State v. Montoya ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/08/2019 01:06 AM CST
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Nebraska Supreme Court A dvance Sheets
304 Nebraska R eports
STATE v. MONTOYA
Cite as 304 Neb. 96State of Nebraska, appellee, v.
Carla Montoya, appellant.
___ N.W.2d ___
Filed September 27, 2019. No. S-18-342.
1. Constitutional Law: Motions to Suppress: Confessions: Miranda
Rights: Appeal and Error. In reviewing a motion to suppress a state-
ment based on its claimed involuntariness, including claims that law
enforcement procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.
1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a two-part
standard of review. Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error. Whether those facts meet con-
stitutional standards, however, is a question of law, which an appellate
court reviews independently of the trial court’s determination.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, which an appellate court reviews independently of the lower
court’s determination.
3. Constitutional Law: Statutes: Judgments: Appeal and Error. The
constitutionality and construction of statutes are questions of law,
regarding which appellate courts are obligated to reach conclusions
independent of those reached by the court below.
4. Trial: Convictions: Evidence: Appeal and Error. An appellate court
will sustain a conviction in a bench trial of a criminal case if the prop-
erly admitted evidence, viewed and construed most favorably to the
State, is sufficient to support that conviction. In making this determi-
nation, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, evaluate explanations, or reweigh
the evidence presented, which are within a fact finder’s province for
disposition. Instead, the relevant question 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.
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Cite as 304 Neb. 965. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
6. Miranda Rights. The warnings required by Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), are required only
when a suspect interrogated by the police is “in custody.”
7. ____. The ultimate inquiry for determining whether a person is “in cus-
tody” for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 (1966), is simply whether there is a formal arrest or
restraint on freedom of movement of the degree associated with a for-
mal arrest.
8. ____. The test for custody under Miranda v. Arizona, 384 U.S. 436, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is to be determined based on how
a reasonable person in the suspect’s situation would perceive his or her
circumstances. It is an objective inquiry and does not depend on the sub-
jective views harbored by either the interrogating officer or the person
being interrogated.
9. ____. The test for determining custody under Miranda v. Arizona, 384
U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), involves two discrete
inquiries: first, what were the circumstances surrounding the interroga-
tion; and second, given those circumstances, would a reasonable person
have felt he or she was not at liberty to terminate the interrogation
and leave.
10. Constitutional Law: Confessions. The 5th Amendment to the U.S.
Constitution, along with the Due Process Clause of the 14th Amendment,
prevents the use of involuntary confessions in criminal convictions.
11. Miranda Rights. The question of whether a custodial interrogation
complies with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966), is distinct from the question of whether statements
made during a custodial interrogation were sufficiently voluntary.
12. Confessions: Proof. The State has the burden to prove that a defend­
ant’s statement was voluntary and not coerced.
13. Confessions. Whether a defendant’s statement was voluntarily given
depends on the totality of the circumstances. Factors to consider include
the interrogator’s tactics, the details of the interrogation, and any char-
acteristics of the accused that might cause his or her will to be eas-
ily overborne.
14. Confessions: Police Officers and Sheriffs. While the confession of an
accused may be involuntary and inadmissible if obtained in exchange
for a promise of leniency, mere advice or exhortation by the police that
it would be better for the accused to tell the truth, when unaccompanied
by either a threat or promise, does not make a subsequent confession
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STATE v. MONTOYA
Cite as 304 Neb. 96involuntary. In order to render a statement involuntary, any benefit
offered to a defendant must be definite and must overbear his or her
free will.
15. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
16. Criminal Law: Minors: Intent. Neb. Rev. Stat. § 28-707(1)(a) through
(f) (Reissue 2016) defines the offense of child abuse. Then, § 28-707(3)
through (8) classifies the level of any such offense based on two factors:
the actor’s state of mind when committing the offense and the degree of
harm to the child resulting from the offense.
17. Criminal Law: Minors: Intent: Proof. To convict a defendant of the
Class IB felony of knowing and intentional child abuse resulting in
death under Neb. Rev. Stat. § 28-707 (Reissue 2016), the State must
prove the defendant knowingly and intentionally caused or permitted the
child to be abused in one or more of the ways defined in § 28-707(1),
and also must prove the offense resulted in the child’s death, as required
by § 28-707(8). It is not necessary, however, to prove the defendant
intended the abuse to result in death.
18. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
19. Plea in Abatement: Evidence: Appeal and Error. An error in a rul-
ing on a plea in abatement challenging whether there was sufficient
evidence to bind a case over for trial is cured by a subsequent finding
at trial of guilt beyond a reasonable doubt which is supported by suf-
ficient evidence.
20. Criminal Law: Evidence: Appeal and Error. When a criminal defend­
ant challenges the sufficiency of the evidence upon which a conviction
is based, 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.
21. Constitutional Law: Statutes: Standing: Proof. Standing to challenge
the constitutionality of a statute under the federal or state Constitution
depends upon whether one is, or is about to be, adversely affected by the
language in question. To establish standing, the contestant must show
that as a consequence of the alleged unconstitutionality, the contestant
is, or is about to be, deprived of a protected right.
22. Constitutional Law: Statutes. Courts will not decide a question con-
cerning the constitutionality of a statute unless such question has been
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STATE v. MONTOYA
Cite as 304 Neb. 96raised by a litigant whose interests are adversely affected by the ques-
tioned statute.
23. Constitutional Law: Statutes: Presumptions. Courts will presume
a statute to be constitutional and will resolve all reasonable doubts in
favor of its constitutionality.
24. Constitutional Law: Statutes: Proof. The burden to clearly demon-
strate that a statute is unconstitutional rests upon the party making the
claim of unconstitutionality.
25. Constitutional Law: Criminal Law: Statutes. A penal statute must be
construed so as to meet constitutional requirements if such can reason-
ably be done.
26. Equal Protection. The Equal Protection Clause does not forbid clas-
sifications; it simply keeps governmental decisionmakers from treating
differently persons who are in all relevant respects alike.
27. ____. When a classification created by state action does not jeopardize
the exercise of a fundamental right or categorize because of an inher-
ently suspect characteristic, the Equal Protection Clause requires only
that the classification rationally further a legitimate state interest.
28. Constitutional Law: Statutes: Legislature: Intent: Appeal and Error.
Under rational basis review, an appellate court will uphold a classifica-
tion created by the Legislature where it has a rational means of promot-
ing a legitimate government interest or purpose. In other words, the
difference in classification need only bear some relevance to the purpose
for which the difference is made.
29. Equal Protection: Proof. Under the rational basis test, whether an equal
protection claim challenges a statute or some other government act or
decision, the burden is upon the challenging party to eliminate any rea-
sonably conceivable state of facts that could provide a rational basis for
the classification.
30. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness
doctrine requires that a penal statute define the criminal offense with
sufficient definiteness that ordinary people can understand what conduct
is prohibited and in a manner that does not encourage arbitrary and dis-
criminatory enforcement.
31. Constitutional Law: Statutes: Standing. The test for standing to assert
a vagueness challenge is the same whether the challenge asserted is
facial or as applied. To assert a claim of vagueness, a defendant must
not have engaged in conduct which is clearly prohibited by the ques-
tioned statute. Furthermore, a defendant cannot maintain that the statute
is vague when applied to the conduct of others, because a court will not
examine the vagueness of the law as it might apply to the conduct of
persons not before the court.
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STATE v. MONTOYA
Cite as 304 Neb. 9632. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
court, an appellate court will not disturb a sentence imposed within the
statutory limits.
33. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
34. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in con-
sidering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
35. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation 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.
36. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
Appeal from the District Court for Madison County: James
G. Kube, Judge. Affirmed.
Ronald E. Temple, of Fitzgerald, Vetter, Temple & Bartell,
for appellant.
Douglas J. Peterson, Attorney General, and Austin N. Relph
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
Carla Montoya was convicted of knowing and intentional
child abuse resulting in death, in violation of Neb. Rev.
Stat. § 28-707(1) and (8) (Reissue 2016). She was sentenced
to prison for a term of 55 to 75 years. Finding no merit to
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304 Nebraska R eports
STATE v. MONTOYA
Cite as 304 Neb. 96any of her assignments of error, we affirm her conviction
and sentence.
I. FACTS
At approximately 1 a.m. on March 13, 2016, Montoya
brought her 41⁄2-year-old daughter, C.H., to the emergency room
at Faith Regional Health Services (Faith Regional) in Norfolk,
Nebraska. C.H. was unresponsive, tremoring, and posturing,
and she had bruising on her body. A CT scan revealed bilat-
eral bleeding between the brain and the skull. C.H. was “life-
flighted” to Children’s Hospital in Omaha, Nebraska, where
she subsequently died from her injuries. The cause of death
was blunt force trauma to the head.
1. Police Investigation
Shortly after C.H. was brought to the emergency room,
staff there contacted police to report possible child abuse. The
police conducted a series of three interviews with Montoya;
two of those interviews occurred the same day that C.H. was
taken to Faith Regional, and the third interview occurred the
next day.
(a) First Interview
When police arrived at Faith Regional, an officer asked to
speak with Montoya in a private area. They proceeded to a
family waiting room where the officer questioned Montoya
about how C.H. had sustained her injuries. This interview,
which was recorded on the officer’s body microphone, was
suppressed by the trial court. That suppression ruling has not
been challenged on appeal.
(b) Second Interview
Shortly after the first interview ended, the lead investigator,
Josh Bauermeister, arrived at Faith Regional. After C.H. was
life-flighted to Children’s Hospital in Omaha, Bauermeister
was introduced to Montoya and told her he wanted “to find out
a little bit about what happened.” He asked whether Montoya
would allow police to search and photograph her apartment
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STATE v. MONTOYA
Cite as 304 Neb. 96and whether she would give a recorded interview at the police
station. Montoya agreed to both requests. Montoya’s boyfriend
then took officers to the apartment, and Montoya—who did not
have a car available—rode with Bauermeister to the police sta-
tion in the front seat of his unmarked patrol car.
The recorded interview occurred in an interview room at the
police station, and lasted about 1 hour. At the beginning of the
interview, Bauermeister told Montoya that she was not under
arrest, that she did not have to speak with him, and that she
could leave at any time. Bauermeister also explained how to
leave the police station from the interview room.
During the interview, Montoya explained that around noon
on March 12, 2016, she became frustrated that C.H. would not
stay in her bed and would not stop crying, so she squeezed
C.H.’s torso hard enough to leave marks and then threw C.H.
onto her bed three times. Montoya said that C.H. struck her
head on the wall the third time she was thrown. After that,
C.H. fell asleep around 1 p.m. and slept until around 4 p.m.,
when she woke briefly before falling asleep again. Around 9
p.m., C.H. began to vomit. Montoya put C.H. into the bathtub
to wash her off, but C.H. would not stand; Montoya described
C.H.’s body as “Jell-O.” Montoya said that when she turned on
the cold water, C.H. became responsive and was able to answer
questions. Montoya asked C.H. whether her head hurt, and
C.H. answered yes. Montoya also asked whether C.H. wanted
ice cream, and C.H. again answered yes.
Montoya and her boyfriend put C.H. in the car to get some
ice cream. They proceeded to drive several places with C.H.,
including to Montoya’s mother’s house, a grocery store, a
discount department store, and a fast-food restaurant. When
they returned home, C.H. was unresponsive. Montoya called a
friend who convinced her to take C.H. to the hospital.
At the end of the recorded interview, Bauermeister asked
Montoya to write a statement summarizing her interview, and
she complied. When Montoya finished writing out her three-
page statement, she left the police station.
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STATE v. MONTOYA
Cite as 304 Neb. 96Bauermeister subsequently obtained an arrest warrant, and
Montoya was arrested at Children’s Hospital in Omaha on
March 14, 2016. She was transported to the downtown Omaha
police station, where she was interviewed a third time.
(c) Third Interview
Montoya’s third interview was conducted by Bauermeister
on March 14, 2016, at 1:30 p.m. and lasted 11⁄4 hours.
Before questioning Montoya, Bauermeister spoke about the
importance of telling the truth during the interview, saying,
“Whatever you do today though, don’t lie about it, because if
you lie about anything or fail to tell me anything, it’s going to
look really bad for you when you go to court.” Bauermeister
also advised Montoya of her rights under Miranda v.
Arizona1 before questioning her. Throughout the interview,
Bauermeister continued to emphasize the importance of being
truthful. His statements in that regard are addressed more
fully in our analysis of Montoya’s assignment of error relating
to the third interview.
During the third interview, Montoya admitted she slammed
C.H. into the wall as hard as she could and held her there.
Montoya explained that she also pushed C.H. against the wall
three or four times to stop her from getting away, all while
screaming and yelling at her to “shut up” and to stop crying.
Montoya said that C.H.’s head slammed into the wall and that
Montoya pressed C.H. so hard against the wall that she worried
it would break her ribs. Additionally, Montoya said that when
she threw C.H. onto her bed, she did it forcefully and C.H. hit
her head on the bedframe both the first and last time she was
thrown. Montoya said she did not take C.H. to the hospital
sooner, because she was afraid what people might think about
the bruises and because she was in denial about hurting C.H.
and was hoping she might recover.
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
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STATE v. MONTOYA
Cite as 304 Neb. 96Toward the end of the third interview, Bauermeister asked
Montoya to write out what happened, and she complied. Her
written statement tracked generally with her statements to
police during the interview.
C.H. died from her injuries on March 20, 2016, after which
the State charged Montoya with knowing and intentional child
abuse resulting in death, a Class IB felony.2
2. Pretrial Proceedings
(a) Motions to Suppress
Montoya moved to suppress all of her oral and written
statements to police. She claimed she was in custody during
all three interviews and argued her statements should be sup-
pressed, because (1) in the first and second interviews, she was
not advised of her Miranda rights, and (2) in the second and
third interviews her will was overborne by coercive interroga-
tion tactics.
After a hearing, the trial court sustained in part and denied
in part Montoya’s motion to suppress. Regarding the first inter-
view, the trial court sustained the motion to suppress, finding
Montoya was in custody during police questioning at Faith
Regional and should have received the Miranda advisement.
As stated, the State has not challenged the suppression of the
first interview.
Regarding the second interview, the court found that under
the totality of the circumstances, Montoya was not in cus-
tody and her statements were made freely and voluntarily.
Regarding the third interview, the trial court found that the
officer’s interrogation tactics did not amount to improper
threats, inducements, or lies and that Montoya’s confession
was freely and voluntarily made. The court thus overruled
Montoya’s motion to suppress as it regarded both the second
and third interviews.
2
§ 28-707(1) and (8).
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Cite as 304 Neb. 96(b) Plea in Abatement
After the court ruled on Montoya’s motion to suppress,
Montoya was permitted to withdraw her plea of not guilty in
order to file a plea in abatement challenging the sufficiency of
the evidence to bind the case over to district court. In support
of her plea in abatement, Montoya argued the State had not
offered any evidence that she intended to kill C.H., and she
suggested that a finding of guilt under § 28-707 requires the
State to prove the defendant had specific intent to cause the
resulting harm. The trial court rejected Montoya’s interpreta-
tion of § 28-707, reasoning it was inconsistent with the plain
language of the statute and with settled precedent from both
this court3 and the Nebraska Court of Appeals.4 The trial court
found the evidence offered at the preliminary hearing was suf-
ficient to establish probable cause that Montoya committed
the crime of intentional child abuse resulting in death under
§ 28-707, and it overruled the plea in abatement.
(c) Motion to Quash
Once the plea in abatement was overruled, Montoya filed
a motion to quash the information. In support of the motion,
Montoya argued that unless § 28-707 was construed to require
proof that she intended to cause the resulting harm to the
child, the statute would be unconstitutional, both facially and
as applied. The trial court overruled the motion to quash,
rejecting all of Montoya’s facial constitutional challenges and
reserving ruling on the as-applied challenges.
3. Bench Trial and Sentencing
After Montoya reentered a plea of not guilty, she waived her
right to a jury and a bench trial was held. Montoya renewed
her motion to suppress and her constitutional challenges to
§ 28-707, and the court overruled them. In an order entered
3
See State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).
4
See State v. Parks, 5 Neb. App. 814, 565 N.W.2d 734 (1997), reversed on
other grounds 253 Neb. 939, 573 N.W.2d 453 (1998).
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Cite as 304 Neb. 96February 1, 2018, the district court found beyond a reasonable
doubt that
on March 12, 2016, [Montoya] knowingly and inten-
tionally placed her minor child, [C.H.], in a situation
that endangered that child’s life, and that [Montoya] did
knowingly and intentionally cruelly punish this child,
which ultimately caused and resulted in the death of
[C.H.] approximately one week later, on March 20, 2016.
Additionally, the Court specifically finds that this offense
was not committed negligently, nor did [Montoya] act
recklessly. Her actions directed against the child . . .
were intentional.
Montoya was found guilty of intentional child abuse resulting
in death, a Class IB felony. She was sentenced to an indeter-
minate prison term of 55 to 75 years. Montoya filed this timely
appeal, which we moved to our docket.
II. ASSIGNMENTS OF ERROR
Montoya assigns, consolidated and restated, that the trial
court erred in (1) overruling her motion to suppress, (2) over-
ruling her plea in abatement, (3) overruling her motion to
quash and rejecting her constitutional challenges, (4) finding
her guilty of intentional child abuse resulting in death, and (5)
imposing an excessive sentence.
III. STANDARD OF REVIEW
[1] In reviewing a motion to suppress a statement based on
its claimed involuntariness, including claims that law enforce-
ment procured it by violating the safeguards established by the
U.S. Supreme Court in Miranda,5 an appellate court applies
a two-part standard of review.6 Regarding historical facts, an
appellate court reviews the trial court’s findings for clear error.7
Whether those facts meet constitutional standards, however, is
5
Miranda, supra note 1.
6
State v. Clifton, 296 Neb. 135, 892 N.W.2d 112 (2017).
7
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Cite as 304 Neb. 96a question of law, which an appellate court reviews indepen-
dently of the trial court’s determination.8
[2] Statutory interpretation presents a question of law, which
an appellate court reviews independently of the lower court’s
determination.9
[3] The constitutionality and construction of statutes are
questions of law, regarding which appellate courts are obli-
gated to reach conclusions independent of those reached by the
court below.10
[4] An appellate court will sustain a conviction in a bench
trial of a criminal case if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support that conviction.11 In making this determination, we
do not resolve conflicts in the evidence, pass on the credibility
of witnesses, evaluate explanations, or reweigh the evidence
presented, which are within a fact finder’s province for dispo-
sition.12 Instead, the relevant question 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.13
[5] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court.14
IV. ANALYSIS
1. Motion to Suppress
Montoya argues the trial court erred in overruling her
motion to suppress statements made in the second and third
8
Id.9
State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018).
10
See State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
11
State v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014).
12
Id.13
Id.14
State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).
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Cite as 304 Neb. 96police interviews. Regarding the second interview, Montoya
claims her statements should have been suppressed because
police questioned her without first giving her the Miranda
advisement. Regarding both the second and third interviews,
Montoya claims her will was overborne by coercive police
tactics and argues her statements should have been suppressed
as involuntary. We address each argument in turn.
(a) Miranda Advisement
[6] In Miranda, the U.S. Supreme Court concluded that
“without proper safeguards the process of in-custody inter-
rogation of persons suspected or accused of crime contains
inherently compelling pressures which work to undermine
the individual’s will to resist and to compel him to speak
where he would not otherwise do so freely.”15 To com-
bat against these pressures and protect the privilege against
self-incrimination, Miranda announced a set of prophylactic
warnings that law enforcement officers must give before
interrogating someone who is in custody. “Prior to any ques-
tioning, the person must be warned that he has a right to
remain silent, that any statement he does make may be
used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed.”16
These warnings are considered “prerequisites to the admis-
sibility of any statement made by a defendant” during custo-
dial interrogation.17 But Miranda warnings are required only
when a suspect interrogated by the police is “in custody.”18
And the fact that a suspect is questioned by police at
15
Miranda, supra note 1, 384 U.S. at 467.
16
Id., 384 U.S. at 444. Accord, State v. Schriner, 303 Neb. 476, 929
N.W.2d 514 (2019); State v. Juranek, 287 Neb. 846, 844 N.W.2d 791(2014).
17
Miranda, supra note 1, 384 U.S. at 476.
18
Thompson v. Keohane, 516 U.S. 99, 116 S. Ct. 457, 133 L. Ed. 2d 383(1995).
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Cite as 304 Neb. 96the station house does not necessarily render the question-
ing custodial.19
[7-9] Both the U.S. Supreme Court and this court have
emphasized that the ultimate inquiry for determining whether
a person is “in custody” for purposes of Miranda “‘is simply
whether there is a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.’”20
The Miranda custody test is to “be determined based on how
a reasonable person in the suspect’s situation would perceive
his [or her] circumstances.”21 It is an objective inquiry and
does not depend on the subjective views harbored by either
the interrogating officer or the person being interrogated.22
The U.S. Supreme Court has described the Miranda custody
test as involving two discrete inquiries: “‘first, what were
the circumstances surrounding the interrogation; and second,
given those circumstances, would a reasonable person have
felt he or she was not at liberty to terminate the interrogation
and leave.’”23
In State v. Rogers,24 we observed that a “large body of
case law” had developed to assist courts in identifying which
circumstances may be most relevant to the Miranda custody
inquiry. Rogers mentioned eight such circumstances, includ-
ing: (1) the location of the interrogation and whether it was a
place where the defendant would normally feel free to leave;
19
See, e.g., California v. Beheler, 463 U.S. 1121, 103 S. Ct. 3517, 77 L. Ed.
2d 1275 (1983); Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L.
Ed. 2d 714 (1977).
20
Yarborough v. Alvarado, 541 U.S. 652, 662, 124 S. Ct. 2140, 158 L. Ed.
2d 938 (2004) (quoting Beheler, supra note 19). Accord In re Interest of
Tyler F., 276 Neb. 527, 755 N.W.2d 360 (2008).
21
Yarborough, supra note 20, 541 U.S. at 662. Accord In re Interest of Tyler
F., supra note 20.
22
Yarborough, supra note 20.
23
Id., 541 U.S. at 663 (quoting Thompson, supra note 18).
24
State v. Rogers, 277 Neb. 37, 57, 760 N.W.2d 35, 54 (2009).
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Cite as 304 Neb. 96(2) whether the contact with the police was initiated by them
or by the person interrogated and, if by the police, whether the
defendant voluntarily agreed to the interview; (3) whether the
defendant was told he or she was free to terminate the inter-
view and leave at any time; (4) whether there were restrictions
on the defendant’s freedom of movement during the interroga-
tion; (5) whether neutral parties were present at any time dur-
ing the interrogation; (6) the duration of the interrogation; (7)
whether the police verbally dominated the questioning, were
aggressive, were confrontational, were accusatory, threatened
the defendant, or used other interrogation techniques to pres-
sure the suspect; and (8) whether the police manifested to the
defendant a belief that the defendant was culpable and that they
had the evidence to prove it.25
In Rogers and several other cases analyzing custody under
Miranda,26 we also discussed the six “indicia of custody”
outlined by the Eighth Circuit Court of Appeals in U.S. v.
Axsom.27 The Axsom indicia include: (1) whether the suspect
was informed at the time of questioning that the questioning
was voluntary, that the suspect was free to leave or request the
officers to do so, or that the suspect was not considered under
arrest; (2) whether the suspect possessed unrestrained free-
dom of movement during questioning; (3) whether the suspect
initiated contact with authorities or voluntarily acquiesced to
official requests to respond to questions; (4) whether strong-
arm tactics or deceptive stratagems were used during question-
ing; (5) whether the atmosphere of the questioning was police
dominated; and (6) whether the suspect was placed under arrest
at the termination of the proceeding.28 The first three Axsom
25
Rogers, supra note 24.
26
See, id.; State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007); State v.
Mata, 266 Neb. 668, 668 N.W.2d 448 (2003), abrogated on other grounds,
Rogers, supra note 24.
27
U.S. v. Axsom, 289 F.3d 496 (8th Cir. 2002).
28
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Cite as 304 Neb. 96indicia are factors which, if present, tend to weigh against a
finding of custody, and the last three weigh in favor of a find-
ing of custody.29 However, Axsom emphasized that the indicia
were intended to be representative and not exclusive; a finding
of custody does not require the factual circumstances of a case
to present all six indicia.30
In the instant case, Montoya was not given the Miranda
advisement before the second interrogation. In analyzing
whether Montoya was in custody during that interrogation, the
district court recited the governing principles outlined above,
and it expressly analyzed each of the six Axsom indicia before
concluding, based on a review of all the circumstances sur-
rounding the interrogation, that Montoya was not in custody.
On appeal, Montoya argues the district court erred when it ana-
lyzed custody using the Axsom indicia without also expressly
addressing the eight circumstances we identified in Rogers.
She contends this is grounds for reversal. She is incorrect.
Both Rogers and Axsom offer guidance to courts when
analyzing the circumstances surrounding an interrogation to
determine whether a reasonable person in those circumstances
would have believed they were in custody, and both cases
were decided at a time when the U.S. Supreme Court had not
expressly identified relevant factors to consider in making the
Miranda custody determination. But neither Rogers nor Axsom
purported to develop an exclusive test which must be applied
in every case, and we expressly reject Montoya’s suggestion to
the contrary.
For the sake of completeness, we note that in 2012, the U.S.
Supreme Court, in Howes v. Fields,31 also identified several
“[r]elevant factors” for courts to consider when examining the
objective circumstances to determine whether a reasonable
29
Id.30
Id.31
Howes v. Fields, 565 U.S. 499, 509, 132 S. Ct. 1181, 182 L. Ed. 2d 17(2012).
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Cite as 304 Neb. 96person would have felt he or she was not at liberty to terminate
the interrogation and leave. These factors include the location
of the questioning, its duration, statements made during the
interview, the presence or absence of physical restraints during
the questioning, and the release of the interviewee at the end
of the questioning.32
While many appellate courts have developed factors to help
guide the Miranda custody determination,33 neither the U.S.
Supreme Court nor this court has developed a single set of fac-
tors that courts are required to apply in every case. So while
the factors identified in Howes, the circumstances summarized
in Rogers, and the indicia outlined in Axsom all provide guid-
ance, none are meant to be applied mechanically or exclusively
to determine whether a suspect is in custody for purposes of
Miranda. We reject Montoya’s argument that the district court
erred in not expressly considering each circumstance refer-
enced in Rogers.
Here, the district court properly considered the relevant
circumstances surrounding Montoya’s interrogation and made
specific factual findings which we review for clear error.34
Among others, the court found that Montoya voluntarily agreed
to ride with police to the station because she did not have a
car available. Once Montoya was in the interview room, she
was expressly told that she was not in custody, that she was
free to leave at any time, that she was not under arrest, and
that she would be walking out of the police station after the
interview. Nothing about the officer’s subsequent questioning
or conduct nullified these statements. In addition, Montoya
was instructed by police how to leave the police station from
the interview room, and during questioning, police did not
32
Id.33
See, e.g., U.S. v. Jones, 523 F.3d 1235 (10th Cir. 2008); U.S. v. Swanson,
341 F.3d 524 (6th Cir. 2003); U.S. v. Hayden, 260 F.3d 1062 (9th Cir.
2001); U.S. v. Fike, 82 F.3d 1315 (5th Cir. 1996), overruled on other
grounds, U.S. v. Brown, 161 F.3d 256 (5th Cir. 1998).
34
See Clifton, supra note 6.
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Cite as 304 Neb. 96position themselves in a way to prevent her from leaving if
she wished. Montoya was not handcuffed at any point, and her
freedom of movement was unrestrained. All of these findings
pertain to the circumstances surrounding the interrogation, and
all are supported by the record.
Based on these findings, the district court concluded that
Montoya voluntarily agreed to an interview at the police sta-
tion and that a reasonable person in her position would “not
have necessarily felt compelled to do so.” This is a conclu-
sion of law which an appellate court reviews independently.35
Having done so, we conclude that a reasonable person in
Montoya’s position would not have felt he or she was not
at liberty to terminate the interrogation and leave.36 Because
Montoya was not “in custody” during the second interview,
no Miranda advisement was required prior to questioning.
The district court properly denied her motion to suppress
to the extent it was based on the absence of a Miranda
advisement.
(b) Voluntariness of Montoya’s Statements
With respect to both the second and third interviews,
Montoya argues that her statements should have been sup-
pressed, because they were not voluntarily made and her will
was overborne by coercive police tactics.
[10,11] The 5th Amendment to the U.S. Constitution, appli-
cable to state governments by incorporation through the 14th
Amendment, protects against compelled self-incrimination by
providing that “[n]o person shall be . . . compelled in any
criminal case to be a witness against himself . . . .”37 This
amendment, along with the Due Process Clause of the 14th
Amendment, prevents the use of involuntary confessions in
35
Id.36
Accord, Beheler, supra note 19; Mathiason, supra note 19.
37
U.S. Const. amend. V; State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524(2018).
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Cite as 304 Neb. 96criminal convictions.38 Although the Miranda rule and the
requirement that confessions be made voluntarily both arise out
of the Fifth Amendment, the question of whether a custodial
interrogation complies with Miranda is distinct from the ques-
tion of whether statements made during a custodial interroga-
tion were sufficiently voluntary.39
[12,13] The State has the burden to prove that a defend­
ant’s statement was voluntary and not coerced.40 Whether a
statement was voluntarily given depends on the totality of
the circumstances.41 Factors to consider include the interroga-
tor’s tactics, the details of the interrogation, and any charac-
teristics of the accused that might cause his or her will to be
easily overborne.42 While the circumstances surrounding the
statement and the characteristics of the individual defendant
at the time of the statement are potentially material consid-
erations, coercive police activity is a necessary predicate
to the finding that a confession is not voluntary within the
meaning of the Due Process Clause of the 14th Amendment.43
With this in mind, we consider Montoya’s contention that
her confessions during the second and third interviews were
not voluntary.
(i) Second Interview
The district court’s order overruling Montoya’s motion to
suppress made several factual findings that are relevant to the
voluntariness inquiry. It found that no “strong-arm tactics”
or deceptive stratagems were employed and that Montoya
did not react to the questioning with emotional outbreaks. It
38
Hernandez, supra note 37.
39
Id.
40
State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).
41
See, State v. Turner, 288 Neb. 249, 847 N.W.2d 69 (2014); State v.
McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).
42
McClain, supra note 41.
43
See id.
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Cite as 304 Neb. 96found that Bauermeister made no threats or promises during
the interview and maintained a serious and calm tone through-
out. These findings are supported by the record and are not
clearly erroneous.
Based on these factual findings and our de novo review of
the record, including the video recording of the second inter-
view, we conclude the statements Montoya made during the
second interview were voluntary and were not the result of
police coercion. There was no error in overruling the motion to
suppress as to the second interview.
(ii) Third Interview
Montoya argues her statements in the third interview were
not voluntary, because improper inducements were made to
her by police in the form of either promises of leniency or
threats of harsher punishment. Some additional factual back-
ground is necessary to understand her arguments.
Before questioning Montoya, Bauermeister spoke at length
about the importance of telling the truth during the interview,
saying, “Whatever you do today though, don’t lie about it,
because if you lie about anything or fail to tell me anything,
it’s going to look really bad for you when you go to court.”
Bauermeister went on to say:
You can choose not to talk to me and that’s fine, but the
story I got, and the injuries [C.H.] has, I can prove that
you had something to do with this. I can prove you are
responsible for this at this point. Now, if you go into
court, and you will go to court for this at some point . .
. . If you go into court, if you stand up there on the stand
and you say anything that is a lie and I get up there on
the stand and say that this is what she told me and this
is a lie and I can prove it because of this, this, and this,
that’s going to make you look very bad to a judge or a
jury. So right now what you need to think about is getting
the truth out and explaining what happened. . . . Don’t
you think that whoever listens to this story, that I’m
gonna tell and the prosecutor’s gonna tell, and we lay out
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Cite as 304 Neb. 96the facts of the case, don’t you think they would rather
hear, would like to hear and don’t you think that they
would want to work with the person who says I made a
mistake as opposed to the person who just flat out lies
or the person who says no I didn’t make a mistake, I’m
a bad, evil person and I wanted to hurt that child so bad
that the child might die. I’ll guarantee you that it would
sound better if it’s just some deal where you just couldn’t
take it anymore. . . . I would rather have somebody say
“I made a horrible mistake” and tell me the entire truth
about what happened as opposed to having someone just
lie to me, and then later on I will prove that those are lies.
Don’t you think the person who lies is going to be treated
. . . I don’t want to say more harshly, but who would you
want to work with?
Bauermeister then advised Montoya of her Miranda rights and
began questioning her. Throughout the interview, Bauermeister
continued to emphasize the importance of being truthful. He
told Montoya he did not think she was being completely hon-
est, and he commented that judges and juries do not like liars,
that it would be better for Montoya to tell the truth, and that
prosecutors and police would be more likely to “work” with
someone who was truthful.
[14] While the confession of an accused may be involuntary
and inadmissible if obtained in exchange for a promise of leni-
ency, mere advice or exhortation by the police that it would be
better for the accused to tell the truth, when unaccompanied by
either a threat or promise, does not make a subsequent confes-
sion involuntary.44 In order to render a statement involuntary,
any benefit offered to a defendant must be definite and must
overbear his or her free will.45
The district court found that Bauermeister’s statements dur-
ing the third interview did not rise to the level of promises
44
See id.45
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Cite as 304 Neb. 96of leniency or threats of harsher punishment. After reviewing
the video recording and considering the totality of the circum-
stances, we agree. Bauermeister used standard interrogation
techniques, and nothing about the circumstances of the inter-
rogation or the characteristics and reaction of Montoya suggest
her will was overborne. On this record, we agree with the dis-
trict court’s conclusion that Montoya’s statements in the third
interview, both oral and written, were voluntarily made. The
trial court did not err in overruling Montoya’s motion to sup-
press, and her first assignment of error is without merit.
2. Interpreting § 28-707
Several of Montoya’s remaining assignments of error rise
and fall on the merits of her statutory interpretation argu-
ment, so we consider that argument as a threshold matter.
Summarized, Montoya argues that to be found guilty of the
Class IB felony of intentional child abuse resulting in death
under § 28-707(1) and (8), the State was required to prove not
only that she knowingly and intentionally committed the crime
of child abuse, but also that she intended that abuse to result in
the child’s death. The trial court rejected Montoya’s proposed
interpretation of § 28-707, and so do we.
[15] Our analysis begins with the plain language of the
statute. Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.46 Section § 28-707 provides in rel-
evant part:
(1) A person commits child abuse if he or she know-
ingly, intentionally, or negligently causes or permits a
minor child to be:
(a) Placed in a situation that endangers his or her life or
physical or mental health;
(b) Cruelly confined or cruelly punished;
46
State v. Wal, 302 Neb. 308, 923 N.W.2d 367 (2019).
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Cite as 304 Neb. 96(c) Deprived of necessary food, clothing, shelter, or
care;
(d) Placed in a situation to be sexually exploited . . . ;
(e) Placed in a situation to be sexually abused . . . ; or
(f) Placed in a situation to be a trafficking victim . . . .
....
(3) Child abuse is a Class I misdemeanor if the offense
is committed negligently and does not result in serious
bodily injury as defined in section 28-109 or death.
(4) Child abuse is a Class IIIA felony if the offense
is committed knowingly and intentionally and does not
result in serious bodily injury as defined in section 28-109
or death.
(5) Child abuse is a Class IIIA felony if the offense is
committed negligently and results in serious bodily injury
as defined in section 28-109.
(6) Child abuse is a Class IIA felony if the offense is
committed negligently and results in the death of such
child.
(7) Child abuse is a Class II felony if the offense is
committed knowingly and intentionally and results in
serious bodily injury as defined in such section.
(8) Child abuse is a Class IB felony if the offense is
committed knowingly and intentionally and results in the
death of such child.
In the present case, the district court found that Montoya
committed the offense of child abuse by placing C.H. in a situ-
ation that endangered her life, in violation of § 28-707(1)(a),
and by cruelly punishing C.H., in violation of § 28-707(1)(b).
The court expressly found Montoya committed such child
abuse knowingly and intentionally, and not negligently or
recklessly.47 And the court found the child abuse resulted
in the death of C.H. and thus was a Class IB felony under
§ 28-707(8).
47
See § 28-707(9).
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clusion that she knowingly and intentionally committed the
offense of child abuse as defined in § 28-707(1)(a) and (b).
Instead, she contends that in order to find her guilty of inten-
tional child abuse resulting in death under § 28-707(1) and
(8), the trial court also had to find that she had the “intent
to commit the harm”48 or the “intent to commit the result”49
of the child abuse. In other words, Montoya contends that
to be found guilty of knowing and intentional child abuse
resulting in death, the State was required to prove not only
that she intentionally committed the offense of child abuse,
but also that she intended the abuse to result in death. As we
explain below, Montoya’s construction is inconsistent with
the plain language of the statute and is contrary to this court’s
case law.
[16] Section 28-707(1) defines the offense of child abuse
and states that one commits child abuse “if he or she know-
ingly, intentionally, or negligently causes or permits a minor
child to be” abused in any of the six ways identified in sub-
sections (a) through (f). Then, § 28-707(3) through (8) clas-
sify the level of any such offense based on two factors: the
actor’s state of mind when committing the offense and the
degree of harm to the child resulting from the offense.50 But
neither the plain language of § 28-707 nor our cases interpret-
ing it require the State to prove the defendant intended the
resulting harm to the child. We said so expressly in State v.
Molina 51 when we observed that “[c]hild abuse resulting in
death requires proof of the defendant’s intent to commit child
abuse, as defined in the subsections of § 28-707(1), but it
does not require proof that the defendant intended to kill the
minor child.”
48
Brief for appellant at 29.
49
Id. at 23.
50
See State v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005).
51
Molina, supra note 3, 271 Neb. at 505-06, 713 N.W.2d at 432.
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Cite as 304 Neb. 96In Molina, the defendant was convicted of both second
degree murder and intentional child abuse resulting in death.
He appealed, arguing his conviction for second degree murder
should be vacated because it was a lesser-included offense
of knowing and intentional child abuse resulting in death.
We applied the Blockburger 52 test and disagreed. First, we
observed that intentional child abuse resulting in death requires
proof that the death was that of a minor child, which is not
required to prove second degree murder. We then stated:
[S]econd degree murder also requires proof of an element
that child abuse resulting in death does not: an intent to
kill. . . . Child abuse resulting in death requires proof of
the defendant’s intent to commit child abuse, as defined
in the subsections of § 28-707(1), but it does not require
proof that the defendant intended to kill the minor child.
Second degree murder, on the other hand, requires proof
of an intent to kill.53
Molina therefore held that second degree murder was not a
lesser-included offense of intentional child abuse resulting
in death.
Our opinion in State v. Muro54 is also instructive. In that
case, we explained that under the statutory framework of
§ 28-707, the proscribed conduct is “exactly the same” whether
the offense is classified as a felony or a misdemeanor,55 but
that the classification of the offense will vary depending on
two factors: the defendant’s state of mind in committing the
offense and the degree of harm caused by the offense. In
Muro, the defendant left her infant in the care of another and,
52
Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306(1932) (requiring analysis of whether each statute requires proof of fact
which other does not).
53
Molina, supra note 3, 271 Neb. at 505-06, 713 N.W.2d at 432 (emphasis
supplied).
54
Muro, supra note 50.
55
Id. at 708, 695 N.W.2d at 429.
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Cite as 304 Neb. 96after returning home, she found the child was unresponsive
and “‘limp, kind of like a rag doll.’”56 The defendant waited
approximately 4 hours before seeking medical care for the
child. By the time the child arrived at a hospital, she was not
breathing, her pupils were fixed and dilated, and she was limp
and cold. Tests eventually concluded brain death had occurred,
and the decision was made to discontinue life support. An
autopsy showed the cause of death was a skull fracture that
resulted in cerebral edema and ultimately brain death. The
defendant was convicted of intentional child abuse result-
ing in death, a Class IB felony, and sentenced to 20 years’
imprisonment.
We confirmed the conviction for child abuse, reasoning the
evidence supported a finding that the defendant knowingly
and intentionally caused or permitted her child to be deprived
of necessary medical care, in violation of § 28-707(1)(c). But
for purposes of classifying the crime, we found the medi-
cal evidence was insufficient as a matter of law to establish
beyond a reasonable doubt that the child’s death was proxi-
mately caused by the delay in seeking medical care. Notably,
we explained that the State’s failure to prove that the child’s
death resulted from the abuse “d[id] not relieve [the defendant]
of criminal responsibility”57 for the offense of child abuse, but
affected only the level of the offense under § 28-707. We thus
concluded the evidence was “sufficient to sustain a conviction
for Class IIIA felony child abuse under § 28-707(4) without
any proof of resulting harm to the child.”58 So, we reclassi-
fied the offense from a Class IB felony to a Class IIIA felony
and remanded the matter for resentencing. Muro illustrates
that proof of the resulting harm is pertinent to classifying the
offense of child abuse, but it does not impact criminal respon-
sibility for the offense.
56
Id. at 705, 695 N.W.2d at 427.
57
Id. at 713, 695 N.W.2d at 432.
58
Id. at 713-14, 695 N.W.2d at 432.
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Cite as 304 Neb. 96[17] Given the plain language of § 28-707 and our cases
interpreting and applying it, we reject Montoya’s contention
that the intent to cause the resulting harm is a necessary ele-
ment of the offense of child abuse. We hold that to convict a
defendant of the Class IB felony of knowing and intentional
child abuse resulting in death under § 28-707, the State must
prove the defendant knowingly and intentionally caused or
permitted the child to be abused in one or more of the ways
defined in § 28-707(1), and also must prove the offense
resulted in the child’s death, as required by § 28-707(8). It is
not necessary, however, to prove the defendant intended the
abuse to result in the child’s death.59
[18] In arguing for a contrary interpretation, Montoya
presents a number of different arguments which invite this
court to ignore the statutory requirements established by the
Legislature, to conflate the statutory provisions defining the
offense of child abuse60 with the statutory provisions classify-
ing the level of offense for purposes of punishment,61 and to
read provisions into the statutory language which are not there.
But it is not within the province of the courts to read a mean-
ing into a statute that is not there or to read anything direct and
plain out of a statute.62 It would add nothing to our jurispru-
dence to address all of Montoya’s arguments individually. We
have considered them all and find, without exception, that they
either are premised on a fundamentally flawed reading of the
statute or urge a construction which is contrary to the plain and
unambiguous language of § 28-707 and this court’s opinions
construing it.
Having addressed the proper interpretation of § 28-707 as a
threshold matter, we apply that interpretation when considering
Montoya’s remaining assignments of error.
59
Molina, supra note 3.
60
See § 28-707(1).
61
See § 28-707(3) through (8).
62
State v. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019).
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Cite as 304 Neb. 963. Plea in A batement and
Sufficiency of Evidence
[19] Montoya’s second assignment of error challenges the
denial of her plea in abatement and argues the evidence offered
at her preliminary hearing was insufficient to bind the case
over. Her fourth assignment of error argues that the State’s
evidence at trial was insufficient to convict her of intentional
child abuse resulting in death. We address these assignments
together, because we have held that “an error in a ruling on
a plea in abatement challenging whether there was sufficient
evidence to bind a case over for trial is cured by a subsequent
finding at trial of guilt beyond a reasonable doubt which is
supported by sufficient evidence.”63 Consequently, Montoya’s
second and fourth assignments both turn on whether the evi-
dence at trial was sufficient to convict her of intentional child
abuse resulting in death.
[20] When a criminal defendant challenges the sufficiency
of the evidence upon which a conviction is based, 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.64 The evidence that
Montoya knowingly and intentionally committed child abuse
was overwhelming.
Montoya admitted that on March 12, 2016, she threw
C.H. against the bed multiple times causing her to hit her
head on the wall and the bedframe. She admitted slamming
C.H.’s head into the wall and pressing C.H. against the wall
so hard she thought the child’s ribs would break. By the time
Montoya took C.H. to the hospital some 13 hours later, C.H.
was unresponsive, tremoring, and posturing and had bruis-
ing all over her body. Imaging revealed a skull fracture and
bleeding in the brain, and medical evidence showed the cause
63
State v. Chauncey, 295 Neb. 453, 464, 890 N.W.2d 453, 462 (2017).
64
State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016).
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Cite as 304 Neb. 96of C.H.’s death was blunt force trauma to the head. This
evidence was sufficient to prove that Montoya knowingly
and intentionally caused C.H. to be placed in a situation that
endangered her life or physical or mental health, in violation
of § 28-707(1)(a), and knowingly and intentionally caused
C.H. to be cruelly punished, in violation of § 28-707(1)(b).
The evidence was also sufficient to prove that Montoya’s
offense resulted in C.H.’s death, making it a Class IB felony
under § 28-707(8).
Montoya does not challenge any of this evidence, but instead
argues the State offered no evidence that she intended to kill
C.H. She points specifically to her own statement that she
never intended to kill C.H. and to the investigating officer’s
testimony that he “uncovered no evidence suggesting that
. . . Montoya intended to cause the death of [C.H.].” But
since intent to cause death is neither an element of the offense
of child abuse nor a factor in determining the level of such
offense, Montoya’s argument in that regard is simply immate-
rial. The evidence at trial was sufficient to support Montoya’s
conviction for intentional child abuse resulting in death, and
her arguments to the contrary are meritless.
4. Constitutionality of § 28-707
In her third assignment of error, Montoya argues the district
court erred in overruling her motion to quash the informa-
tion and rejecting her constitutional challenges to § 28-707.
Montoya’s motion to quash alleged that § 28-707(1), (3),
(6), and (8) violate equal protection, violate due process, and
are unconstitutionally vague and overbroad both facially and
as applied.
[21,22] As a preliminary matter, we point out that Montoya
was convicted of child abuse under § 28-707(1)(a) and (b) and
(8), but her constitutional challenge purports to extend to other
portions of the statute as well. Standing to challenge the con-
stitutionality of a statute under the federal or state Constitution
depends upon whether one is, or is about to be, adversely
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Cite as 304 Neb. 96affected by the language in question.65 To establish standing,
the contestant must show that as a consequence of the alleged
unconstitutionality, the contestant is, or is about to be, deprived
of a protected right.66 Courts will not decide a question con-
cerning the constitutionality of a statute unless such question
has been raised by a litigant whose interests are adversely
affected by the questioned statute.67
Montoya can claim to be adversely affected only by the stat-
utory provisions under which she was charged and convicted,
and we conclude she lacks standing to challenge other portions
of § 28-707. Furthermore, we limit our analysis to only those
constitutional arguments specifically discussed in Montoya’s
appellate briefing.68
Montoya’s appellate briefing focuses on just two of the con-
stitutional claims alleged in her motion to quash. Her primary
argument is that § 28-707 violates equal protection principles,
because it “criminalizes the same conduct [but] imposes sub-
stantially different penalties for that conduct”69 depending on
how the crime is classified. She also argues that § 28-707 is
unconstitutionally vague.
[23-25] In considering these two constitutional challenges,
we presume § 28-707 to be constitutional and resolve all rea-
sonable doubts in favor of its constitutionality.70 The burden
to clearly demonstrate that a statute is unconstitutional rests
upon the party making the claim of unconstitutionality.71 A
65
State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019).
66
Id.67
State v. Crowdell, 234 Neb. 469, 451 N.W.2d 695 (1990).
68
See In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018) (absent
plain error, appellate court considers only those claimed errors specifically
assigned and argued).
69
Brief for appellant at 26.
70
See State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009).
71
State v. Carpenter, 250 Neb. 427, 551 N.W.2d 518 (1996).
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Cite as 304 Neb. 96penal statute must be construed so as to meet constitutional
requirements if such can reasonably be done.72 Applying these
principles, we address both of Montoya’s constitutional argu-
ments in turn.
(a) Equal Protection Claim
Montoya argues that under § 28-707, “[t]he penalties are
disparate” but “the same conduct is at issue,” and she con-
tends that this violates her “right to equal protection under
Article I, Section 3 of the Nebraska Constitution and the 14th
Amendment to the U.S. Constitution.”73 We have recognized
that the Nebraska Constitution and the U.S. Constitution have
identical requirements for equal protection challenges,74 so we
address her claims together.
Montoya’s equal protection claim is best understood as
a challenge to the different classifications or gradations of
offense under § 28-707. She generally argues, through a series
of hypotheticals, that her criminal conduct was charged as a
Class IB felony, yet someone else committing the same acts
of abuse might be charged with and convicted of a lower level
felony, or even a misdemeanor. She contends this shows a vio-
lation of equal protection. We disagree.
As explained earlier, § 28-707 differentiates between levels
of offense based on two factors: the actor’s state of mind in
committing the proscribed conduct and the degree of harm
resulting to the child. Generally speaking, those who commit
child abuse knowingly and intentionally are subject to a higher
penalty range than those who commit the crime negligently;
and, as the degree of harm caused to the child increases, so
does the penalty range. As a result, depending on the actor’s
state of mind in committing the offense and the harm caused to
the child, the same criminal conduct can be classified as either
72
Id.
73
Brief for appellant at 27.
74
Hibler, supra note 65.
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Cite as 304 Neb. 96a Class I misdemeanor,75 a Class IIIA felony,76 a Class IIA
felony,77 a Class II felony,78 or a Class IB felony.79
Montoya suggests that these classifications offend equal
protection principles. She suggests the only way to classify
her offense as a Class IB felony without offending equal
protection is to read into the statute an “intent to kill” require-
ment. There are two problems with her argument: We have
already rejected her statutory interpretation as unsound, and
she has not presented any argument showing how the classifi-
cation of crimes under § 28-707 violates the Equal Protection
Clause.
[26,27] The Equal Protection Clause does not forbid clas-
sifications; it simply keeps governmental decisionmakers from
treating differently persons who are in all relevant respects
alike.80 When a classification created by state action does
not jeopardize the exercise of a fundamental right or catego-
rize because of an inherently suspect characteristic, the Equal
Protection Clause requires only that the classification rationally
further a legitimate state interest.81 Montoya does not claim
that the classification of her crime as a Class IB felony turns on
a suspect characterization or affects a fundamental right, and
we have been clear that child abuse is not a constitutionally
protected activity.82 Accordingly, Montoya’s equal protection
claim is subject to rational basis review.
[28,29] Under rational basis review, we will uphold a clas-
sification created by the Legislature where it has a rational
75
§ 28-707(3).
76
§ 28-707(4) and (5).
77
§ 28-707(6).
78
§ 28-707(7).
79
§ 28-707(8).
80
Hibler, supra note 65.
81
Id.82
State v. Sinica, 220 Neb. 792, 372 N.W.2d 445 (1985).
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Cite as 304 Neb. 96means of promoting a legitimate government interest or pur-
pose.83 In other words, the difference in classification need
only bear some relevance to the purpose for which the differ-
ence is made.84 Under the rational basis test, whether an equal
protection claim challenges a statute or some other government
act or decision, the burden is upon the challenging party to
eliminate any reasonably conceivable state of facts that could
provide a rational basis for the classification.85 Montoya has
failed to meet this burden.
As it regards her equal protection claim, Montoya’s briefing
does little more than point out that § 28-707 proscribes the
same criminal conduct but classifies the level of crime dif-
ferently depending on certain statutory factors. She does not
mention or discuss the rational basis test or attempt to apply
any other level of constitutional scrutiny to the classification
she challenges. She does not argue, or even imply, that clas-
sifying the crime of child abuse as a Class IB felony when it
is committed intentionally rather than negligently, and when
it results in the death of the child, somehow fails to rationally
further a legitimate state interest.
In short, Montoya has failed to present any viable equal
protection argument related to the classification of her crime
under § 28-707(8). The district court did not err in rejecting
her equal protection claim.
(b) Void for Vagueness
Montoya’s motion to quash alleged that § 28-707 was both
“overbroad and vague” and thus facially invalid. But on appeal,
she argues only that the statute should be found “facially uncon-
stitutional as violative of the void-for-vagueness doctrine,”86 so
we confine our analysis accordingly.
83
Rung, supra note 70.
84
Id.85
Id. See, also, Hibler, supra note 65.
86
Reply brief for appellant at 3.
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Cite as 304 Neb. 96[30,31] The void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is prohib-
ited and in a manner that does not encourage arbitrary and
discriminatory enforcement.87 The test for standing to assert a
vagueness challenge is the same whether the challenge asserted
is facial or as applied.88 Courts consider two things: First, to
assert a claim of vagueness, a defendant must not have engaged
in conduct which is clearly prohibited by the questioned stat-
ute.89 Furthermore, a defendant cannot maintain that the statute
is vague when applied to the conduct of others, because a court
will not examine the vagueness of the law as it might apply to
the conduct of persons not before the court.90 Montoya fails the
test for standing under both considerations.
Montoya engaged in conduct that is clearly proscribed by
§ 28-707 when she abused C.H., and thus lacks standing to
assert a claim of vagueness.91 She was convicted of violat-
ing § 28-707(1)(a) and (b), and this court has previously
upheld both those statutory provisions against challenges that
the conduct proscribed therein is unconstitutionally vague or
overbroad.92
Additionally, the real focus of Montoya’s vagueness argu-
ment is not on her crime at all. Instead, she focuses on the
different criminal classifications of the crime under § 28-707
and argues the classifications are potentially vague as applied
to the conduct of others:
Is the situation where a child dies in an accident where
the defendant was speeding a Class IB, a Class IIA, or a
87
Scott, supra note 10; Rung, supra note 70.
88
Id.89
Id.90
Id.91
See id.92
See, State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002); Crowdell, supra
note 67; Sinica, supra note 82.
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Cite as 304 Neb. 96Class I misdemeanor? Is a shaken-baby case a Class IB
Felony or a Class IIA Felony? Is the case where the child
is inadvertently scalded in too hot bath water a Class IIA
Felony or a Class I misdemeanor? Is a case where very
young children are left at home and a fire ensues a Class
IIA Felony or a Class I misdemeanor? The examples
are endless.93
We conclude that Montoya lacks standing to assert a claim
that § 28-707 is void for vagueness, because she was engag-
ing in conduct that is clearly proscribed by § 28-707(1)(a) and
(b) when she abused C.H. Furthermore, she lacks standing to
assert a claim of vagueness on behalf of others. Montoya’s
third assignment of error has no merit.
5. Excessive Sentence
[32,33] In her final assignment of error, Montoya challenges
her sentence as excessive. She was convicted of a Class IB
felony, which is punishable by a minimum of 20 years’ impris-
onment and a maximum of life imprisonment.94 Montoya was
sentenced to a term of 55 to 75 years in prison. Absent an
abuse of discretion by the trial court, an appellate court will
not disturb a sentence imposed within the statutory limits.95
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.96
[34-36] Where, as here, a sentence imposed within the statu-
tory 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
93
Reply brief for appellant at 7-8.
94
Neb. Rev. Stat. § 28-105 (Supp. 2015).
95
Leahy, supra note 14.
96
State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018).
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Cite as 304 Neb. 96sentence to be imposed.97 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 crimi-
nal record or record of law-abiding conduct, and (6) motivation
for the offense, as well as (7) the nature of the offense and
(8) the amount of violence involved in the commission of the
crime.98 The appropriateness of a sentence is necessarily a sub-
jective judgment and includes the sentencing judge’s observa-
tion of the defendant’s demeanor and attitude and all the facts
and circumstances surrounding the defendant’s life.99
The record on appeal demonstrates that the trial court con-
sidered all of these factors when imposing sentence in this
case. Montoya nevertheless presents two arguments in support
of her claim that the sentencing court abused its discretion.
First, she argues that during sentencing, the trial court
improperly considered the State’s suggestion that a delay in
providing medical treatment to C.H. was a factor weighing
in favor of a harsher sentence. Montoya contends this was
improper because there was no evidence that if she had sought
treatment more promptly, C.H.’s injuries would have been
reduced. But when imposing sentence, the trial judge expressly
told Montoya: “I’m not sentencing you because of the delay.
Could [earlier treatment] have helped? Nobody will ever know.
The doctors evidently don’t seem to think so.” The record
on appeal affirmatively refutes Montoya’s contention that the
trial court improperly considered the delay in treatment when
imposing sentence.
Next, Montoya argues the sentence imposed was exces-
sive when compared to sentences imposed in other cases
which defense counsel brought to the trial court’s attention
during sentencing. Montoya suggests this was an abuse of
97
State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
98
Id.99
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Cite as 304 Neb. 96discretion, but the record affirmatively refutes such a conclu-
sion. Regarding the other cases that defense counsel mentioned
during sentencing, the trial judge remarked:
I am aware of the cases . . . which you spoke of, [defense
counsel]. I’m also aware of a lot of other cases that you
did not speak of that I researched and looked into and
that were sentenced significantly greater than what you
indicated.
. . . The law is different in some instances. Injuries are
different, circumstances are different.
Montoya’s sentence is well within the statutory limits and
reflects the serious nature of her crime. The district court prop-
erly considered and applied the relevant factors in determining
an appropriate sentence, and we find no abuse of discretion in
the sentence imposed.
V. CONCLUSION
Having found no merit to any of Montoya’s assignments of
error, we affirm the judgment of the district court.
A ffirmed.