State v. Knight , 31 Neb. Ct. App. 176 ( 2022 )

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www.nebraska.gov/apps-courts-epub/
07/19/2022 01:05 AM CDT
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STATE v. KNIGHT
Cite as 31 Neb. App. 176State of Nebraska, appellee, v.
Jesse O. Knight, appellant.
___ N.W.2d ___
Filed July 12, 2022. No. A-21-158.
1. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact. The relevant question for an appellate court
is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
2. Words and Phrases. Recklessness is the disregard for or indifference to
the safety of another or for the consequences of one’s act.
3. Criminal Law: Motor Vehicles. Reckless driving lies somewhere
between careless driving and willful reckless driving.
4. ____: ____. Incidents of willful reckless driving commonly involve
some combination of a high level of speeding that is particularly
dangerous based on the circumstances, such as speeding on a heavily
populated roadway; fleeing arrest; hitting other vehicles or property (or
the threat of this occurring); road rage; driving through stop signs and
red lights; or other forms of particularly erratic driving. On the other
hand, reckless driving cases often involve less extreme actions, such as
moderate speeding, erratic lane changes, and other forms of irrespon-
sible driving.
Appeal from the District Court for Sarpy County: Michael
A. Smith, Judge. Affirmed.
Joshua W. Weir, of Black & Weir Law Offices, L.L.C., for
appellant.
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STATE v. KNIGHT
Cite as 31 Neb. App. 176Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Jesse O. Knight appeals from his convictions of motor
vehicle homicide by reckless driving and reckless driving. The
sole issue on appeal is whether the evidence was sufficient for
the jury to find that Knight was guilty of driving recklessly,
as opposed to the lesser-included offense of driving carelessly.
For the following reasons, we affirm.
BACKGROUND
On November 16, 2020, the State filed an amended infor-
mation charging Knight with two counts of motor vehicle
homicide by reckless driving, in violation of Neb. Rev. Stat.
§ 28-306(3)(a) (Reissue 2016), and one count of reckless driv-
ing, in violation of Neb. Rev. Stat. § 60-6,213 (Reissue 2021).
The amended information further charged Knight with one
count of operating a commercial motor vehicle with a canceled
commercial motor vehicle license, in violation of Neb. Rev.
Stat. § 60-4,141(1) (Reissue 2021); however, Knight pleaded
guilty to that charge and does not challenge that conviction
on appeal.
A jury trial on the State’s amended information was held
over the course of 3 days from November 18 to 20, 2020. The
parties entered into a stipulated set of facts establishing that
on August 7, 2019, Knight was operating a loaded Kenworth
dump truck traveling eastbound on Highway 370 in Sarpy
County, Nebraska, when he collided with vehicles stopped at
the red traffic light located at the intersection of Highway 370
and 192d Street. Two children were killed in the collision, and
Knight’s “unlawful operation of a motor vehicle was the proxi-
mate cause of [death].” Furthermore, Knight caused the deaths
of the two children “unintentionally while engaged in the
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STATE v. KNIGHT
Cite as 31 Neb. App. 176operation of a motor vehicle in violation of the law of the State
of Nebraska.” Further stipulations will be discussed below, but
suffice it to say that Knight stipulated he was guilty of motor
vehicle homicide in violation of § 28-306(1). The only ques-
tion submitted to the jury was whether Knight had been driv-
ing recklessly and was thus guilty of the aggravated offense
of motor vehicle homicide by reckless driving described under
§ 28-306(3)(a).
In addition to the above, the parties further stipulated to
the following facts: The traffic lights at the intersection of
Highway 370 and 192d Street were fully operational and turned
red as Knight approached the intersection. There were yellow
warning signals placed on both sides of eastbound Highway
370 approximately 648 feet before the intersection. The yellow
warning signals contained a sign advising drivers to “‘prepare
to stop when [yellow lights attached are] flashing,’” and the
attached yellow lights were flashing when Knight passed the
warning signals. There were two vehicles ahead of Knight’s
dump truck in the right lane of eastbound Highway 370. Both
vehicles came to a stop at the intersection of Highway 370 and
192d Street and remained stopped as Knight approached the
intersection. The first vehicle to stop at the intersection was
a Honda Accord with one occupant, and the second vehicle
was a Toyota Sienna with five occupants. The posted speed
limit was 55 miles per hour, and Knight’s vehicle initially col-
lided with the Toyota Sienna while traveling at “a minimum
[speed] of 47 miles per hour,” ultimately killing two of the
five occupants. Knight received a phone call at 9:32:13 a.m.
which lasted 13 minutes 23 seconds, indicating that the call
was ended at 9:45:36 a.m. The first 911 emergency dispatch
service call following the collision was received by dispatch
at 9:47:21 a.m., and the eyewitness who placed the call esti-
mated that he made the call between 30 seconds and 1 minute
after the collision. This estimate places the collision between
9:46:21 a.m. and 9:46:51 a.m., approximately 1 minute after
Knight ended the 13-minute phone call. Finally, there were no
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STATE v. KNIGHT
Cite as 31 Neb. App. 176signs that Knight was under the influence of any intoxicants at
the time of the collision.
At trial, the State adduced additional evidence relevant
to whether Knight operated his vehicle in a reckless man-
ner. Photographs of the scene depict the pertinent section of
Highway 370 as a flat and straight stretch of road. Moreover,
photographs taken shortly after the collision depict clear and
sunny weather conditions on the day in question. Multiple eye-
witnesses testified that Knight’s dump truck showed no signs
of slowing down or taking evasive action as it approached the
two vehicles stopped at the intersection, causing the witnesses
to fear a collision was imminent.
A Sarpy County sheriff’s deputy conducted a search of
Knight at the scene and testified that Knight did not pos-
sess any device for hands-free cell phone use. Another Sarpy
County sheriff’s deputy spoke with Knight at the scene and
testified that Knight told him that he “saw the red light and saw
the vehicles stopped, and he hit the brakes but nothing hap-
pened.” That deputy later clarified that Knight said not that he
saw the light turn red, but that he “saw the red light.”
A Sarpy County sheriff’s investigator testified that he ana-
lyzed data from Knight’s cell phone using “Cellbrite” software,
which was the basis for the stipulated facts related to the
13-minute phone call. The investigator testified that the soft-
ware collects data such as call logs, internet history, and text
messages, but that the data collected from Knight’s cell phone
would not show whether he was otherwise distracted by his
phone. On cross-examination, the investigator confirmed that
the software report also would not indicate whether Knight was
using the speaker function on the cell phone.
Shawn Reeh worked as a part-time mechanic for the com-
pany that owned the Kenworth dump truck Knight was driv-
ing, and he testified that he was responsible for inspecting
and maintaining the truck. Reeh testified that he conducted
yearly inspections on the truck, the most recent of which
occurred in March 2019. The State submitted Reeh’s annual
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STATE v. KNIGHT
Cite as 31 Neb. App. 176inspection reports for the years 2016 to 2019, and Reeh testi-
fied at length regarding the manner in which he inspected and
maintained the brake system on the truck. In addition to the
yearly inspections, Reeh testified he also conducted periodic
inspections on the truck roughly once every 2 weeks. While
Reeh could not recall the precise day on which he conducted
the most recent inspection on the truck, he testified that it
would have been within 2 to 3 weeks of the accident.
Reeh testified that the truck was equipped with an airbrake
system which uses compressed air to disengage the emergency
or parking brakes and engage the “service brakes,” the latter of
which operate when the driver presses the brake pedal. Reeh
testified that the brake system is built with redundancies such
that if there were a catastrophic loss of air pressure in the sys-
tem, then the emergency brake would automatically engage to
stop the truck. Reeh also noted that the system’s air compressor
is capable of coping with minor air leaks in the system and that
“it would have to be a large leak” for a driver to notice a loss
of function in the service brakes.
Trooper Cody McGee of the Nebraska State Patrol con-
ducted a postcrash inspection on the truck, and the State
submitted numerous photographs taken by McGee during his
inspection. One such photograph showed a log of Knight’s
trips on the morning in question, which log indicated that
Knight was on his second or third trip of the day. McGee also
discussed how the towing company had to “cage” the brakes
to tow the truck from the scene, indicating that the emergency
brakes were operational and engaged after the crash. McGee
noted a number of “violations,” which he referred to as either
“pre-crash” or “post-crash.” For example, McGee testified
that he discovered a “small leak” in an airhose that he marked
as a “pre-crash violation”; however, he added that he “could
not definitively say” whether it was precash or postcrash. In
any case, McGee testified that in his experience, small leaks
such as that do not cause catastrophic brake failure. McGee
opined that even if this minor leak was a precrash violation,
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Cite as 31 Neb. App. 176it would not have had any impact on the functionality of the
service brakes. In contrast, McGee testified that he also dis-
covered a “broken air line,” which he identified as a postcrash
violation that would have caused catastrophic air loss from the
braking system, as it was a “much bigger hose, and a lot more
air comes out of that.” McGee identified a number of addi-
tional postcrash violations in the “air tanks” and “air line[s],”
further suggesting that the crash precipitated a catastrophic air
loss causing the emergency brakes to engage. The day after
the collision, McGee reconstructed the braking system and
was able to determine that the service brakes “were working
fine before the crash.”
Sgt. John Mobley of the Nebraska State Patrol testified
that he was trained as a traffic crash reconstructionist. While
Mobley did not conduct the crash reconstruction in this case,
he testified briefly regarding the reported minimum speed of
47 miles per hour as stipulated by the parties. Mobley con-
firmed that a report of a minimum speed is just that, it “is
purely a minimum” speed required to generate the evidence
left at the scene. Mobley explained, “What you’re doing is try-
ing to account for all of the energy that was expended through
braking . . . roadway friction . . . and then you also have energy
that’s expended in the crush of . . . the two vehicles . . . .”
Mobley added that in his training and experience, if 47 miles
per hour was the reported minimum speed, then “typically, [the
vehicle was] going faster than that.”
Sgt. Kyle Percifield of the Sarpy County sheriff’s office was
also trained as a crash reconstructionist, and he testified that he
completed a crash reconstruction in this case. Percifield testi-
fied that based on witness accounts, the evidence at the scene,
and his prior experience investigating similar cases, he “was
able to draw the conclusion that . . . Knight did not react or
brake prior to the collision.” On cross-examination, Percifield
acknowledged that the center of mass of the damage to the
Toyota Sienna was located slightly to the right or passenger
side of that vehicle, suggesting that Knight may have turned
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Cite as 31 Neb. App. 176the truck slightly to the right prior to impact. Yet, Percifield
reiterated his assessment that there was no evidence to indicate
Knight took evasive action prior to impact.
While Percifield ultimately concluded that Knight wholly
failed to brake prior to the collision, he specifically testified
that his investigation revealed no signs of “heavy braking”
prior to the collision. When asked about his use of the term
“heavy braking,” Percifield confirmed that he could not rule
out normal braking which would not have left tire marks on the
roadway. However, Percifield explained that he was neverthe-
less able to conclude that no braking had occurred, because it
would not have made sense for Knight to apply normal braking
under the circumstances of this case. That is, giving Knight the
benefit of the doubt that he did not intend to collide with the
stopped vehicles, Percifield concluded that upon seeing the red
light and stopped vehicles, Knight would have applied heavy
braking as opposed to normal braking. However, because there
was no evidence of heavy braking prior to the collision,
Percifield concluded that Knight failed to brake at all, indicat-
ing either that Knight did not see the red light and stopped cars
or that he noticed them at a point too late to stop or steer the
truck to avoid a collision.
Percifield testified that data collected from the Toyota
Sienna’s airbag control module demonstrated that the truck
was traveling “at least” 47 miles per hour at the point of
impact. Percifield explained that the airbag control module in
the Toyota Sienna recorded only the “longitudinal change in
velocity,” such that the data merely indicated the minimum
speed of impact required to account for the force exerted
on the longitudinal axis of the vehicle running from front to
back. Percifield further testified that because the impact was
not “completely square,” there must have been some degree
of “lateral forces” acting on the Toyota Sienna. These lateral
forces, if known, would increase the impact speed required to
account for all of the energy exerted on the vehicle. However,
because the Toyota Sienna did not record the lateral change in
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STATE v. KNIGHT
Cite as 31 Neb. App. 176velocity, Percifield was able to determine the minimum speed
required to account for only the longitudinal forces, which was
47 miles per hour. Based on this and additional data collected
from the scene, Percifield calculated that Knight would have
needed between 229 and 242 feet of road to safely stop the
truck. Percifield noted that there was approximately twice that
distance (648 feet) between the flashing yellow warning sig-
nals and the intersection where the collision occurred.
After trial, the jury found that Knight was driving recklessly
and thus found him guilty of two counts of motor vehicle
homicide by reckless driving and one count of reckless driving.
Knight appeals.
ASSIGNMENTS OF ERROR
Knight assigns that (1) the evidence adduced at trial was
insufficient to support convictions for motor vehicle homicide
by reckless driving and (2) the evidence at trial was insufficient
to support a conviction for reckless driving.
STANDARD OF REVIEW
[1] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same: An
appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence; such
matters are for the finder of fact. State v. Stack, 307 Neb. 773,
950 N.W.2d 611 (2020). 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 rea-
sonable doubt. Id.ANALYSIS
Section 28-306(1) provides in pertinent part that “[a] per-
son who causes the death of another unintentionally while
engaged in the operation of a motor vehicle in violation of
the law of the State of Nebraska . . . commits motor vehicle
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STATE v. KNIGHT
Cite as 31 Neb. App. 176homicide.” Section 28-306(2) provides that “[e]xcept as pro-
vided in subsection (3) of this section, motor vehicle homicide
is a Class I misdemeanor.” Section 28-306(3)(a) provides
that “[i]f the proximate cause of the death of another is the
operation of a motor vehicle in violation of section 60-6,213
or 60-6,214, motor vehicle homicide is a Class IIIA felony.”
Section 60-6,213 defines the offense of reckless driving, and
Neb. Rev. Stat. § 60-6,214 (Reissue 2021) defines the offense
of willful reckless driving.
As discussed above, the parties stipulated that Knight com-
mitted motor vehicle homicide as defined in § 28-306(1). The
only dispute at trial was whether Knight also committed the
offense of reckless driving, thereby triggering the aggravated
offense of motor vehicle homicide by reckless driving defined
in § 28-306(3)(a). After trial, the jury answered that question in
the affirmative and thus found Knight guilty of motor vehicle
homicide by reckless driving and reckless driving. On appeal,
Knight argues the evidence was not sufficient to find that he
was driving recklessly, such that the jury should have merely
found him guilty of motor vehicle homicide and careless driv-
ing. Thus, the only question before this court is whether, view-
ing the evidence in the light most favorable to the prosecution,
any rational jury could have found that Knight was driving
recklessly beyond a reasonable doubt.
[2-4] Under § 60-6,213, “[a]ny person who drives any
motor vehicle in such a manner as to indicate an indiffer-
ent or wanton disregard for the safety of persons or property
shall be guilty of reckless driving.” Recklessness is the dis-
regard for or indifference to the safety of another or for the
consequences of one’s act. State v. Green, 238 Neb. 475, 471
N.W.2d 402 (1991). Reckless driving lies somewhere between
careless driving and willful reckless driving. Id. Careless driv-
ing occurs when a person drives “without due caution so as
to endanger a person or property.” Neb. Rev. Stat. § 60-6,212
(Reissue 2021). Willful reckless driving occurs when a person
drives “in such a manner as to indicate a willful disregard
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Cite as 31 Neb. App. 176for the safety of persons or property.” § 60-6,214. This court
has previously observed:
[I]ncidents of willful reckless driving commonly involve
some combination of a high level of speeding that is par-
ticularly dangerous based on the circumstances, such as
speeding on a heavily populated roadway; fleeing arrest;
hitting other vehicles or property (or the threat of this
occurring); road rage; driving through stop signs and red
lights; or other forms of particularly erratic driving. . . .
On the other hand, reckless driving cases often involve
less extreme actions, such as moderate speeding, erratic
lane changes, and other forms of irresponsible driving.
State v. Scherbarth, 24 Neb. App. 897, 906-07, 900 N.W.2d
213, 221 (2017). While the present case does not involve evi-
dence of speeding, erratic lane changes, or aggressive driving,
we nevertheless conclude that there is evidence of irresponsible
driving which, when viewed in the light most favorable to
the prosecution, is sufficient to support a finding that Knight
exhibited an indifferent or wanton disregard for the safety of
persons or property.
On appeal, Knight asserts he was not driving recklessly
insofar as “[h]is driving was normal and unremarkable but for
the moment of inattention or driver error immediately preced-
ing the accident.” Brief for appellant at 13. It is true that the
collision in this case could have precipitated from inatten-
tion or driver error, as opposed to aggressive or erratic driv-
ing per se. However, the evidence belies any suggestion that
such inattention or driver error was confined to the moment
immediately preceding the collision. Rather, Knight failed to
attend to the flashing yellow warning signals placed 648 feet
before the intersection. Knight then failed to attend to the traf-
fic light which turned red as he approached the intersection.
Finally, Knight failed to attend to the vehicles in front of him,
which had slowed and ultimately stopped at the red light prior
to the collision. Moreover, Knight participated in a 13-minute
phone call which was estimated to have ended approximately
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Cite as 31 Neb. App. 1761 minute before the collision, and it is possible that the phone
call itself, or continued attention to the phone after the call
ended, contributed to Knight’s inattention.
The evidence demonstrates that Knight would have needed
between 229 and 242 feet of road to safely stop the truck. If he
had noticed the flashing warning signals, then he would have
had well over twice that distance to stop the truck. Even hav-
ing failed to observe the flashing warning signals, Knight had
ample opportunity to heed the red light and vehicles stopped
in front of him. Furthermore, even if Knight failed to observe
the red light and stopped vehicles in time to stop the truck, any
meaningful notice thereof would have provided an opportunity
to hit the brakes and steer the truck away from the stopped
vehicles. Yet, Knight apparently failed to take any action to
avoid the collision, save possibly turning the truck ever so
slightly to the right.
Altogether, it is clear that whatever the cause of Knight’s
inattention, such lasted much longer than a moment. Rather,
Knight was so distracted that he neglected to heed numerous
warning signs and drove a loaded dump truck straight through
a red traffic light at full speed. Sustained inattention of this
sort, when viewed in the light most favorable to the prosecu-
tion, is evidence sufficient to allow a rational jury to conclude
that Knight was engaged in reckless driving at the time of
the accident. See Commonwealth v. Cady, 300 Va. 325, 863
S.E.2d 858 (2021). Accordingly, we affirm Knight’s convic-
tions for motor vehicle homicide by reckless driving and reck-
less driving.
CONCLUSION
For the foregoing reasons, we affirm Knight’s convictions
for motor vehicle homicide by reckless driving and reck-
less driving.
Affirmed.