State v. Podrazo ( 2013 )


Menu:
  •             Decisions     of the    Nebraska Court of Appeals
    STATE v. PODRAZO	489
    Cite as 
    21 Neb. Ct. App. 489
    consequences) renders that proceeding the functional equiva-
    lent of “no prior adjudication,” which eliminates consideration
    of § 43-292(6) as a ground for termination. Our review of the
    one remaining ground, § 43-292(4), reveals insufficient evi-
    dence in the record to support termination. Accordingly, we
    reverse the order of the juvenile court terminating Michael’s
    parental rights to Keisha.
    R eversed.
    State of Nebraska, appellee, v.
    Nicholas J. Podrazo, appellant.
    ___ N.W.2d ___
    Filed December 10, 2013.      No. A-12-257.
    1.	 Criminal Law: Trial: Pretrial Procedure: Motions to Suppress: Appeal and
    Error. In a criminal trial, after a pretrial hearing and order denying a motion to
    suppress, the defendant must object at trial to the admission of evidence sought
    to be suppressed to preserve an appellate question concerning admissibility of
    that evidence.
    2.	 Trial: Evidence: Motions to Suppress: Waiver: Appeal and Error. A failure to
    object to evidence at trial, even though the evidence was the subject of a previ-
    ous motion to suppress, waives the objection, and that party will not be heard to
    complain of the alleged error on appeal.
    3.	 Trial: Evidence: Stipulations: Waiver. A concession or stipulation as to a fact
    made for the purpose of trial has the force and effect of an established fact bind-
    ing on the party making the same, as well as on the court, unless the court in its
    reasonable discretion allows the concession to be later withdrawn, explained, or
    modified if it appears to have been made by improvidence or mistake.
    4.	 Constitutional Law: Search and Seizure: Motions to Suppress: Appeal and
    Error. In reviewing a trial court’s ruling on a motion to suppress based on a
    claimed violation of the Fourth Amendment, 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. But whether those facts trigger or violate Fourth
    Amendment protections is a question of law that an appellate court reviews inde-
    pendently of the trial court’s determination.
    5.	 Constitutional Law: Search and Seizure. The Fourth Amendment to the U.S.
    Constitution and article I, § 7, of the Nebraska Constitution protect individuals
    against unreasonable searches and seizures by the government. These constitu-
    tional provisions do not protect citizens from all governmental intrusion, but only
    from unreasonable intrusions.
    6.	 Constitutional Law: Warrantless Searches: Search and Seizure. Warrantless
    searches and seizures are per se unreasonable under the Fourth Amendment,
    Decisions of the Nebraska Court of Appeals
    490	21 NEBRASKA APPELLATE REPORTS
    subject only to a few specifically established and well-delineated exceptions,
    which must be strictly confined by their justifications.
    7.	   Warrantless Searches. The warrantless search exceptions recognized by
    Nebraska courts include searches undertaken with consent, searches justified
    by probable cause, searches under exigent circumstances, inventory searches,
    searches of evidence in plain view, and searches incident to a valid arrest.
    8.	   Warrantless Searches: Search and Seizure: Proof. In the case of a search and
    seizure conducted without a warrant, the State has the burden of showing the
    applicability of one or more of the exceptions to the warrant requirement.
    9.	   Warrantless Searches: Search and Seizure: Motor Vehicles: Police Officers
    and Sheriffs. The warrantless seizure of a vehicle is lawful when the officers
    could have immediately searched the vehicle without a warrant.
    10.	   Warrantless Searches: Motor Vehicles: Police Officers and Sheriffs: Probable
    Cause. Whether a warrantless search of a vehicle could have been conducted is
    determined by whether the vehicle was readily mobile and the officers had prob-
    able cause to believe the vehicle contained contraband or evidence of a crime.
    11.	   Probable Cause: Words and Phrases. Probable cause escapes precise definition
    or quantification into percentages because it deals with probabilities and depends
    on the totality of the circumstances.
    12.	   ____: ____. Probable cause is a flexible, commonsense standard. It merely
    requires that the facts available to the officer would warrant a person of reason-
    able caution in the belief that certain items may be contraband or stolen property
    or useful as evidence of a crime; it does not demand any showing that such a
    belief be correct or more likely true than false.
    13.	   Probable Cause: Appeal and Error. Appellate courts determine probable
    cause by an objective standard of reasonableness, given the known facts and
    circumstances.
    14.	   Rules of Evidence. In all proceedings where the Nebraska Evidence Rules apply,
    admissibility of evidence is controlled by the Nebraska Evidence Rules, not judi-
    cial discretion, except in those instances under the rules when judicial discretion
    is a factor involved in determining admissibility.
    15.	   Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
    commit the evidentiary question at issue to the discretion of the trial court, the
    admissibility of evidence is reviewed for an abuse of discretion.
    16.	   Constitutional Law: Criminal Law: Witnesses. The Sixth Amendment pro-
    vides that in all criminal prosecutions, the accused shall enjoy the right to be
    confronted with the witnesses against him and to have compulsory process for
    obtaining witnesses in his favor.
    17.	   Judges: Evidence: Appeal and Error. The exercise of judicial discretion is
    implicit in determinations of relevancy and prejudice, and a trial court’s decision
    regarding them will not be reversed absent an abuse of discretion.
    18.	   Evidence: Words and Phrases. Relevant evidence means evidence having any
    tendency to make the existence of any fact that is of consequence to the deter-
    mination of the action more probable or less probable than it would be without
    the evidence.
    19.	   Rules of Evidence: Appeal and Error. The exercise of judicial discretion is
    implicit in determinations of relevancy and admissibility under Neb. Rev. Stat.
    Decisions      of the   Nebraska Court of Appeals
    STATE v. PODRAZO	491
    Cite as 
    21 Neb. Ct. App. 489
    § 27-406 (Reissue 2008), and as a result, the trial court’s decision will not be
    reversed absent an abuse of discretion.
    20.	   Trial: Evidence. The precise contours of how frequently and consistently a
    behavior must occur to rise to the level of habit cannot be easily defined or
    formulated, and admissibility depends on the trial judge’s evaluation of the par-
    ticular facts of the case.
    21.	   ____: ____. Evidence of a single incident, even if it is true, is an insufficient
    showing of a routine or habit.
    22.	   Pretrial Procedure: Appeal and Error. A trial court has broad discretion in
    granting discovery requests and errs only when it abuses its discretion.
    23.	   Physician and Patient: Evidence. Generally, confidential communications made
    by a patient to a physician or professional counselor for the purposes of diagnosis
    and treatment are privileged.
    24.	   Physician and Patient: Evidence: Witnesses: Proof. Before the testimony of a
    witness is excluded under Neb. Rev. Stat. § 27-504 (Reissue 2008), the defendant
    must make a showing that the failure to produce the privileged information is
    likely to impair the defendant’s ability to effectively cross-examine the witness
    claiming the privilege. If the defendant succeeds in making such a showing, the
    court may then afford the State an opportunity to secure the consent of the wit-
    ness for the court to conduct an in camera inspection of the claimed information
    and, if necessary, to turn over to the defendant any relevant material for the
    purposes of cross-examination. If the witness does not consent, the court may be
    obliged to strike the testimony of the witness.
    25.	   Trial: Expert Witnesses. The trial court acts as a gatekeeper to ensure the evi-
    dentiary relevance and reliability of an expert’s opinion.
    26.	   Trial: Courts. A trial court has broad discretion in determining how to perform
    its gatekeeper function.
    27.	   Expert Witnesses: Appeal and Error. The standard for reviewing the admis-
    sibility of expert testimony is abuse of discretion.
    28.	   Judgments: Words and Phrases. 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.
    29.	   Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
    question of law, regarding which an appellate court is obligated to reach a conclu-
    sion independent of the determination reached by the trial court.
    30.	   Jury Instructions. A trial court is not obligated to instruct the jury on matters
    which are not supported by evidence in the record.
    31.	   Jury Instructions: Proof: Appeal and Error. To establish reversible error from
    a court’s refusal to give a requested instruction, an appellant has the burden to
    show that (1) the tendered instruction is a correct statement of the law, (2) the
    tendered instruction is warranted by the evidence, and (3) the appellant was
    prejudiced by the court’s refusal to give the tendered instruction.
    32.	   Jury Trials: Affidavits: Appeal and Error. Errors predicated on occurrences
    during the course of voir dire examination cannot be shown by affidavit.
    33.	   Jury Trials: Records: Appeal and Error. An appellate court will not undertake
    to resolve disputes about what is claimed to have happened, when a record of the
    voir dire examination could have been made.
    Decisions of the Nebraska Court of Appeals
    492	21 NEBRASKA APPELLATE REPORTS
    34.	 Motions for Mistrial: Appeal and Error. An appellate court will not disturb a
    trial court’s decision whether to grant a motion for mistrial unless the court has
    abused its discretion.
    35.	 Motions for New Trial: Appeal and Error. A motion for new trial is addressed
    to the discretion of the trial court, and unless an abuse of discretion is shown, the
    trial court’s determination will not be disturbed.
    36.	 Criminal Law: Jury Misconduct: Proof. A criminal defendant claiming jury
    misconduct bears the burden of proving, by a preponderance of the evidence, (1)
    the existence of jury misconduct and (2) that such misconduct was prejudicial to
    the extent that the defendant was denied a fair trial.
    37.	 Criminal Law: Juror Misconduct: Presumptions: Proof. In a criminal case,
    when misconduct involves a juror and a nonjuror, it gives rise to a rebut-
    table presumption of prejudice to the defendant which the State has the burden
    to overcome.
    38.	 Witnesses: Juror Misconduct: Appeal and Error. An appellate court reviews
    the trial court’s determinations of witness credibility and historical fact for clear
    error and reviews de novo the trial court’s ultimate determination whether the
    defendant was prejudiced by juror misconduct.
    39.	 Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial
    depends largely on the context of the trial as a whole.
    40.	 Motions for Mistrial: Prosecuting Attorneys: Proof. Before it is necessary to
    grant a mistrial for prosecutorial misconduct, the defendant must show that a
    substantial miscarriage of justice has actually occurred.
    41.	 Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
    by an appellate court only if the sentences complained of were an abuse of judi-
    cial discretion.
    Appeal from the District Court for Douglas County: James T.
    Gleason, Judge. Affirmed.
    Denise E. Frost and Clarence E. Mock, of Johnson & Mock,
    for appellant.
    Jon Bruning, Attorney General, and Nathan A. Liss for
    appellee.
    Inbody, Chief Judge, and Irwin and Riedmann, Judges.
    Riedmann, Judge.
    I. INTRODUCTION
    Nicholas J. Podrazo appeals from his conviction in the
    district court for Douglas County for the first degree sexual
    assault and attempted first degree assault of A.T. Because we
    find no merit to Podrazo’s arguments on appeal, we affirm.
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	493
    Cite as 
    21 Neb. Ct. App. 489
    II. BACKGROUND
    1. Events Surrounding Charges
    The events surrounding this case began on December 23,
    2010. At that time, A.T. was living near 22d and Maple
    Streets in Omaha, Nebraska (Maple Street residence), with her
    friends Richard Gregory, Ellen Mruz, Brett Smith, and Ashley
    Forsman. A.T., Mruz, Smith, and Forsman began drinking alco-
    hol sometime in the afternoon on December 23. Around 7 p.m.,
    A.T. and Forsman left to have dinner with A.T.’s mother. While
    they were gone, Podrazo and two other men arrived at the
    Maple Street residence; Podrazo brought a bottle of rum and a
    box of “whip-it” canisters with him. When A.T. and Forsman
    returned from dinner, they joined everyone in drinking rum,
    “doing whip-its,” and smoking marijuana.
    Around 9:30 p.m., the partygoers noticed that A.T. and
    Podrazo were missing. They searched the inside and outside of
    the residence but could not find them. Mruz called Podrazo’s
    cell phone numerous times, and when he finally answered, he
    told her that he was “just driving around.” When Mruz asked
    to speak to A.T., the cell phone disconnected. Mruz and a
    couple of others noticed that A.T.’s car and keys were still at
    the house, but that Podrazo’s white Chevrolet (Chevy) Blazer
    was missing. They drove around the neighborhood in A.T.’s car
    looking for her but were unable to find her.
    Around 11:15 p.m. that night, a man and his fiance were
    returning to their home near 73d and Pratt Streets in Omaha
    (Pratt Street residence), when they noticed a white Chevy
    Blazer parked in the street near their driveway. The man
    attempted to look in the windows of the Blazer, but they were
    darkly tinted and fogged over, so he could not see anything
    inside except some clothing on the front seat. He went inside
    his house, and when he looked out the window 5 or 10 min-
    utes later, the Blazer was gone. Shortly after that, passersby
    discovered a nude, unresponsive female lying on the side of
    the road near where the Blazer had been parked and called the
    911 emergency dispatch service. An ambulance arrived a few
    minutes later and transported the female, later identified as
    A.T., to a hospital.
    Decisions of the Nebraska Court of Appeals
    494	21 NEBRASKA APPELLATE REPORTS
    A.T. was initially kept sedated at the hospital, but after a
    few hours, she was allowed to wake up. She told the nurse that
    the last thing she could remember was returning to the Maple
    Street residence the previous night after eating dinner with her
    mother, and then taking a shot of rum. She did not remember
    seeing Podrazo or leaving the residence at all.
    A.T. consented to a sexual assault examination. The exami-
    nation revealed several bruises on her legs and a bruise near
    each eye, as well as abrasions on the back of her shoulder, the
    middle of her back, the side of her breast, and her cheek and
    nose. A.T. also had extensive injuries to her entire genital area.
    Her external vaginal area was reddened, and her hymen and
    anus were each torn in two places. She had petechial hemor-
    rhaging, extensive purple bruising, and swelling throughout her
    entire vaginal canal, as well as bruising from the opening of
    the vagina up to and all the way around her cervix. The nurse
    who performed the examination testified at trial that A.T.’s
    injuries were “[s]evere” and caused by blunt force trauma. In
    addition to these injuries, A.T. was diagnosed with a concus-
    sion, mild hypothermia, and first-degree frostbite on one fin-
    ger. Her blood alcohol content was .457 of a gram of alcohol
    per deciliter of blood.
    Several of A.T.’s friends, including Smith and Joshua
    Phillips, visited her in the hospital the morning of December
    24, 2010. After speaking with A.T. at the hospital, Smith,
    Phillips, and another friend went to Podrazo’s house to con-
    front him about what happened to A.T. Podrazo changed his
    story several times, but eventually admitted to them that he had
    sex with A.T. and that “it was rough.” Podrazo then handwrote
    a note stating that he and A.T. left the Maple Street residence
    and ended up pulling over in a neighborhood and having sex in
    his vehicle. He wrote that it “got a little crazy” and that “it was
    pretty rough.” Phillips gave that note to A.T.’s mother, who
    gave it to police.
    2. Investigation
    Detectives William Seaton and Kristine Love from the
    Omaha Police Department were assigned to investigate this
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	495
    Cite as 
    21 Neb. Ct. App. 489
    case. After speaking with the officers who responded to the
    scene at the Pratt Street residence and questioning A.T., Smith,
    Phillips, and Mruz at the hospital, the detectives were able to
    gather information on Podrazo. Specifically, they located his
    address and learned there was a 1999 white Chevy Blazer reg-
    istered in his name. They went to Podrazo’s residence, which
    was in Douglas County, but outside the city limits of Omaha,
    and at the request of Seaton, three additional Omaha police
    officers and a deputy from the Douglas County sheriff’s office
    accompanied them. The law enforcement officers arrived at
    Podrazo’s residence on the evening of December 24, 2010.
    They located a white Chevy Blazer that matched the witnesses’
    descriptions, and Seaton asked the Douglas County sheriff’s
    deputy to tow the vehicle to the city-county impound lot so that
    it could be searched and processed.
    Omaha police applied for and received a search warrant for
    the Blazer on December 27, 2010, and the search was con-
    ducted that day. Blood was found in several locations inside
    Podrazo’s Blazer, and samples taken from the rear center
    seat cushion and the handle of an ice scraper found in the
    cargo compartment matched A.T.’s DNA. Podrazo was ulti-
    mately arrested and charged with first degree sexual assault
    and attempted first degree assault.
    3. Motions
    (a) Motion to Suppress
    Prior to trial, Podrazo moved to suppress the evidence found
    in his Blazer. He argued that he did not consent to the search
    and seizure of his vehicle and that law enforcement did not
    have a warrant to search or seize the vehicle on December
    24, 2010.
    Love testified at the suppression hearing that when she
    first became involved in the case, she was informed that an
    occupant of the Pratt Street residence had told officers that
    he had seen a white 1990’s Chevy Blazer with darkly tinted
    windows parked in front of his residence in the location where
    A.T. was later found lying in the street. Love stated she spoke
    with several of A.T.’s friends at the hospital on December 24,
    Decisions of the Nebraska Court of Appeals
    496	21 NEBRASKA APPELLATE REPORTS
    2010, and learned that on the prior evening, Podrazo had been
    at the Maple Street residence with A.T., and that they both
    ended up missing along with Podrazo’s white Chevy Blazer.
    Love testified Mruz told her the general location of Podrazo’s
    residence and that he drove a “white utility vehicle.” Love
    also recounted her conversation with Phillips, during which
    Phillips told her Podrazo said that A.T. had been in his vehicle
    the previous night and that they had a sexual encounter inside
    of the vehicle. Additionally, Love testified that she spoke with
    the nurse who performed A.T.’s sexual assault examination and
    learned of the nature and extent of A.T.’s injuries.
    Love testified that after obtaining all of this information,
    she contacted Seaton and provided him with the information
    she had gathered. They located Podrazo’s exact address, and
    she asked Seaton to go there to make contact with Podrazo
    and see whether the white Chevy Blazer was present at the
    residence. Love explained that she was interested in the
    vehicle because, at that time, there was enough information to
    establish that the Blazer was the crime scene. After learning
    that Podrazo and his vehicle had been located at the residence,
    Love went to the residence herself and observed the vehicle
    parked in the driveway. When she arrived at Podrazo’s resi-
    dence, the Douglas County sheriff’s deputy and other Omaha
    police officers were already at the scene.
    Love admitted that she was not given consent to take the
    Blazer, but decided to seize it because she considered it the
    crime scene based on the information she had received from
    witnesses. She expressed concern about preserving any evi-
    dence contained in or on the Blazer. Because it was winter-
    time, Love was concerned that biological evidence on the
    outside of the vehicle could be destroyed or altered by wet
    snow. In addition, there were three people in the residence that
    could have moved the vehicle from its location or disrupted
    any evidence contained inside the vehicle. The court overruled
    Podrazo’s motion to suppress, concluding that police had prob-
    able cause to justify the warrantless seizure and subsequent
    search of the Blazer.
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	497
    Cite as 
    21 Neb. Ct. App. 489
    (b) Motion to Offer Evidence
    Prior to trial, Podrazo also provided notice to the court of
    his intent to offer certain evidence at trial. Specifically, he
    intended to offer evidence that A.T. admitted she is “always
    drunk or ‘high’” when she engages in sexual relations and that
    at least once prior to December 2010, A.T. had “‘blacked out’”
    and later learned that she had engaged in voluntary sexual rela-
    tions while drunk and/or high. He also notified the court that
    he intended to offer evidence that in the 12 to 18 months prior
    to December 2010, A.T. had been diagnosed with mental health
    issues, substance abuse, and cognitive difficulties and at least
    twice had received inpatient and intensive outpatient treatment
    for these conditions. The court denied Podrazo’s request to
    introduce the proffered evidence.
    (c) Motion for Access to
    Medical Records
    Prior to trial, Podrazo requested access to A.T.’s medical and
    mental health records or, if A.T. refused to allow access to the
    records, he requested that A.T. be prohibited from testifying
    at trial. The court denied the request, concluding that A.T.’s
    records were privileged and that there was no showing that
    denial of access to the records would deny Podrazo his right to
    confront the witness.
    (d) Motion to Offer
    Habit Evidence
    After trial began, Podrazo moved to offer evidence under
    Neb. Rev. Stat. § 27-406 (Reissue 2008) of A.T.’s “habit” of
    alcoholic blackouts as well as wandering during intoxication
    while inappropriately dressed. Podrazo relied upon the fact that
    A.T. had been convicted of minor in possession after an inci-
    dent that occurred in August 2011. On that date, police found
    A.T. walking barefoot in the street in the early morning hours,
    unsure of where she was or how she had gotten there. She
    was later determined to have a blood alcohol content of .252.
    Podrazo argued that this incident coupled with the December
    2010 incident at issue here constituted a “habit.” The court
    Decisions of the Nebraska Court of Appeals
    498	21 NEBRASKA APPELLATE REPORTS
    denied Podrazo’s motion, finding that two events separated by
    8 months were not sufficient to constitute habit.
    4. Trial
    The witnesses at trial testified regarding the events on
    December 23 and 24, 2010. In his defense, Podrazo called a
    consulting toxicologist, Dr. Michael Corbett, to testify. Dr.
    Corbett explained the effects alcohol has on the human body;
    specifically, that alcohol can cause “disinhibition,” which
    “makes you want to enjoy things that one probably wouldn’t
    do in a sober state.” According to Dr. Corbett, alcohol also
    impacts psychomotor skills and executive functioning, which
    is the function that will generally ensure that a person does not
    do things that “maybe one would like to do but shouldn’t do
    because he knows better in . . . a social situation.”
    Dr. Corbett explained that some people will experience a
    “blackout” while drinking and that an alcoholic blackout is dif-
    ferent from passing out, because blacking out is the inability
    to form long-term memories from short-term memories even
    though the person is totally conscious, whereas passing out
    refers to the onset of sleep. Stated more succinctly, a person is
    still conscious during a blackout, but there is no consciousness
    when one passes out. Dr. Corbett testified that other people
    cannot tell when a person is in a state of blackout. However, a
    person experiencing a blackout would most likely still display
    signs of intoxication.
    Podrazo asked Dr. Corbett if he had an opinion as to
    whether A.T. experienced disinhibition from consumption of
    alcohol and whether her alcohol consumption impaired her
    judgment and executive functioning. The State objected, on
    the grounds of foundation and relevance, to Dr. Corbett’s stat-
    ing these opinions, and the court sustained the objections. Dr.
    Corbett was also asked for his opinion as to when A.T.’s black-
    out would have ended. The court again sustained the State’s
    objections on the grounds of foundation and relevance.
    5. Jury Instructions
    At the jury instruction conference, Podrazo requested
    that the jury be given NJI2d Crim. 8.0, the instruction on
    the defense of intoxication. The court overruled Podrazo’s
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	499
    Cite as 
    21 Neb. Ct. App. 489
    request, stating that instruction 8.0 relates to intoxication by
    the defend­ nt and was not applicable in this case.
    a
    6. Verdict and Sentencing
    The jury ultimately convicted Podrazo on both counts. He
    was sentenced to 40 to 50 years’ imprisonment for the sexual
    assault conviction and a consecutive term of 10 to 16 years’
    imprisonment for attempted assault.
    7. Posttrial Motions
    After trial, Podrazo moved for a new trial. He argued he
    was entitled to a new trial, inter alia, because he was denied
    pretrial access to basic juror information and because of juror
    and prosecutorial misconduct during trial. We will describe
    the factual bases for these arguments more fully in our analy-
    sis below. The district court denied Podrazo’s motion for
    new trial.
    Podrazo now appeals to this court.
    III. ASSIGNMENTS OF ERROR
    Podrazo alleges, consolidated and restated, that the dis-
    trict court erred in (1) overruling his motion to suppress and
    admitting evidence from his Blazer; (2) refusing to allow him
    to introduce evidence of A.T.’s habits of blackouts and sex-
    ual relations during blackout, habitual intoxication connected
    with sexual activity, and memory impairment as a result of
    chronic substance abuse; (3) refusing him discovery access to
    A.T.’s mental health records; (4) refusing to allow Dr. Corbett
    to testify regarding the effect of A.T.’s alcohol consumption
    on her executive functioning and decisionmaking and when
    A.T.’s blackout ended; (5) refusing his proffered jury instruc-
    tion; (6) refusing to admit into evidence certain exhibits
    offered in support of his motion for new trial; (7) overrul-
    ing his motions for mistrial and new trial; and (8) imposing
    excessive sentences.
    IV. ANALYSIS
    1. Motion to Suppress
    Podrazo argues that the district court erred in denying his
    motion to suppress the evidence found in his Blazer, because
    Decisions of the Nebraska Court of Appeals
    500	21 NEBRASKA APPELLATE REPORTS
    the Omaha Police Department officers acted outside the geo-
    graphic boundaries of their jurisdiction and the seizure did not
    meet any of the exceptions to the warrant requirement. Before
    addressing the merits of Podrazo’s motion to suppress, we must
    address the State’s arguments that this issue has not been prop-
    erly preserved for appeal.
    [1,2] The State contends Podrazo failed to properly preserve
    this issue, because he did not timely renew his motion to sup-
    press at trial. In a criminal trial, after a pretrial hearing and
    order denying a motion to suppress, the defendant must object
    at trial to the admission of evidence sought to be suppressed
    to preserve an appellate question concerning admissibility of
    that evidence. State v. Timmens, 
    263 Neb. 622
    , 
    641 N.W.2d 383
    (2002). A failure to object to evidence at trial, even though
    the evidence was the subject of a previous motion to suppress,
    waives the objection, and that party will not be heard to com-
    plain of the alleged error on appeal. 
    Id. At trial,
    evidence of what was seized from Podrazo’s Blazer
    was introduced through the testimony of two witnesses and the
    parties’ stipulation to the DNA test results. Podrazo did not
    object to this evidence at the time it was introduced. After the
    State rested its case in chief, Podrazo renewed his motion to
    suppress. The trial court then stated:
    [M]y recollection is that we had talked in advance and the
    agreement was you needn’t make your objections at the
    time. You could renew them the first time the jury was
    out of — the first reasonable time when the jury was not
    present with the same effect as if you had made them, and
    the basis was the suppression ruling briefly.
    ....
    . . . All of that is treated as if you had appropriately
    objected. My ruling would be that the objections were
    overruled consistent with my prior order in the suppres-
    sion hearing.
    Based on this comment, we understand the parties agreed
    that Podrazo was not required to object at the time the evidence
    was introduced, but, rather, that he could wait until the first
    reasonable time outside the presence of the jury. The parties’
    agreement, coupled with the fact that the trial court treated
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	501
    Cite as 
    21 Neb. Ct. App. 489
    Podrazo’s renewal of his motion to suppress as if he had appro-
    priately objected, is sufficient for us to address this assignment
    of error. We caution counsel, however, that any agreements
    between them or among them and the court should appear on
    the record and not be left to a regurgitation by the court as to
    what those agreements entailed.
    [3] The State also alleges that even if Podrazo properly
    renewed his objection at trial, he still waived the objections
    made in his motion to suppress, because he stipulated to the
    admission of the DNA test results. A concession or stipulation
    as to a fact made for the purpose of trial has the force and
    effect of an established fact binding on the party making the
    same, as well as on the court, unless the court in its reason-
    able discretion allows the concession to be later withdrawn,
    explained, or modified if it appears to have been made by
    improvidence or mistake. State v. Davis, 
    224 Neb. 205
    , 
    397 N.W.2d 41
    (1986). Here, Podrazo stipulated only to the fact
    that blood found on the Blazer’s rear seat cushion and an ice
    scraper found in the cargo area of the Blazer matched A.T.’s
    DNA. He did not stipulate that the blood was properly seized
    or otherwise waive any arguments made in his motion to sup-
    press with respect to the manner in which the blood samples
    were collected. We will therefore address this assignment
    of error.
    (a) Jurisdiction
    Podrazo argues the evidence found in his Blazer should
    have been suppressed because the vehicle was seized by
    Omaha police officers from his residence, which is outside of
    the Omaha city limits. The State contends this argument has
    been waived for appellate review, because it was not raised
    in the trial court. We disagree because the record indicates
    the jurisdiction issue was raised at the hearing on Podrazo’s
    motion to suppress and at the hearing on his motion for
    new trial.
    At the suppression hearing, testimony was elicited from
    Love that Omaha police requested a Douglas County sher-
    iff’s deputy to accompany them to Podrazo’s residence. Love
    testified that she and Seaton asked the deputy to tow the
    Decisions of the Nebraska Court of Appeals
    502	21 NEBRASKA APPELLATE REPORTS
    Blazer because they knew the vehicle was located in Douglas
    County’s jurisdiction.
    At the posttrial hearing on Podrazo’s motion for new trial,
    Podrazo repeated his argument that the evidence obtained from
    his Blazer should have been suppressed because Omaha police
    officers were outside their jurisdiction when the Blazer was
    seized. The court then asked the State whether it was prepared
    to address the “vehicle issue.” The following colloquy then
    took place:
    [The State]: I was not considering it. I was here at the
    motion to suppress, Your Honor. I know that issue came
    up, and I believe it was addressed. I honestly don’t recall.
    THE COURT: All right.
    [The State]: I know I briefed the matter. I’m — I
    apologize.
    THE COURT: That’s okay. Your — your contention
    would be then that because they had a deputy sheriff
    there and were acting in concert, that that made every-
    thing okay?
    [The State]: Yes, Your Honor. I believe that’s what was
    at the suppression hearing.
    Based on the foregoing, we conclude that this issue was pre-
    sented to the trial court via both the motion to suppress and the
    motion for new trial. It was therefore properly preserved for
    our consideration on appeal.
    [4] In reviewing a trial court’s ruling on a motion to sup-
    press based on a claimed violation of the Fourth Amendment,
    we apply a two-part standard of review. Regarding historical
    facts, we review the trial court’s findings for clear error. But
    whether those facts trigger or violate Fourth Amendment pro-
    tections is a question of law that we review independently of
    the trial court’s determination. State v. Bromm, 
    285 Neb. 193
    ,
    
    826 N.W.2d 270
    (2013).
    Podrazo claims the seizure of his Blazer was unlawful
    because Omaha police officers acted outside the geographic
    boundaries of their jurisdiction. He cites to Neb. Rev. Stat.
    § 29-215 (Reissue 2008) to assert that “[t]he illegality of
    [Omaha police’s] seizure was not cured by the mere presence
    of the Douglas County deputy sheriff” and that the State has
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	503
    Cite as 
    21 Neb. Ct. App. 489
    the burden to produce affirmative evidence of an interlocal
    agreement allowing law enforcement officers to act outside
    their jurisdiction. Brief for appellant at 27.
    Podrazo is misconstruing the facts of this case. Section
    29-215 authorizes law enforcement officers to act outside
    their primary jurisdiction in limited circumstances. But it was
    not Omaha police officers who performed the seizure of the
    Blazer; it was the Douglas County sheriff’s deputy. Although
    Omaha police directed the sheriff’s deputy to seize the Blazer,
    the sheriff’s deputy was the officer who actually towed the
    vehicle. Podrazo cites to no authority supporting his argument
    that these actions were unlawful and that the officers who have
    proper jurisdiction must be the ones directing the investigation,
    nor did we find any indicating this to be true.
    We noted in State v. Hill, 
    12 Neb. Ct. App. 492
    , 
    677 N.W.2d 525
    (2004), that the detention of a suspect by an officer outside
    his jurisdiction was appropriate in part because the detention
    lasted for only a brief period before local law enforcement
    officers, whose authority was not at issue on appeal, arrived on
    the scene and effected a lawful arrest. Similarly, in this case,
    the Douglas County sheriff’s deputy, whose authority to seize
    the Blazer is not at issue, arrived at Podrazo’s residence before
    any property was seized and was the officer who towed the
    Blazer. While we recognize that the situation presented in Hill
    is distinguishable from the present case, we find our ration­
    ale relevant nonetheless. We therefore find that the seizure of
    the Blazer was lawful, and the district court properly denied
    Podrazo’s motion to suppress on this basis.
    (b) Warrant Exception
    Podrazo also asserts that the district court erred in denying
    his motion to suppress, because his Blazer was seized without
    a warrant and none of the exceptions to the warrant require-
    ment apply. The State contends that the vehicle was properly
    seized because it was readily mobile and officers had probable
    cause to believe it contained evidence of a crime.
    [5-8] The Fourth Amendment to the U.S. Constitution and
    article I, § 7, of the Nebraska Constitution protect individuals
    against unreasonable searches and seizures by the government.
    Decisions of the Nebraska Court of Appeals
    504	21 NEBRASKA APPELLATE REPORTS
    State v. Smith, 
    279 Neb. 918
    , 
    782 N.W.2d 913
    (2010). These
    constitutional provisions do not protect citizens from all gov-
    ernmental intrusion, but only from unreasonable intrusions.
    
    Id. Warrantless searches
    and seizures are per se unreasonable
    under the Fourth Amendment, subject only to a few specifi-
    cally established and well-delineated exceptions, which must
    be strictly confined by their justifications. 
    Smith, supra
    . The
    warrantless search exceptions recognized by Nebraska courts
    include searches undertaken with consent, searches justified by
    probable cause, searches under exigent circumstances, inven-
    tory searches, searches of evidence in plain view, and searches
    incident to a valid arrest. See 
    id. In the
    case of a search and
    seizure conducted without a warrant, the State has the burden
    of showing the applicability of one or more of the exceptions
    to the warrant requirement. 
    Id. [9,10] In
    State v. Alarcon-Chavez, 
    284 Neb. 322
    , 
    821 N.W.2d 359
    (2012), the Nebraska Supreme Court upheld the
    warrantless seizure of a vehicle because it was supported
    by probable cause. In that case, police officers seized the
    defend­ nt’s vehicle and then later searched it after obtaining
    a
    a search warrant. The Nebraska Supreme Court explained
    that the warrantless seizure of a vehicle is lawful when the
    officers could have immediately searched the vehicle without
    a warrant. See 
    id. Whether a
    warrantless search of a vehicle
    could have been conducted is determined by whether the
    vehicle was readily mobile and the officers had probable
    cause to believe the vehicle contained contraband or evidence
    of a crime. See 
    id. In reaching
    this conclusion, the court relied on federal cases
    discussing the “automobile exception” to the warrant require-
    ment. The court pointed out that in Chambers v. Maroney, 
    399 U.S. 42
    , 52, 
    90 S. Ct. 1975
    , 
    26 L. Ed. 2d 419
    (1970), the U.S.
    Supreme Court first recognized:
    For constitutional purposes, we see no difference between
    on the one hand seizing and holding a car before present-
    ing the probable cause issue to a magistrate and on the
    other hand carrying out an immediate search without a
    warrant. Given probable cause to search, either course is
    reasonable under the Fourth Amendment.
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	505
    Cite as 
    21 Neb. Ct. App. 489
    Similarly, the Alarcon-Chavez court cited U.S. v. Brookins,
    
    345 F.3d 231
    (4th Cir. 2003), wherein the Fourth Circuit
    upheld the warrantless seizure of a vehicle from private prop-
    erty because the vehicle was readily movable, the officers had
    probable cause to search the vehicle at the time it was discov-
    ered, and the probable cause factor still existed at the time of
    the search.
    In Alarcon-Chavez, the Nebraska Supreme Court found that
    both elements to the automobile exception were present. First,
    the defendant’s vehicle was operational and therefore readily
    movable. In addition, probable cause supported an at-the-scene
    search, because officers knew that the victim had been severely
    injured with a knife, a knife was found in the victim’s apart-
    ment, and a set of knives with one knife missing was clearly
    visible in the defendant’s vehicle. Given probable cause to
    search the vehicle in the parking lot of the apartment, the court
    held that it was equally permissible for the officers to tow the
    vehicle and later obtain a warrant.
    Podrazo argues that Alarcon-Chavez does not control this
    case, but we disagree and find that both requisites are met in
    this case. Podrazo claims his Blazer was not movable, because
    police officers had the keys and the vehicle was parked and
    locked with the windows up. Under 
    Alarcon-Chavez, supra
    ,
    and 
    Brookins, supra
    , however, this is not the test for mobil-
    ity. In Brookins, the district court concluded that on the facts
    presented—the ease with which officers could have blocked
    the defendant’s automobile and the fact that the vehicle was
    unoccupied when discovered by the officers—a warrant was
    required to search and seize the vehicle because it was not
    “readily mobile.” On appeal, the Fourth Circuit disagreed,
    viewing ready mobility as defining the nature of the use of
    the vehicle, rather than its ability to be moved by a defendant
    upon stop or seizure. Thus, the Fourth Circuit in Brookins and
    the Nebraska Supreme Court in Alarcon-Chavez found that a
    vehicle is readily movable when it is operational. This factor
    is present here.
    Podrazo also argues that probable cause did not exist,
    because Podrazo made no statement, he was not arrested,
    officers did not see him commit a crime or with evidence
    Decisions of the Nebraska Court of Appeals
    506	21 NEBRASKA APPELLATE REPORTS
    of a crime, and there was no evidence found in plain view.
    But those are not the only factors pertinent to a probable
    cause inquiry.
    [11-13] Probable cause escapes precise definition or quanti-
    fication into percentages because it deals with probabilities and
    depends on the totality of the circumstances. State v. Smith,
    
    279 Neb. 918
    , 
    782 N.W.2d 913
    (2010). Probable cause is a
    flexible, commonsense standard. It merely requires that the
    facts available to the officer would warrant a person of reason-
    able caution in the belief that certain items may be contraband
    or stolen property or useful as evidence of a crime; it does
    not demand any showing that such a belief be correct or more
    likely true than false. 
    Id. We determine
    probable cause by an
    objective standard of reasonableness, given the known facts
    and circumstances. 
    Id. We conclude
    that probable cause existed in this case because,
    based on the facts available to police at the time, it was rea-
    sonable for them to believe the Blazer contained evidence
    of a crime. Love testified at the suppression hearing that on
    December 24, 2010, she knew the Blazer was registered to
    Podrazo and that witnesses who had been at the Maple Street
    residence the previous night told her that when they noticed
    Podrazo and A.T. were missing, they discovered the Blazer
    was missing as well. Additionally, Love knew that Podrazo
    had handwritten the note admitting that he and A.T. had had
    sexual contact in the Blazer on the previous night. Moreover,
    the nurse told Love of the extent and cause of A.T.’s injuries
    that had been discovered during the sexual assault examination.
    Based on this information, it was reasonable for police officers
    to believe the Blazer contained evidence of the possible sexual
    assault of A.T. Given probable cause to search the Blazer at
    Podrazo’s residence, it was equally permissible for officers to
    tow the vehicle and later obtain a warrant. We therefore con-
    clude that the district court did not err in overruling Podrazo’s
    motion to suppress.
    2. Evidence
    Podrazo argues the district court erred in refusing to allow
    him to introduce evidence of A.T.’s habits of blackouts,
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	507
    Cite as 
    21 Neb. Ct. App. 489
    previous sexual relations during blackout, habitual intoxication
    connected with sexual activity, and memory impairment as a
    result of chronic substance abuse. As the State points out, this
    assignment appears to address three separate motions made by
    Podrazo. We will address each individually.
    (a) Other Sexual Behavior
    [14,15] Podrazo alleges the district court erred in denying
    his request to offer evidence that at least once prior to the
    events in question, A.T. engaged in voluntary sexual activ-
    ity during an alcoholic blackout, and that she admitted dur-
    ing her deposition that she is “always” drunk or high when
    she engages in sexual relations. In all proceedings where the
    Nebraska Evidence Rules apply, admissibility of evidence
    is controlled by the Nebraska Evidence Rules, not judicial
    discretion, except in those instances under the rules when
    judicial discretion is a factor involved in determining admis-
    sibility. State v. Lessley, 
    257 Neb. 903
    , 
    601 N.W.2d 521
    (1999). Where, as here, the Nebraska Evidence Rules commit
    the evidentiary question at issue to the discretion of the trial
    court, the admissibility of evidence is reviewed for an abuse
    of discretion. 
    Id. Under Nebraska’s
    rape shield statute, evidence of a victim’s
    prior sexual behavior or sexual predisposition is not admissible
    except under the following limited circumstances in a crimi-
    nal case:
    (i) Evidence of specific instances of sexual behavior by
    the victim offered to prove that a person other than the
    accused was the source of semen, injury, or other physi-
    cal evidence;
    (ii) Evidence of specific instances of sexual behav-
    ior of the victim with respect to the accused offered by
    the accused to prove consent of the victim if it is first
    established to the court that such behavior is similar to
    the behavior involved in the case and tends to establish a
    pattern of behavior of the victim relevant to the issue of
    consent; and
    (iii) Evidence, the exclusion of which would violate the
    constitutional rights of the accused.
    Decisions of the Nebraska Court of Appeals
    508	21 NEBRASKA APPELLATE REPORTS
    Neb. Rev. Stat. § 27-412(2)(a) (Cum. Supp. 2012). Subsection
    (i) does not apply here, because there was no evidence or alle-
    gation that anyone other than Podrazo was the source of A.T.’s
    injuries. Similarly, subsection (ii) is not applicable, because
    there was no evidence of a prior sexual history between A.T.
    and Podrazo.
    [16] Podrazo argues that under § 27-412(2)(a)(iii) and
    the Nebraska Supreme Court’s decision in 
    Lessley, supra
    ,
    the exclusion of his proffered evidence violated his right to
    confrontation and to present a full defense under the Sixth
    Amendment to the U.S. Constitution. The Sixth Amendment
    provides that “‘[i]n all criminal prosecutions, the accused
    shall enjoy the right . . . to be confronted with the witnesses
    against him; [and] to have compulsory process for obtaining
    witnesses in his favor . . . .’” 
    Lessley, 257 Neb. at 908
    , 601
    N.W.2d at 526.
    In Lessley, the Supreme Court found that even though evi-
    dence was inadmissible under the rape shield law, it was admis-
    sible on constitutional grounds because of a defendant’s right
    to confront his accuser. In its direct examination of the victim,
    the State introduced evidence that she was a lesbian. The trial
    court refused to allow the defendant to introduce evidence to
    contradict the victim’s denial that she told a coworker that she
    engaged in anal intercourse with men. On appeal, the Nebraska
    Supreme Court ruled that the defendant’s Sixth Amendment
    right to confront his accuser on the dispositive issue of consent
    required that he be allowed to explore this matter, because the
    direct examination regarding the victim’s sexual preference
    and experience permitted the jury to draw an inference that as
    a lesbian, she would not consent to sexual relations with the
    defendant. Finding that the evidence the defendant wanted to
    offer would have made this critical inference less probable and
    that the State had opened the door to the victim’s sexual past,
    the Supreme Court reversed the trial court’s decision not to
    allow its admission.
    Lessley is distinguishable from the case at hand, because
    here, the State did not open the door by inquiring into A.T.’s
    sexual past. Any inference the jury could make that A.T. did
    not consent to sexual relations with Podrazo was based only on
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	509
    Cite as 
    21 Neb. Ct. App. 489
    A.T.’s testimony with respect to Podrazo himself. For example,
    A.T. testified that she had met Podrazo on only two prior
    occasions and that she did not even remember seeing him on
    December 23, 2010. The State did not adduce any testimony
    regarding A.T.’s prior sexual history, including whether she has
    previously engaged in sexual activity while under the influ-
    ence or during an alcoholic blackout. Accordingly, Podrazo’s
    right to confront A.T. was not impermissibly restricted, and
    we conclude that the district court did not abuse its discretion
    in refusing to allow Podrazo to introduce evidence of A.T.’s
    sexual history.
    (b) Prior Substance Abuse and
    Mental Health Issues
    [17,18] Podrazo alleges the district court erred in denying
    his request to offer evidence that A.T. had previously been
    diagnosed with mental health issues, substance abuse, and
    cognitive difficulties and had received treatment for these
    conditions. He argues this evidence was relevant to A.T.’s
    credibility and the issue of her consent. The exercise of judi-
    cial discretion is implicit in determinations of relevancy and
    prejudice, and a trial court’s decision regarding them will not
    be reversed absent an abuse of discretion. See State v. Aguilar-
    Moreno, 
    17 Neb. Ct. App. 623
    , 
    769 N.W.2d 784
    (2009). Relevant
    evidence means evidence having any tendency to make the
    existence of any fact that is of consequence to the determi-
    nation of the action more probable or less probable than it
    would be without the evidence. Neb. Rev. Stat. § 27-401
    (Reissue 2008).
    A.T. admitted in her deposition that she was convicted of
    minor in possession when she was in high school in 2009.
    As a result, she was required to attend a treatment program,
    which she completed in 2009. As for the mental health issues
    and cognitive difficulties Podrazo references, A.T. testified
    during her deposition that while attending treatment for her
    minor in possession conviction, she was told that her “learn-
    ing was off,” but she stated that this did not make sense to
    her because she graduated from high school early with more
    credits than necessary. A.T. was also diagnosed with slight
    Decisions of the Nebraska Court of Appeals
    510	21 NEBRASKA APPELLATE REPORTS
    anxiety and depression and was prescribed a low dose of an
    antidepressant, but she discontinued the medication in 2009
    or 2010.
    Podrazo admitted that the evidence he wanted to introduce
    occurred approximately 12 to 18 months prior to December
    2010, when A.T. was still in high school. Although he argues
    this evidence is relevant to A.T.’s credibility, A.T. testified at
    trial that she could not remember anything between the time
    she returned to the Maple Street residence and the time she
    woke up in the hospital. We therefore cannot say the district
    court abused its discretion in refusing to allow Podrazo to
    introduce evidence of events that took place more than a year
    prior to the incident here and had no bearing on the events of
    that night or A.T.’s ability to recall them.
    (c) Habit of Wandering
    and Intoxication
    Podrazo argues the district court erred in denying his request
    to introduce evidence of A.T.’s “habit” of drinking to the point
    of blacking out and wandering around while intoxicated and
    inappropriately dressed.
    Habit evidence is governed by § 27-406, which provides:
    (1) Evidence of the habit of a person or of the routine
    practice of an organization, whether corroborated or not
    and regardless of the presence of eyewitnesses, is relevant
    to prove that the conduct of the person or organization on
    a particular occasion was in conformity with the habit or
    routine practice.
    (2) Habit or routine practice may be proved by testi-
    mony in the form of an opinion or by specific instances of
    conduct sufficient in number to warrant a finding that the
    habit existed or that the practice was routine.
    [19] The exercise of judicial discretion is implicit in deter-
    minations of relevancy and admissibility under § 27-406, and
    as a result, the trial court’s decision will not be reversed absent
    an abuse of discretion. Hoffart v. Hodge, 
    9 Neb. Ct. App. 161
    , 
    609 N.W.2d 397
    (2000).
    [20,21] This court has previously noted that the “precise
    contours of how frequently and consistently a behavior must
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	511
    Cite as 
    21 Neb. Ct. App. 489
    occur to rise to the level of habit cannot be easily defined or
    formulated,” and thus concluded that admissibility depends on
    the trial judge’s evaluation of the particular facts of the case.
    
    Id. at 167,
    609 N.W.2d at 403. The Nebraska Supreme Court,
    however, has concluded that evidence of a single incident,
    even if it is true, is an insufficient showing of a “routine”
    or “habit.” See State v. Edwards, 
    278 Neb. 55
    , 
    767 N.W.2d 784
    (2009).
    In this case, Podrazo sought to establish that A.T. had a habit
    of wandering around during intoxication while inappropriately
    dressed, arguing this “habit” offered an alternative explana-
    tion for how she ended up in the position in which she was
    found near the Pratt Street residence. However, Podrazo was
    able to provide evidence of only one occasion on which A.T.
    performed this “habit.” There was no evidence that A.T. wan-
    dered away from the Maple Street residence on the night of
    December 23, 2010. The August 2011 incident alone is insuf-
    ficient to establish a habit, and therefore, the district court did
    not abuse its discretion in overruling Podrazo’s motion. This
    assignment of error is without merit.
    3. Access to Mental
    Health R ecords
    [22] Podrazo argues the district court erred in refusing
    to allow him discovery access to A.T.’s medical and mental
    health records pursuant to State v. Trammell, 
    231 Neb. 137
    ,
    
    435 N.W.2d 197
    (1989). A trial court has broad discretion in
    granting discovery requests and errs only when it abuses its
    discretion. State v. Vela, 
    279 Neb. 94
    , 
    777 N.W.2d 266
    (2010).
    At the outset, we note that the State claims this issue has
    not been properly preserved for appeal, because Podrazo did
    not renew his motion pursuant to 
    Trammell, supra
    , prior
    to A.T.’s testimony at trial. The State argues that because
    Podrazo requested access to A.T.’s medical records or, in the
    alternative, that the court prevent A.T. from testifying, the
    motion should be considered a motion in limine to exclude
    A.T.’s testimony.
    We disagree. In Trammell, the Nebraska Supreme Court
    held that in a situation where the defendant should be allowed
    Decisions of the Nebraska Court of Appeals
    512	21 NEBRASKA APPELLATE REPORTS
    to inquire into the witness’ current medical condition but
    the witness refuses to waive physician-patient privilege, the
    exclusion of the witness’ testimony is the remedy. Thus,
    the issue is whether the defendant should be permitted to
    inquire about the witness’ medical condition, not whether the
    witness’ testimony should be excluded. Notably, on appeal,
    Podrazo assigns and argues only that the court erred in refus-
    ing to allow him access to A.T.’s medical records, not that
    the court erred in allowing A.T. to testify. Accordingly, the
    motion that Podrazo is appealing is the discovery motion, not
    a motion in limine. We will therefore address the merits of
    this assignment.
    [23,24] Generally, confidential communications made by
    a patient to a physician or professional counselor for the
    purposes of diagnosis and treatment are privileged. See Neb.
    Rev. Stat. § 27-504 (Reissue 2008). In 
    Trammell, supra
    , the
    Nebraska Supreme Court recognized that a problem arises
    when attempting to accommodate the witness’ right to maintain
    the privilege and the defendant’s right to confront the witnesses
    against him. The court determined that the result is that the
    testimony of the witness is inadmissible. Before this remedy
    is available, however, the defendant must make a showing that
    the failure to produce the privileged information is likely to
    impair the defendant’s ability to effectively cross-examine the
    witness claiming the privilege. See 
    id. If the
    defendant suc-
    ceeds in making such a showing, the court “‘may then afford
    the state an opportunity to secure the consent of the witness
    for the court to conduct an in camera inspection of the claimed
    information and, if necessary, to turn over to the defendant
    any relevant material for the purposes of cross-examination.’”
    
    Id. at 143,
    435 N.W.2d 201
    . If the witness does not consent,
    “‘the court may be obliged to strike the testimony of the wit-
    ness.’” 
    Id. Following this
    procedure, the Supreme Court in Trammell
    found reversible error when the victim was allowed to testify
    without allowing the defendant to discover evidence concern-
    ing the victim’s current mental health treatment. The victim
    in that case was 40 years old at the time of trial. She had
    been receiving mental health care since she was 13 and had
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	513
    Cite as 
    21 Neb. Ct. App. 489
    been institutionalized on three occasions, the last admission
    being when she was 27 years old. Since her last institution-
    alization and including at the time of the assault, the vic-
    tim had been taking medication to control a psychosis. On
    appeal, the Supreme Court found that any inquiry into the
    victim’s hospitalization or treatment while she was confined
    was too remote in time to have any relevance to the matter
    at hand. The victim’s current treatment, however, was found
    to be relevant.
    In this case, the trial court refused to allow Podrazo discov-
    ery access to A.T.’s medical records based on a finding that he
    had failed to show that denial of access to the records would
    deny his right to confront the witness. We conclude this was
    not an abuse of discretion. Podrazo argues that had the court
    granted his discovery motion, he “would have been able to
    ascertain if there were even more instances of [A.T.’s] conduct
    that would bolster evidence of her habits and practice regard-
    ing intoxication and sexual activities” as described above.
    Brief for appellant at 32. State v. Trammell, 
    231 Neb. 137
    , 
    435 N.W.2d 197
    (1989), does not authorize a “fishing expedition,”
    however. See State v. Schreiner, 
    276 Neb. 393
    , 
    754 N.W.2d 742
    (2008).
    In addition, the victim-witness in 
    Trammell, supra
    , had a
    lengthy history of psychiatric problems and was taking medi-
    cation at the time of the sexual assault to control them. In the
    present case, Podrazo never claimed that A.T.’s ability to recall
    or recount the events of December 23, 2010, was in any way
    impaired due to a mental condition or psychotropic medica-
    tion, about which he was entitled to inquire. In fact, A.T.
    admitted she was unable to remember the events of December
    23 anyway, so any medical condition or treatment would
    have no bearing on her testimony surrounding the events that
    occurred that evening. Accordingly, this assignment of error
    is meritless.
    4. Expert Testimony
    [25-28] Podrazo alleges the district court erred in restricting
    the testimony of Dr. Corbett. The trial court acts as a gate-
    keeper to ensure the evidentiary relevance and reliability of an
    Decisions of the Nebraska Court of Appeals
    514	21 NEBRASKA APPELLATE REPORTS
    expert’s opinion. State v. Huff, 
    282 Neb. 78
    , 
    802 N.W.2d 77
    (2011). A trial court has broad discretion in determining how
    to perform its gatekeeper function. 
    Id. The standard
    for review-
    ing the admissibility of expert testimony is abuse of discre-
    tion. State v. Casillas, 
    279 Neb. 820
    , 
    782 N.W.2d 882
    (2010).
    An abuse of discretion occurs when a trial court’s decision is
    based upon reasons that are untenable or unreasonable or if
    its action is clearly against justice or conscience, reason, and
    evidence. 
    Id. Specifically, Podrazo
    claims Dr. Corbett should have been
    allowed to state his opinion regarding the effect of A.T.’s
    alcohol consumption on her executive functioning and deci-
    sionmaking and regarding when A.T.’s blackout ended on
    December 23 or 24, 2010. The trial court sustained the State’s
    objections to these opinions on the grounds of foundation
    and relevance. Through Dr. Corbett’s testimony, Podrazo was
    attempting to establish that despite A.T.’s high blood alcohol
    content on the morning of December 24, because she was an
    experienced drinker with a high tolerance for alcohol, her deci-
    sionmaking was not nearly as affected as that of someone with
    a lower tolerance. This could then lead the jury to infer that
    A.T. still could have formed the capacity to consent to sexual
    activity with Podrazo.
    Dr. Corbett explained that in general, people can develop a
    tolerance to alcohol and become less impacted by its effects.
    With respect to A.T.’s tolerance, however, the court granted
    the State’s objection to Dr. Corbett’s testifying that he read
    in A.T.’s deposition that she admitted she has a very high
    tolerance for alcohol. The court noted for the jury that any
    evidence relating to A.T.’s drinking was limited to the day of
    the incident. Thus, there was no admissible evidence regarding
    A.T.’s history of drinking and corresponding high tolerance
    upon which Dr. Corbett could base his opinion as to whether
    alcohol affected A.T.’s decisionmaking on December 23, 2010.
    Because Dr. Corbett did not demonstrate that he had any sci-
    entific way of determining whether A.T.’s decisionmaking was
    affected solely based on the data he reviewed and the admissi-
    ble evidence, we cannot conclude that the district court abused
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	515
    Cite as 
    21 Neb. Ct. App. 489
    its discretion in finding there was insufficient foundation for
    this opinion.
    Similarly, it was not an abuse of discretion for the district
    court to refuse to allow Dr. Corbett to opine as to when A.T.’s
    blackout ended. Dr. Corbett explained that most total black-
    outs end when a person has gone through a sleep cycle and
    wakes up. Based on A.T.’s deposition, Dr. Corbett knew that
    her blackout began shortly after she returned to the Maple
    Street residence after eating dinner. He also knew, based on
    the police reports, that she was found unconscious in the street
    shortly before midnight. Dr. Corbett testified that the uncon-
    scious condition in which A.T. was discovered was consistent
    with the “pass-out” that comes after a blackout. He admitted,
    however, that he was unable to determine when A.T.’s period
    of unconsciousness began. Based on this testimony, the trial
    court properly sustained the State’s foundational objection to
    Dr. Corbett’s opinion as to when A.T.’s blackout ended, and we
    reject this assignment of error.
    5. Jury Instruction
    [29,30] Podrazo claims the district court erred in refusing
    his proffered jury instruction. Podrazo requested that the jury
    be instructed on the defense of intoxication. This instruc-
    tion provides:
    There has been evidence that the defendant was intoxi-
    cated at the time that the (here insert crime) with which
    (he, she) is charged was committed.
    Intoxication is a defense only when a person’s mental
    abilities were so far overcome by the use of (alcohol,
    drugs) that (he, she) could not have had the required
    intent. You may consider evidence of (alcohol, drug) use
    along with all the other evidence in deciding whether the
    defendant had the required intent.
    NJI2d Crim. 8.0. Whether a jury instruction is correct is a
    question of law, regarding which an appellate court is obli-
    gated to reach a conclusion independent of the determination
    reached by the trial court. State v. Smith, 
    282 Neb. 720
    , 
    806 N.W.2d 383
    (2011). A trial court is not obligated to instruct
    Decisions of the Nebraska Court of Appeals
    516	21 NEBRASKA APPELLATE REPORTS
    the jury on matters which are not supported by evidence in the
    record. 
    Id. Podrazo argues
    the circumstantial evidence establishes that
    he was intoxicated on the night of December 23, 2010. He
    directs the court’s attention to witness testimony that he was
    part of the group that night, drinking alcohol and using drugs,
    and to his handwritten note confirming that he and A.T. had
    been drinking, that things “got a little crazy,” and that “it was
    pretty rough.”
    According to our review of the record, all of the witnesses
    who testified at trial remembered seeing Podrazo at the Maple
    Street residence on the night of December 23, 2010, but none
    were able to describe his condition. The only evidence about
    Podrazo’s drinking came from Smith, who testified that he
    saw Podrazo “take some shots,” and from Podrazo’s note in
    which he confirmed that he had been drinking. While this evi-
    dence may support Podrazo’s claim that he was drinking, it is
    insufficient to establish that he was intoxicated to the extent
    that his mental abilities were overcome by the use of alcohol
    or drugs.
    [31] To establish reversible error from a court’s refusal to
    give a requested instruction, an appellant has the burden to
    show that (1) the tendered instruction is a correct statement
    of the law, (2) the tendered instruction is warranted by the
    evidence, and (3) the appellant was prejudiced by the court’s
    refusal to give the tendered instruction. State v. Wisinski, 
    268 Neb. 778
    , 
    688 N.W.2d 586
    (2004). Because the record does
    not establish that the tendered instruction was warranted by the
    evidence, the district court did not err in refusing to instruct the
    jury on the defense of intoxication.
    6. Exhibits in Support of
    Motion for New Trial
    Podrazo alleges the district court erred in refusing to admit
    into evidence exhibits 91 and 93 through 100, offered in sup-
    port of his motion for new trial. At the outset, we note that the
    State argues we should decline to address this issue because
    it is not necessary to adjudicate the controversy before us.
    The State claims that the exhibits were offered in support of
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	517
    Cite as 
    21 Neb. Ct. App. 489
    Podrazo’s argument that he was entitled to a new trial based
    on the fact that three jurors did not disclose certain information
    during voir dire, but, the State argues, Podrazo did not assign
    or argue that ground for a new trial on appeal.
    We agree that Podrazo does not argue on appeal that he was
    entitled to a new trial based on nondisclosure of information
    by certain jurors. He does, however, argue that he is entitled to
    a new trial because he was denied pretrial access to basic juror
    information and that, had he received even just the names
    of potential jurors prior to trial, he could have discovered
    the information they failed to provide during voir dire. For
    this reason, we find it necessary to address this assignment
    of error.
    At the hearing on his motion for new trial, Podrazo offered
    numerous exhibits. On appeal, he challenges the court’s refusal
    to receive nine exhibits into evidence. He argues that because
    the exhibits were properly authenticated, the court should have
    received them. The ground on which the court sustained the
    State’s objections, however, was relevance, not foundation.
    Therefore, we will address whether the district court erred in
    concluding these exhibits lacked relevance.
    The record reveals that two of those exhibits (exhibits 93
    and 100) were actually received without objection. The remain-
    ing exhibits include an affidavit of a senior certified law clerk
    regurgitating what occurred during voir dire, and court records
    regarding petitions for protection orders, protection orders, or
    criminal complaints involving three of the jurors.
    The proffered affidavit is from a senior certified law clerk
    who assisted Podrazo’s counsel during trial. In his affidavit,
    the law clerk describes matters he heard take place during voir
    dire, such as questions posed to the potential jurors and their
    responses or lack of responses. The court admitted portions
    of the affidavit into evidence, but excluded other portions as
    hearsay or irrelevant.
    [32,33] In State v. Lafler, 
    225 Neb. 362
    , 
    405 N.W.2d 576
    (1987), abrogated on other grounds, State v. Oldfield, 
    236 Neb. 433
    , 
    461 N.W.2d 554
    (1990), the Nebraska Supreme
    Court concluded that errors predicated on occurrences dur-
    ing the course of voir dire examination cannot be shown by
    Decisions of the Nebraska Court of Appeals
    518	21 NEBRASKA APPELLATE REPORTS
    affidavit. The court stated that it “will not undertake to resolve
    disputes about what is claimed to have happened, when a
    record of the voir dire examination could have been made.”
    
    Id. at 375,
    405 N.W.2d at 585. The court, therefore, found no
    abuse of discretion when the trial court denied the defendant’s
    request to present testimony regarding the voir dire examina-
    tion of the jury.
    Likewise here, Podrazo could have requested that a record
    of the voir dire examination be made, but he did not. He
    attempted, through the law clerk’s affidavit, to recreate the
    record, but this is not permissible. The district court allowed
    portions of the affidavit into evidence, but refused other por-
    tions as inadmissible hearsay. The excluded portions attempted
    to re-create what occurred during voir dire, and the trial court
    did not abuse its discretion in refusing to receive those portions
    of the exhibit into evidence.
    Similarly, we cannot find the district court abused its dis-
    cretion in sustaining the objections to the court records on the
    basis of relevancy. At the hearing on the motion for new trial,
    Podrazo offered these exhibits in support of his argument that
    three jurors had failed to disclose during voir dire information
    regarding their involvement in domestic violence situations.
    Because we conclude that the voir dire examination not con-
    ducted on the record cannot be re-created through affidavit,
    these exhibits lack relevance to the matter before the district
    court. Without a record establishing what occurred during voir
    dire, any evidence attempting to show that certain jurors failed
    to disclose information is not relevant. Therefore, this assign-
    ment of error is without merit.
    7. Motions for Mistrial
    or New Trial
    [34,35] Podrazo argues the district court erred in overruling
    his motions for mistrial and new trial on three bases. We will
    address each separately. We will not disturb a trial court’s deci-
    sion whether to grant a motion for mistrial unless the court has
    abused its discretion. State v. Thorpe, 
    280 Neb. 11
    , 
    783 N.W.2d 749
    (2010). Likewise, a motion for new trial is addressed to the
    discretion of the trial court, and unless an abuse of discretion
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	519
    Cite as 
    21 Neb. Ct. App. 489
    is shown, the trial court’s determination will not be disturbed.
    State v. Scott, 
    284 Neb. 703
    , 
    824 N.W.2d 668
    (2012).
    (a) Juror Information
    Podrazo claims he was entitled to a new trial because he
    was denied pretrial access to prospective juror questionnaires
    and basic information. In an attempt to obtain this information
    prior to trial, counsel contacted the office of the clerk of the
    district court and the jury commission office directly. Counsel
    admitted that she never moved the court for an order grant-
    ing her access to juror information, and she did not present
    this issue to the district court until her motion for new trial.
    Accordingly, we cannot find the district court abused its dis-
    cretion in refusing to grant Podrazo’s motion for new trial on
    an issue that was not presented timely to the district court for
    consideration. See State v. Caddy, 
    262 Neb. 38
    , 
    628 N.W.2d 251
    (2001).
    (b) Jury Misconduct
    Podrazo argues that the trial court erred when it overruled
    his motions for mistrial and new trial based on improper com-
    munications between a juror and an employee of the county
    attorney’s office. One of the members of the jury was a former
    courthouse employee. At a recess during the second day of
    trial, the juror recognized an employee of the Douglas County
    Attorney’s office, who was working as a victim advocate for
    the trial. The two shared a hug and engaged in a brief conver-
    sation concerning their families and personal lives but did not
    discuss the trial.
    The morning of the fourth day of trial, Podrazo moved for
    a mistrial based on jury misconduct. Counsel explained the
    delay, stating that she did not become aware of the contact
    until after the third day of trial. The court initially stated that
    it was going to grant the mistrial based upon information of
    the contact’s occurring in the midst of other jurors and the
    victim witness advocate being present. The State requested
    that the court poll the jurors to determine whether any of
    them had, in fact, observed the contact, because counsel
    for the State indicated that no other jurors were present at
    Decisions of the Nebraska Court of Appeals
    520	21 NEBRASKA APPELLATE REPORTS
    the time of contact. Podrazo resisted that request. The court
    declined the State’s request, stating that polling the jurors
    would reinforce the issue, which would create a larger prob-
    lem. The court ultimately concluded that it would not grant
    a mistrial, based upon the court’s impression of the jury as
    being conscientious of its duties. The court based its impres-
    sion on a situation that occurred earlier in the trial in which a
    juror provided the court with a note alerting it to the fact that
    another juror was texting during testimony. The court con-
    cluded that this indicated the jury was aware of its duties and
    obligations. Based upon the admonitions to the jurors and the
    absence of any report from the jurors regarding the contact,
    the court denied the motion.
    The court conducted a followup hearing on the motion for
    mistrial, at which time it questioned the county employee
    who had juror contact. Podrazo’s counsel conducted cross-­
    examination and elicited testimony from Podrazo’s mother,
    who also observed the contact. The evidence revealed that the
    employee and the juror had contact in the rotunda area while
    A.T. and her mother were seated in the hallway outside the
    courtroom. After clarifying this information, the court restated
    its decision to deny the motion for mistrial.
    At the hearing on the motion for new trial, the State
    offered an affidavit from the juror, wherein she admitted to
    the encounter but stated that she “did not further consider or
    think about this contact during any portion of the remainder of
    the trial or deliberations.” The court overruled the motion for
    new trial.
    [36-38] A criminal defendant claiming jury misconduct bears
    the burden of proving, by a preponderance of the evidence, (1)
    the existence of jury misconduct and (2) that such misconduct
    was prejudicial to the extent that the defendant was denied a
    fair trial. State v. Thorpe, 
    280 Neb. 11
    , 
    783 N.W.2d 749
    (2010).
    When the misconduct involves a juror and a nonjuror, it gives
    rise to a rebuttable presumption of prejudice to the defendant
    which the State has the burden to overcome. See 
    id. We review
    the trial court’s determinations of witness credibility and his-
    torical fact for clear error; we review de novo the trial court’s
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	521
    Cite as 
    21 Neb. Ct. App. 489
    ultimate determination whether the defendant was prejudiced
    by juror misconduct. 
    Id. The Nebraska
    Supreme Court in Thorpe found the trial
    court had correctly denied the defendant’s motion for mistrial
    based on alleged juror misconduct, even though the record
    clearly showed improper communication between a juror and
    a witness. The court concluded that the State had overcome
    the presumption of prejudice to the defendant, because the
    communication was unrelated to any issue before the jury,
    the communication was to one juror only who did not share
    that communication with the other jury members, and the juror
    indicated that the communication would not affect his ability
    to remain impartial.
    Similarly, in the case at hand, the record shows improper
    communication between a juror and a nonjuror. Therefore, a
    rebuttable presumption of prejudice to Podrazo arose, which
    presumption the State had the burden to overcome. We con-
    clude the State overcame its burden to prove that Podrazo was
    not denied a fair trial, and therefore, the district court correctly
    denied Podrazo’s motions for mistrial and new trial.
    Under our de novo review, we find the conversation between
    the juror and employee was not related to any of the issues at
    trial, and the juror later testified by affidavit that she did not
    further consider this contact during the trial or deliberations.
    We further find that although the jurors could have observed
    A.T. and the employee together at various times during trial,
    they were not together when the embrace occurred. A.T. was
    in the hallway outside of the courtroom, and the employee
    and juror were in the rotunda. Therefore, even if other jurors
    observed the embrace, it did not occur in the presence of A.T.
    Based upon the testimony elicited, we find that the State over-
    came the presumption of prejudice. As such, this argument is
    without merit.
    (c) Prosecutorial Misconduct
    [39,40] Based on the conversation between the county
    employee and the juror, Podrazo also alleges he was entitled to
    a mistrial or new trial on the basis of prosecutorial misconduct.
    When a prosecutor’s conduct was improper, an appellate court
    Decisions of the Nebraska Court of Appeals
    522	21 NEBRASKA APPELLATE REPORTS
    considers the following factors in determining whether the
    conduct prejudiced the defendant’s right to a fair trial: (1) the
    degree to which the prosecutor’s conduct or remarks tended to
    mislead or unduly influence the jury, (2) whether the conduct
    or remarks were extensive or isolated, (3) whether defense
    counsel invited the remarks, (4) whether the court provided a
    curative instruction, and (5) the strength of the evidence sup-
    porting the conviction. State v. Watson, 
    285 Neb. 497
    , 
    827 N.W.2d 507
    (2013). Whether prosecutorial misconduct is prej-
    udicial depends largely on the context of the trial as a whole.
    
    Id. Before it
    is necessary to grant a mistrial for prosecutorial
    misconduct, the defendant must show that a substantial miscar-
    riage of justice has actually occurred. 
    Id. Assuming, without
    deciding, that the county employee’s
    conduct was improper and could be considered prosecuto-
    rial misconduct, we conclude Podrazo has not shown that a
    substantial miscarriage of justice actually occurred or that he
    was prevented from having a fair trial. As stated above, the
    contact between the juror and the county employee was brief
    and they did not discuss the trial. The evidence is conflicting
    as to whether any of the other jurors actually witnessed the
    interaction, although it appears as though other jurors were in
    the area. It is undisputed, however, that A.T. was not present
    during the interaction. The juror involved in the interaction
    testified by affidavit that she did not further think about or
    consider the conversation during the remainder of the trial or
    deliberations. The evidence of A.T.’s injuries, her DNA found
    in Podrazo’s Blazer, and his admission that they had had sexual
    contact on the night of December 23, 2010, supported the con-
    victions. The district court did not abuse its discretion when it
    denied Podrazo’s motions for mistrial and new trial.
    8. Excessive Sentences
    Podrazo alleges the court imposed excessive sentences. He
    acknowledges that it is difficult to “‘color-match’” cases when
    reviewing sentences, but argues that his sentences “are impos-
    sibly out of step with sentences of imprisonment imposed in
    other first-degree sexual assault cases.” Brief for appellant
    at 42-43.
    Decisions   of the  Nebraska Court of Appeals
    STATE v. PODRAZO	523
    Cite as 
    21 Neb. Ct. App. 489
    Podrazo was convicted of first degree sexual assault, a
    Class II felony, and attempted first degree assault, a Class III
    felony. Neb. Rev. Stat. § 28-319 (Reissue 2008); Neb. Rev. Stat.
    § 28-308 (Cum. Supp. 2012); Neb. Rev. Stat. § 28-201(4)(b)
    (Cum. Supp. 2010). Class II felonies are punishable by 1 to 50
    years’ imprisonment, and Class III felonies are punishable by 1
    to 20 years’ imprisonment. Neb. Rev. Stat. § 28-105 (Reissue
    2008). Podrazo was sentenced to 40 to 50 years’ imprison-
    ment on count I and a consecutive sentence of 10 to 16 years’
    imprisonment on count II. Thus, his sentences are within the
    statutory guidelines.
    [41] Sentences within statutory limits will be disturbed by
    an appellate court only if the sentences complained of were an
    abuse of judicial discretion. See State v. Bauldwin, 
    283 Neb. 678
    , 
    811 N.W.2d 267
    (2012). 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 jus-
    tice or conscience, reason, and evidence. 
    Id. When imposing
    a sentence, a sentencing judge should con-
    sider 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. 
    Id. In imposing
    a sentence, the sentencing court is not
    limited to any mathematically applied set of factors. 
    Id. 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 circum-
    stances surrounding the defendant’s life. 
    Id. The information
    contained in the presentence report indi-
    cates that Podrazo was 21 years old at the time of sentencing
    and led a relatively law-abiding life other than these charges.
    Other than traffic offenses, his criminal history includes a
    criminal mischief conviction and two driving under the influ-
    ence convictions. During the pendency of this case, Podrazo
    attended an inpatient treatment facility for alcohol dependency.
    Podrazo graduated from high school, attended some college,
    and worked several construction jobs. The presentence report
    Decisions of the Nebraska Court of Appeals
    524	21 NEBRASKA APPELLATE REPORTS
    contained eight letters of support for Podrazo from family
    and friends.
    More important in this case, of the factors for consider-
    ation, are the nature of the offense and the amount of violence
    involved in the crime. The injuries Podrazo inflicted on A.T.,
    who was only 19 years old at the time of the assault, are
    described above and were characterized by medical person-
    nel as “[s]evere.” A.T. testified that when she woke up in the
    hospital, she had pain everywhere, including in her vagina and
    anus. When she was released from the hospital on Christmas
    Day, she was still experiencing pain and had to use her hands
    to move her legs to get out of bed. She was sent home from
    the hospital with icepacks, wipes for her vaginal area to
    help with the pain, and pain medication. A letter written by
    A.T. and included in the presentence report describes the
    significant emotional, mental, and physical impact Podrazo’s
    actions had on her life. Because the sentences are supported
    by competent evidence and within the statutory guidelines, we
    conclude the district court did not abuse its discretion in the
    sentences imposed.
    V. CONCLUSION
    For the foregoing reasons, we find no merit to Podrazo’s
    assigned errors. We therefore affirm his convictions and
    sentences.
    Affirmed.
    State of Nebraska, appellee, v.
    Mathew W. Workman, appellant.
    ___ N.W.2d ___
    Filed December 10, 2013.     No. A-12-888.
    1.	 Due Process. The determination of whether the procedures afforded an individual
    comport with the constitutional requirements for procedural due process presents
    a question of law.
    2.	 Probation and Parole: Due Process. The minimal due process to which a
    parolee or probationer is entitled also applies to participants in the drug court
    program. This minimal due process includes (1) written notice of the time and
    place of the hearing; (2) disclosure of evidence; (3) a neutral factfinding body