excessive.

Sollman was convicted of count 1, motor vehicle homicide—DUI, a Class IIA felony; count 2, DUI, a Class W

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misdemeanor; and count 3, reckless driving, a Class III misdemeanor. See, § 28-306(3)(b) (motor vehicle homicide);

§ 60-6,196 (DUI); § 60-6,213 (reckless driving). Sollman

was sentenced to 14 to 20 years' imprisonment and a 15-year

license revocation on count 1, which sentence is within the

statutory sentencing range for Class IIA felonies of 0 to 20

years' imprisonment. See Neb. Rev. Stat. § 28-105 (Cum. Supp.

2018). Additionally, the court properly revoked Sollman's driver's license for a period of 15 years as is required pursuant to

§ 28-306(3)(b).

On count 2, the court sentenced Sollman to 60 days' imprisonment and fined him $500, which sentence is within the statutory sentencing range for Class W misdemeanors, which are

punishable by a mandatory minimum of 7 days' imprisonment

and a $500 fine and a maximum of 60 days' imprisonment and

a $500 fine. See Neb. Rev. Stat. § 28-106 (Reissue 2016). The

court also revoked Sollman's license for 6 months as required

by Neb. Rev. Stat. § 60-6,197.03 (Cum. Supp. 2018).

For count 3, reckless driving, the district court sentenced

Sollman to 90 days' imprisonment. See § 60-6,213. This sentence is within the statutory sentencing range for Class III

misdemeanors, which are punishable by 0 to 3 months' imprisonment and/or a $500 fine. See § 28-106.

[39-41] Where a sentence imposed within the statutory

limits is alleged on appeal to be excessive, the appellate court

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as

any applicable legal principles in determining the sentence to

be imposed. State v. Montoya, 305 Neb. 581, 941 N.W.2d 474

(2020). In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant's (1)

age, (2) mentality, (3) education and experience, (4) social and

cultural background, (5) past criminal record or record of lawabiding conduct, and (6) motivation for the offense, as well as

(7) the nature of the offense and (8) the amount of violence

involved in the commission of the crime. Id. However, the

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sentencing court is not limited to any mathematically applied

set of factors. State v. Manjikian, 303 Neb. 100, 927 N.W.2d

48 (2019). The appropriateness of a sentence is necessarily a

subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the

facts and circumstances surrounding the defendant's life. State

v. Montoya, supra.

Here, at the sentencing hearing, the district court stated

that it had considered the contents of the PSR, including

documentation that Sollman was 46 years old at the time

of the PSR, was married, and had nine dependent children;

Sollman's criminal history and LS/CMI scores; the comments

made at sentencing; the circumstances surrounding the accident, including Sollman's intoxication level and speed; and the

seriousness of the crimes committed by Sollman. The district

court also noted that Sollman blamed the victim for the accident and that the court found Nowling's account of the events

leading up to the accident credible. Further, the court reviewed

law enforcement's accident reconstruction and calculations,

which determined the accident was caused by speeding, but

the court noted, "The accident was [caused by] an intoxication

level more than two times the legal limit, excessive speeding

and erratic driving all the way up to the point in time this

occurred.” The district court further found that imprisonment

was necessary to protect the public due to the substantial risk

that Sollman would engage in additional criminal conduct if

placed on probation and "a lesser sentence would depreciate the seriousness of the offense or promote disrespect of

the law.”

The PSR indicated that Sollman's criminal history includes a

conviction for theft in Indiana and charges of robbery, criminal

mischief, and kidnapping in Oregon for which Sollman was

fined, sentenced to 90 days' imprisonment, and given 5 years'

probation. Further, Sollman's LS/CMI scores were assessed

to be in the "Medium/Low risk range to reoffend” (emphasis omitted). However, the probation officer completing the

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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. SOLLMAN

Cite as 29 Neb. App. 356

PSR noted that Sollman "does not feel [Clausen] is a victim.

He regrets his action of drinking the night of [the accident],

but does not feel he has done anything else wrong.” Sollman's

victim-blaming is evident in his defendant's statement, which

set forth in pertinent part:

I was involved in a car accident where I had been

drinking. Unfortunately[, the victim] pulled out from a

stop sign to turn left right in front of me when I was

southbound on HWY 6 and had right away [sic]. I was

seriously injured and [a]ir lifted from the scene and she

sadly died.

Based upon the district court's thorough consideration of

the relevant factors and the information contained in the PSR;

the fact that the sentences imposed were within the relevant

statutory sentencing ranges; Sollman's criminal history; his

risk to reoffend; the circumstances surrounding the accident,

including Sollman's intoxication level and speed; Sollman's

refusal to accept responsibility for his role in the offenses and

continual victim-blaming; and the seriousness of the crimes

committed by Sollman which resulted in the death of the victim, we determine the sentences imposed were not an abuse

of discretion.

Having considered and rejected Sollman’s assigned errors, we affirm his convictions and sentences.