State v. Mitchell ( 2016 )

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www.nebraska.gov/apps-courts-epub/
04/07/2016 12:11 PM CDT
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STATE v. MITCHELL
Cite as 23 Neb. Ct. App. 657
State of Nebraska, appellee, v.
Travis T. Mitchell, appellant.
___ N.W.2d ___
Filed February 23, 2016. No. A-15-086.
1. Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
dence claim, whether the evidence is direct, circumstantial, or a com-
bination 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.
2. Criminal Law: Evidence. In reviewing a sufficiency of the evidence
claim, 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 reason-
able doubt.
3. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
4. Drunk Driving: Words and Phrases. As used in Neb. Rev. Stat.
§ 60-6,196 (Reissue 2008), the phrase “under the influence of alcoholic
liquor or of any drug” requires the ingestion of alcohol or drugs in an
amount sufficient to impair to any appreciable degree the driver’s ability
to operate a motor vehicle in a prudent and cautious manner.
5. Police Officers and Sheriffs: Drunk Driving: Witnesses. After suf-
ficient foundation is laid, a law enforcement officer may testify that in
his or her opinion, a defendant was driving under the influence.
6. Convictions: Drunk Driving: Evidence. Either a law enforcement offi-
cer’s observations of a defendant’s intoxicated behavior or the defend­
ant’s poor performance on field sobriety tests constitutes sufficient
evidence to sustain a conviction of driving while under the influence of
alcoholic liquor.
7. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial
is properly granted in a criminal case where an event occurs during the
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course of a trial that is of such a nature that its damaging effect cannot
be removed by proper admonition or instruction to the jury and thus
prevents a fair trial.
8. Motions for Mistrial: Appeal and Error. The decision whether to
grant a motion for mistrial will not be disturbed on appeal in the absence
of an abuse of discretion.
9. Motions for Mistrial: Motions to Strike: Proof: Appeal and Error.
Error cannot ordinarily be predicated on the failure to grant a mistrial if
an objection or motion to strike the improper material is sustained and
the jury is admonished to disregard such material. The defendant must
prove that the alleged error actually prejudiced him or her, rather than
creating only the possibility of prejudice.
10. Miranda Rights: Appeal and Error. Where the record does not indi-
cate that a defendant received any Miranda warnings before remaining
silent, an appellate court will treat the silence as occurring pre-Miranda.
11. Miranda Rights: Impeachment. The reading of Miranda rights is the
key factor in determining whether the government can use a defendant’s
silence against him or her.
12. Miranda Rights: Impeachment: Due Process. Impeaching a defend­
ant’s version of the crime at trial by utilizing his or her postarrest,
post-Miranda silence violates due process. In such a case, the implicit
assurance that silence will carry no penalty renders it unfair to use the
defendant’s silence against him or her.
13. Miranda Rights: Impeachment. The prosecution may impeach the
defendant on the stand by utilizing his or her silence occurring after
arrest where the record does not reflect that he or she had been given
Miranda warnings at the time.
14. Miranda Rights: Impeachment: Mental Competency. A defendant’s
postarrest, post-Miranda silence cannot be used as substantive evidence
to refute the defendant’s insanity defense.
15. Miranda Rights: Impeachment. The State may utilize a defendant’s
postarrest, pre-Miranda silence as substantive evidence of his or her
guilt; the giving of Miranda is the key inquiry in determining when the
State can utilize a defendant’s silence.
16. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s age, mentality, education and experience, social
and cultural background, past criminal record, and motivation for the
offense, as well as the nature of the offense and the violence involved in
the commission of the crime.
17. 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 the sentencing court abused its discretion in
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considering and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender,
Christopher Eickholt, and Nathan Sohriakoff for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Moore, Chief Judge, and Irwin and Inbody, Judges.
Irwin, Judge.
I. INTRODUCTION
Travis T. Mitchell appeals his conviction and sentence for
driving under the influence (DUI), fourth offense, with refusal
to submit to a chemical test, and for driving during revocation.
On appeal, Mitchell argues that there was insufficient evidence
to support his convictions for DUI with refusal to submit to a
chemical test and for driving during revocation, that the district
court erred in overruling his motion for mistrial based on the
prosecutor’s comment during closing arguments, and that he
received excessive sentences. We find no merit to Mitchell’s
assertions on appeal and affirm.
II. BACKGROUND
The events giving rise to this case occurred on June 6, 2014.
That morning, Mitchell and his mother, Lucille Mitchell, went
to a home improvement store in Lincoln, Nebraska, to pur-
chase supplies to build a dog house. Lucille drove the pair
in a beige sport utility vehicle (SUV). On the way to the
home improvement store, Mitchell asked Lucille to stop at a
nearby liquor store. Lucille stopped at the store, and Mitchell
purchased beer and a bottle of liquor. Mitchell drank a “sip
of each” before he and Lucille went into the home improve-
ment store.
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At the home improvement store, Lucille and Mitchell pur-
chased lumber and other building materials. In the parking lot,
a store employee began tying the lumber on top of the vehicle,
but Mitchell became impatient and drove off in the SUV, leav-
ing Lucille behind in the parking lot. Lucille was worried that
Mitchell might hurt himself or another driver, so she notified
the police that Mitchell had driven off in the SUV.
After Lucille called the police, the police dispatcher noti-
fied officers patrolling the area that Mitchell had been reported
driving a beige SUV dangerously. Officer James Quandt of the
Lincoln Police Department was stopped at a red light when he
observed a man he believed to be Mitchell driving a vehicle
matching the description of the beige SUV. Officer Quandt
was able to confirm the driver was Mitchell after matching
his appearance to a photograph on his in-car computer sys-
tem. Officer Quandt also determined that Mitchell’s driver’s
license was revoked. Officer Quandt followed Mitchell from a
distance. Officer Quandt observed Mitchell accelerate, change
lanes a few times, and run a red light. Officer Quandt eventu-
ally lost sight of Mitchell’s vehicle.
Shortly after Officer Quandt observed Mitchell driving,
Officer Sarah Williams of the Lincoln Police Department spot-
ted a vehicle matching the SUV’s description. The driver
resembled a photograph of Mitchell that Officer Williams was
able to view on her in-car computer system. Officer Williams
followed Mitchell and observed him driving erratically, includ-
ing speeding more than 15 miles per hour over the speed limit
and passing other cars in the center turn lane. Like Officer
Quandt, Officer Williams lost sight of the SUV.
After Officer Quandt had lost sight of Mitchell’s vehicle, he
had radioed other officers to notify them that Mitchell might be
driving to a nearby address where Mitchell and Lucille lived.
Officer Joseph Keiser of the Lincoln Police Department was
near the area and arrived at Mitchell’s house before Mitchell
did. Officer Keiser positioned himself in a nearby alleyway
and then observed Mitchell pull into the driveway of the house
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at a high rate of speed. When Mitchell pulled into the drive-
way, he drove over the grass, leaving tire marks.
After Mitchell had parked in the driveway, Officer Keiser
approached the SUV and instructed Mitchell several times to
exit the vehicle. Mitchell did not comply with the instructions.
Eventually, Officer Keiser physically removed Mitchell from
the SUV and handcuffed him.
After Mitchell was removed from the SUV, officers located
an alcohol container in its center console and a paper bag con-
taining alcohol on its passenger’s side floor. In total, officers
located one partially empty container of hard liquor without a
lid and five beer cans, at least one of which was open.
Officer Quandt, the officer who had previously observed
Mitchell run a red light, arrived at Mitchell’s house and
transported Mitchell to the Lancaster County Jail. At the jail,
Mitchell became aggressive and refused to submit to a breath
test. Mitchell was charged both with DUI with refusal to sub-
mit to a chemical test and with driving during revocation.
The case proceeded to trial on December 1, 2014. At the
trial, Lucille testified that Mitchell suffers from mental health
problems. According to Lucille, the symptoms of Mitchell’s
mental health issues resemble the behaviors he displays when
he is intoxicated. Lucille testified that on the morning of June
6, Mitchell was displaying behaviors that could have been con-
sistent with him being intoxicated, including being agitated,
making poor choices, and being impatient. Lucille also testified
that she smelled alcohol on Mitchell’s clothes.
The police officers involved in following and arresting
Mitchell also testified at the trial. Officer Williams testified
that she was trained in DUI investigations. Officer Williams
further testified that she observed Mitchell driving erratically
and that in her opinion, Mitchell’s driving was unsafe and con-
sistent with the behavior of a person who was under the influ-
ence. Officer Keiser testified that the manner in which Mitchell
drove into the driveway was unsafe. Officer Keiser further
testified that Mitchell smelled of alcohol and was generally
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confused. Officer Keiser stated that he had experience dealing
with drunk individuals and that in his opinion, Mitchell was
under the influence of alcohol.
The State also called Officer Quandt to the stand. Officer
Quandt testified that he had extensive DUI training. Officer
Quandt opined that Mitchell was under the influence of alcohol
and unable to safely operate a vehicle on the day in question.
In support of his opinion that Mitchell was intoxicated, Officer
Quandt noted that Mitchell had a hard time balancing, stag-
gered, could not walk in a straight line, smelled of alcohol,
slurred his speech, and had bloodshot eyes.
The jury found Mitchell guilty of DUI with refusal to
submit to a chemical test and of driving during revocation.
After the verdicts, the court held an enhancement hearing and
determined that the State had proven Mitchell had three prior
DUI convictions. Consequently, the court sentenced Mitchell
to 5 to 10 years’ imprisonment for fourth-offense DUI with
refusal to submit to a chemical test and revoked his driving
privileges and driver’s license for 15 years. The court also
sentenced Mitchell to 1 to 2 years’ imprisonment and revoked
his driving privileges and driver’s license for 15 years for driv-
ing during revocation. The court ordered that the sentences be
served concurrently to one another and consecutively to any
other sentences previously imposed. Mitchell appeals from his
convictions and sentences. Additional facts will be discussed,
as necessary, in the analysis section of this opinion.
III. ASSIGNMENTS OF ERROR
On appeal, Mitchell assigns three errors. First, Mitchell
asserts there was insufficient evidence to support his convic-
tions for DUI with refusal to submit to a chemical test and for
driving during revocation. Second, Mitchell claims the district
court erred when it overruled his motion for mistrial based
on the prosecutor’s comment during closing argument that
Mitchell did not deny being intoxicated. Third, Mitchell asserts
that he received excessive sentences.
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STATE v. MITCHELL
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IV. ANALYSIS
1. Sufficiency of Evidence
Mitchell argues that there was insufficient evidence to sup-
port his convictions for DUI with refusal to submit to a chemi-
cal test and for driving during revocation. Mitchell asserts
that the only evidence regarding his intoxication “was simply
anecdotal evidence from an officer or two as to the officer’s
opinion.” Brief for appellant at 15. We find no merit to this
assignment of error.
[1,2] In reviewing 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 wit-
nesses, or reweigh the evidence; such matters are for the finder
of fact. State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).
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. State v. McClain, 285 Neb. 537,
827 N.W.2d 814 (2013).
[3] First, we note that Mitchell assigns as error the suffi-
ciency of the evidence to support both his DUI and his driving
during revocation convictions. However, Mitchell makes no
argument with respect to sufficiency of the evidence for driv-
ing during revocation. An alleged error must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the error to be considered by an appellate court.
State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015). Because
Mitchell fails to specifically argue the sufficiency of the evi-
dence to support his conviction for driving during revocation,
we do not address that assignment of error.
[4-6] Next, we turn to Mitchell’s assertion that the evidence
was insufficient to convict him of DUI with refusal to submit to
a chemical test. As used in Neb. Rev. Stat. § 60-6,196 (Reissue
2008), the phrase “under the influence of alcoholic liquor or
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of any drug” requires the ingestion of alcohol or drugs in an
amount sufficient to impair to any appreciable degree the driv-
er’s ability to operate a motor vehicle in a prudent and cautious
manner. State v. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009).
After sufficient foundation is laid, a law enforcement officer
may testify that in his or her opinion, a defendant was driving
under the influence. State v. Baue, 258 Neb. 968, 607 N.W.2d
191 (2000). Either a law enforcement officer’s observations of
a defendant’s intoxicated behavior or the defendant’s poor per-
formance on field sobriety tests constitutes sufficient evidence
to sustain a conviction of driving while under the influence of
alcoholic liquor. State v. Falcon, 260 Neb. 119, 615 N.W.2d
436 (2000).
In the case at hand, the State laid foundation for various
police officers to testify regarding their opinion that Mitchell
was under the influence. See Baue, supra. Officer Williams
testified that she was trained in DUI investigations and that
she had observed Mitchell driving erratically. Officer Williams
provided her opinion that Mitchell’s unsafe driving was con-
sistent with the behavior of a person driving under the influ-
ence. Similarly, Officer Keiser testified that he had experi-
ence in dealing with intoxicated individuals and that, in his
opinion, Mitchell was under the influence of alcohol. Officer
Quandt also testified that he had extensive DUI training.
Officer Quandt testified that Mitchell had difficulty balancing,
smelled of alcohol, slurred his speech, and had bloodshot eyes.
Officer Quandt opined that due to Mitchell’s having ingested
alcohol, “I don’t feel he was safe to operate a motor vehicle
at that time.” Lastly, Officer Quandt testified that Mitchell
refused to submit to a chemical test after he was transported
to the jail. This evidence, viewed in the light most favorable
to the State, was sufficient for a rational jury to find Mitchell
guilty beyond a reasonable doubt of DUI with refusal to sub-
mit to a chemical test. There is no merit to Mitchell’s assign-
ment of error.
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2. Motion for Mistrial
Mitchell argues that the trial court erred when it did not
grant a mistrial based on the prosecutor’s stating in clos-
ing argument that Mitchell never denied being intoxicated.
Mitchell argues the comment “is a violation of [Mitchell’s]
right[] to remain silent, his right to a fair trial, and is incon-
sistent with the requirement that the [S]tate has the burden of
proof.” Brief for appellant at 16. We find this assignment of
error to be without merit.
[7,8] A mistrial is properly granted in a criminal case where
an event occurs during the course of a trial that is of such a
nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair
trial. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011).
The decision whether to grant a motion for mistrial will not be
disturbed on appeal in the absence of an abuse of discretion.
Daly, supra.
[9] Additionally, error cannot ordinarily be predicated on the
failure to grant a mistrial if an objection or motion to strike the
improper material is sustained and the jury is admonished to
disregard such material. State v. Robinson, 271 Neb. 698, 715
N.W.2d 531 (2006). The defendant must prove that the alleged
error actually prejudiced him or her, rather than creating only
the possibility of prejudice. Id.
At the trial, Officer Quandt testified that he transported
Mitchell to the jail after Mitchell was apprehended in his
driveway. According to Officer Quandt, Mitchell was under
arrest at the time he was transported. Officer Quandt testified
that Mitchell made voluntary statements regarding his arrest
during the ride to the jail. The State played for the jury an
audio recording of the trip to the jail. In the recording, Mitchell
repeatedly argues that he should not be under arrest because
police did not catch him driving.
During closing arguments, the prosecutor made the follow-
ing statement regarding the audio recording of Mitchell and
Officer Quandt in the squad car:
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Now, interesting, if you recall the audio, and that will
go back with you and if you want to listen to it, you can
listen to it again. He never says, . . . Mitchell never says,
I’m not drunk. I wasn’t drinking. Why are you arresting
me for [DUI], I’m not drunk. What he says is, “You didn’t
catch me driving. You didn’t arrest me in my truck.” And
later, “You didn’t breathalyze me in my car.” Never once
does he say he’s not drunk. It’s all about where you got
me. He never denied that he’s drunk, he never denied
that he —
At that point in the closing argument, Mitchell objected.
In a sidebar conference, Mitchell’s attorney explained that
his objection was based on the fact that “Mitchell does not
have to deny anything. He does not have to prove anything.”
Mitchell argued the prosecutor’s statement referred to facts not
in evidence and that it implied that “[Mitchell’s] got some sort
of burden because he failed to deny that he was intoxicated.”
Mitchell asked for a mistrial or, in the alternative, that the jury
be ordered to disregard the prosecutor’s comment.
In response to Mitchell’s objection, the court stated that
“there is some case law that talks about pre-arrest silence,
which is in essence what you’re arguing, his silence, that is,
he didn’t deny it, he didn’t say this, he didn’t say that.” The
court went on to note that Mitchell’s silence occurred after
he had been arrested. Mitchell’s attorney again moved for a
mistrial, arguing the comment was “unfair and prejudicial
and improper.” The court overruled the motion for mistrial,
but granted the alternative motion to strike the comment and
instruct the jury. The court told the jury, “I am going to instruct
the jury to disregard [the prosecutor’s] comments about what
. . . Mitchell may or may not have denied. So you are instructed
to disregard those comments and not consider them.”
After the parties’ closing arguments, the court read the jury
instructions aloud and submitted a copy to the jury for their
reference. The jury instructions stated, in relevant part, “The
burden of proof is always on the State to prove beyond a
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reasonable doubt the material elements of the crime charged
and this burden never shifts.”
As a preliminary matter, we note that the State argues
Mitchell failed to preserve error on this issue because he did
not object to a violation of his right to remain silent at the
trial. During the closing argument, Mitchell objected that he
“d[id] not have to deny anything.” The trial court understood
Mitchell’s objection to be based on the right to remain silent
as indicated by its statement that “there is some case law that
talks about pre-arrest silence, which is in essence what you’re
arguing, his silence, . . . he didn’t deny it.” After this com-
ment by the court, Mitchell again moved for a mistrial, argu-
ing that the prosecutor’s comment was “unfair and prejudicial
and improper.” We find this record demonstrates Mitchell’s
objection implicated the right to remain silent and preserved
the issue for appeal.
[10] Next, the parties state that Mitchell had not been read
his Miranda rights at the time the silence in question occurred.
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.
Ed. 2d 694 (1966). However, the parties do not provide us
a citation to the record for this factual assertion, nor could
we locate evidence in the bill of exceptions reflecting when
Mitchell was read his Miranda rights. The situation is similar
to that in State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
In Huff, the defendant argued that officers had improperly
commented on his invocation of the right to remain silent.
It was not apparent from the record, however, whether the
defendant was advised of his Miranda rights at the time.
The court “treated the defend­ ant’s silence as pre-Miranda
[because] the record did not indicate that he had received
any Miranda warnings.” Huff, 282 Neb. at 112, 802 N.W.2d
at 104. In the present case, the record does not reflect when
Mitchell received Miranda warnings and we will therefore
treat Mitchell’s silence as occurring pre-Miranda.
[11,12] In a series of cases, the U.S. Supreme Court has
repeatedly indicated that reading a defendant his or her
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Miranda rights is the key factor in determining whether the
government can use a defendant’s silence. In Doyle v. Ohio,
426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), the
Court held that it violated due process to allow the govern-
ment to impeach a defendant’s version of the crime given at
trial by utilizing his or her postarrest, post-Miranda silence.
The Court stated:
[W]hile it is true that the Miranda warnings contain no
express assurance that silence will carry no penalty, such
assurance is implicit to any person who receives the
warnings. In such circumstances, it would be fundamen-
tally unfair and a deprivation of due process to allow the
arrested person’s silence to be used to impeach an expla-
nation subsequently offered at trial.
Doyle, 426 U.S. at 618.
[13,14] Employing similar reasoning, the U.S. Supreme
Court in Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L.
Ed. 2d 490 (1982), again treated the giving of Miranda warn-
ings as the point after which the government could not use a
defendant’s silence against him. The Fletcher Court held that
the government was permitted to impeach the defendant on the
stand by utilizing his silence after arrest because the record did
not reflect that he been read his Miranda warnings at the time.
Lastly, in Wainwright v. Greenfield, 474 U.S. 284, 106 S. Ct.
634, 88 L. Ed. 2d 623 (1986), the Supreme Court held that the
government could not use a defendant’s postarrest silence as
substantive evidence to refute the defendant’s insanity defense
because the silence had occurred post-Miranda.
The Nebraska Supreme Court followed the Doyle line of
cases, starting in State v. Lofquest, 223 Neb. 87, 388 N.W.2d
115 (1986). In Lofquest, the court remanded the postconvic-
tion action for an evidentiary hearing to determine whether
the prosecutor’s cross-examination of the defendant by means
of his refusal to speak referred to pre- or post-Miranda
silence. The court noted that per Doyle and Fletcher, the
giving of Miranda warnings is the point in time after which
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impeachment use of a defendant’s silence violates due proc­
ess. Lofquest, supra.
Next, in State v. Harms, 263 Neb. 814, 643 N.W.2d 359
(2002), the court addressed the defendant’s contention that the
State should not be permitted to use his silence as substantive
evidence of sanity in order to refute his insanity defense. The
case differed from Lofquest because the defendant in Harms
did not testify at the trial and so the State did not desire to use
his silence to impeach him, but, rather, to prove his sanity. The
Harms court relied on the reasoning of Doyle to conclude that
the silence of the defendant, after being arrested and receiving
Miranda warnings, could not be used against him to refute his
claim of insanity. However, the court concluded that the State
could utilize the silence of the defendant in Harms before
being arrested and read his Miranda rights. As in Lofquest, the
Harms court relied on the line of cases stemming from Doyle,
which treated the giving of Miranda warnings as the key point
in time after which the government was not permitted to utilize
the defendant’s silence. See, also, State v. Custer, 292 Neb.
88, 871 N.W.2d 243 (2015) (determining that prosecutor’s
comment on defendant’s prearrest, pre-Miranda silence was
permissible because prior cases have viewed giving Miranda
warnings as triggering event that prevents State from using
defendant’s silence).
However, these cases do not directly govern the issue pre-
sented in Mitchell’s case. In Lofquest, supra, the silence was
used to impeach the defendant; in the present case, the pros-
ecutor’s comment utilized Mitchell’s silence as evidence of
his guilt. Likewise, in Harms, supra, the silence in question
occurred before the defendant was arrested and before he had
been read his Miranda rights, whereas in the case at hand,
Mitchell had not yet been read his Miranda rights at the time
of his silence even though he was under arrest. The question of
whether a defendant’s postarrest but pre-Miranda silence can
be used as substantive evidence of his or her guilt has not been
addressed by any of the previously discussed cases.
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The Eighth Circuit Court of Appeals, however, has analyzed
the issue of postarrest, pre-Miranda silence used as substantive
evidence. In U.S. v. Frazier, 408 F.3d 1102 (8th Cir. 2005), the
government utilized the defendant’s postarrest, pre-Miranda
silence as substantive evidence of guilt in its case in chief.
The Eighth Circuit stated that “[a]lthough [the defendant]
was under arrest, there was no governmental action at that
point inducing his silence,” since he had not yet been read
his Miranda rights. Frazier, 408 F.3d at 1111. The Frazier
court therefore concluded that the government could utilize
the defendant’s postarrest, pre-Miranda silence as substantive
evidence of his guilt.
We agree with the reasoning of the Eighth Circuit. The
Nebraska Supreme Court made it clear in Lofquest and Harms
that the giving of Miranda warnings—not the fact of being
under arrest—is the key inquiry in determining when the State
can utilize a defendant’s silence. See, State v. Harms, 263
Neb. 814, 643 N.W.2d 359 (2002); State v. Lofquest, 223 Neb.
87, 388 N.W.2d 115 (1986). Before the giving of Miranda
warnings, there is no state action inducing the defendant to
remain silent. See Frazier, supra. This logic applies equally to
impeachment use of silence as to the use of silence as substan-
tive evidence of a defendant’s guilt.
[15] In the present case, we presume Mitchell had not yet
been given his Miranda warnings at the time he remained
silent. See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011).
Because his silence occurred pre-Miranda, the prosecutor’s
comment utilizing Mitchell’s silence as evidence of his guilt
was not improper.
Mitchell also argues the prosecutor’s comment improperly
implied that Mitchell had a burden to disprove the charges
against him. However, the trial court instructed the jury to dis-
regard the prosecutor’s comment about what Mitchell did not
deny. Furthermore, the jury instructions correctly stated that
the burden to prove the alleged crimes beyond a reasonable
doubt rested on the State. In light of the court’s admonishing
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STATE v. MITCHELL
Cite as 23 Neb. Ct. App. 657
the jury to disregard the comment and properly instructing
the jury, Mitchell has not demonstrated that he suffered actual
prejudice as a result of the trial court’s denial of his motion
for mistrial. See State v. Robinson, 271 Neb. 698, 715 N.W.2d
531 (2006).
We conclude the trial court did not abuse its discretion in
refusing to grant a mistrial.
3. Excessive Sentences
Mitchell argues that the sentences he received were exces-
sive. Mitchell asserts that the trial court did not give proper
weight to his mental health issues and instead focused solely
on his criminal history. We disagree.
[16,17] When imposing a sentence, a sentencing judge
should consider the defendant’s age, mentality, education
and experience, social and cultural background, past criminal
record, and motivation for the offense, as well as the nature
of the offense and the violence involved in the commission
of the crime. State v. Howard, 282 Neb. 352, 803 N.W.2d 450
(2011). Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the 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. Dixon, 286 Neb. 334, 837 N.W.2d
496 (2013).
Mitchell was sentenced to 5 to 10 years’ imprisonment, and
his driving privileges and driver’s license were revoked for
15 years for fourth-offense DUI, a Class III felony. See Neb.
Rev. Stat. § 60-6,197.03(8) (Cum. Supp. 2014). Mitchell’s sen-
tence is within the statutory range. See, id. (stating that person
convicted of fourth-offense DUI shall have his or her license
revoked for 15 years); Neb. Rev. Stat. § 28-105 (Cum. Supp.
2014) (providing sentencing range for Class III felonies of 1
to 20 years’ imprisonment). Mitchell was sentenced to 1 to 2
years’ imprisonment, and his driving privileges and driver’s
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
STATE v. MITCHELL
Cite as 23 Neb. Ct. App. 657
license were revoked for 15 years for driving during revoca-
tion. Mitchell’s sentence for driving during revocation is also
within the statutory limits. See, Neb. Rev. Stat. § 60-6,197.06
(Reissue 2010) (stating that driving during revocation is
Class IV felony and that person convicted of driving during
revocation shall have his or her license revoked for 15 years);
§ 28-105 (stating that sentencing range for Class IV felony is
0 to 5 years’ imprisonment).
In the present case, the court stated at the sentencing hear-
ing that it was taking into account “the nature and circum-
stances of the crimes, and history, character and condition
of [Mitchell].” The court indicated that it had considered a
letter from Mitchell’s attorney that stated Mitchell suffered
from schizophrenia, depression, and anxiety. The court stated,
however, that it could not “ignore the serious nature of this
crime and all of the surrounding facts and circumstances.”
The court noted Mitchell’s extensive criminal history and the
need to protect the public. The court concluded that “imprison-
ment [was] necessary for the protection of the public, because
the risk [was] substantial that during any period of probation,
[Mitchell] would engage in additional criminal conduct, and
because a lesser sentence would depreciate the seriousness of
the . . . crimes.” We cannot find an abuse of discretion in the
sentences imposed in this case.
V. CONCLUSION
We find no merit to Mitchell’s assertions of error on appeal.
We affirm.
A ffirmed.