State v. Montoya ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/16/2021 08:07 AM CDT
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Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
STATE v. MONTOYA
Cite as 29 Neb. App. 563State of Nebraska, appellee, v. Lorenzo
R. Montoya, appellant.
___ N.W.2d ___
Filed March 9, 2021. No. A-20-029.
1. 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 histori-
cal 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.
2. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.
When a motion to suppress is denied pretrial and again during trial on
renewed objection, an appellate court considers all the evidence, both
from the trial and from the hearings on the motion to suppress.
3. Trial: Investigative Stops: Warrantless Searches: Appeal and Error.
The ultimate determinations of reasonable suspicion to conduct an
investigatory stop and probable cause to perform a warrantless search
are reviewed de novo, and findings of fact are reviewed for clear error,
giving due weight to the inferences drawn from those facts by the
trial judge.
4. 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.
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Cite as 29 Neb. App. 5635. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
6. Sentences: Probation and Parole: Appeal and Error. It is within the
discretion of the trial court whether to impose probation or incarcera-
tion, and an appellate court will uphold the court’s decision denying pro-
bation absent an abuse of discretion.
7. Constitutional Law: Search and Seizure: Search Warrants: Probable
Cause. The Fourth Amendment to the U.S. Constitution prohibits unrea-
sonable searches and seizures. The Nebraska Constitution provides a
similar protection. The execution of a search warrant without probable
cause is unreasonable and violates constitutional guarantees.
8. Constitutional Law: Warrantless Searches. An exception to the
Fourth Amendment’s warrant requirement is the community care­
taking exception.
9. Constitutional Law: Police Officers and Sheriffs: Motor Vehicles.
The community caretaking exception to the Fourth Amendment provides
that local police officers, unlike federal officers, frequently investi-
gate vehicle accidents in which there is no claim of criminal liability
and engage in what, for want of a better term, may be described as
community caretaking functions, totally divorced from the detection,
investigation, or acquisition of evidence relating to the violation of a
criminal statute.
10. Constitutional Law: Police Officers and Sheriffs: Investigative
Stops: Search and Seizure. In order to determine whether the com-
munity caretaking exception to the Fourth Amendment applies, the court
should assess the totality of the circumstances surrounding the stop,
including all of the objective observations and considerations, as well
as the suspicion drawn by a trained and experienced police officer by
inference and deduction. If, based on the totality of the circumstances,
the seizing officer had a reasonable basis to believe his assistance was
necessary, the stop is not unconstitutional.
11. Constitutional Law: Search and Seizure. A search or seizure under
the community caretaking exception to the Fourth Amendment, like any
other search or seizure, is subject to the standard test of reasonableness.
It must be justified at its inception, based on specific articulable facts
which reasonably warrant the intrusion into the individual’s liberty, and
it must be reasonably related in scope to the circumstances which justi-
fied the interference in the first place.
12. Criminal Law: Police Officers and Sheriffs: Drunk Driving:
Controlled Substances: Blood, Breath, and Urine Tests. The mate-
rial elements of the crime of refusal are (1) the defendant was arrested
for an offense arising out of acts alleged to have been committed while
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STATE v. MONTOYA
Cite as 29 Neb. App. 563he or she was driving or in actual physical control of a motor vehicle
while under the influence of alcoholic liquor or drugs; (2) a peace offi-
cer had reasonable grounds to believe the defendant was driving or in
actual physical control of a motor vehicle in this state while under the
influence of alcohol or drugs; (3) the peace officer required the defend­
ant to submit to a chemical test of his or her blood, breath, or urine to
determine the concentration of alcohol or the presence of drugs; (4) the
defendant was advised that his or her failure to submit to a chemical test
of his or her blood, breath, or urine is a separate offense for which he
or she could be charged; and (5) the defendant refused to submit to a
chemical test as required by the peace officer.
13. Sentences. When imposing a sentence, the sentencing court is to con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal 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. The sentencing court is not
limited to any mathematically applied set of factors.
14. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and
Matthew Meyerle for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Bishop, Arterburn, and Welch, Judges.
Welch, Judge.
INTRODUCTION
Lorenzo R. Montoya appeals his jury conviction of refusal
to submit to a chemical test with two prior convictions, a Class
IIIA felony, and the conviction by the district court of refusal
to submit to a preliminary breath test (PBT), a Class V mis­
demeanor. For the reasons stated herein, we affirm.
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STATE v. MONTOYA
Cite as 29 Neb. App. 563STATEMENT OF FACTS
In August 2018, two Lancaster County deputy sheriffs,
Daniel Sarnes and Samuel Bachman, received a dispatch
around 2:37 a.m. regarding a male slumped over the steering
wheel of a vehicle. Deputy Sarnes was the first law enforce-
ment officer at the scene and was informed by medical person-
nel that they believed the driver, identified as Montoya, was
intoxicated. Deputy Sarnes, who was concerned Montoya was
not fit to drive, initiated contact with Montoya, who was still
in his vehicle. Deputy Sarnes asked Montoya for his driver’s
license, his vehicle registration, and his proof of insurance
documents; Montoya did not have his driver’s license in his
possession and had difficulty retrieving his other documents.
A short time later, Montoya refused Deputy Bachman’s request
that Montoya take a PBT. Montoya was arrested for driving
under the influence of alcohol and was later charged with
count I, refusal to submit to a chemical test with two prior
convictions; count II, third-offense driving under the influence;
and count III, refusal to submit to a PBT.
Prior to trial, Montoya filed a motion to suppress evidence
related to the initial stop of his vehicle and the evidence seized
as a result of the stop. The aforementioned facts were adduced
at this hearing along with testimony from Deputies Sarnes
and Bachman.
Deputy Sarnes testified that the nature of the dispatch call
concerned a vehicle parked on the road with a male slumped
over the steering wheel, with no indication of his conscious-
ness level. When Deputy Sarnes arrived at the scene, medical
personnel, who interacted with Montoya, informed Deputy
Sarnes that they believed Montoya was intoxicated. Because
Deputy Sarnes was concerned that Montoya was unable to
drive, he approached Montoya and asked for his documents,
which Montoya produced, after some difficulty, except for
his driver’s license. Deputy Sarnes observed that Montoya’s
vehicle was parked on the road within 2 feet of the grassy edge
of the gravel road.
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STATE v. MONTOYA
Cite as 29 Neb. App. 563Deputy Bachman recalled that around 2:37 a.m., a dispatch
call went out, and that the nature of the call was that a man was
slumped over the steering wheel of the vehicle. When Deputy
Bachman arrived on the scene at approximately 2:52 a.m.,
he saw Deputy Sarnes interacting with Montoya, so Deputy
Bachman approached the vehicle from the passenger side. He
observed one unopened “bottle of Fireball . . . the size of a
shooter” in the center console of the vehicle. Deputy Bachman
also noticed that Montoya had bloodshot, watery eyes, and he
smelled alcohol emanating from Montoya. After making these
observations, Deputy Bachman asked Montoya to complete the
horizontal gaze nystagmus test, the nine-step ­walk-and-turn
test, and the one-legged stand test. Deputy Bachman testified
that Montoya exhibited a level of impairment on all the tests,
which suggested he was under the influence of alcohol. Based
on Montoya’s field sobriety test results, Deputy Bachman
requested that Montoya take a PBT, but Montoya refused.
Deputy Bachman testified that he believed Montoya was unable
to operate a motor vehicle because he was under the influence
of alcohol as demonstrated by his appearance and field sobriety
test results. Deputy Bachman also testified Montoya’s vehicle
was stopped on the road but was not pulled off to the side of
the road.
After the hearing, the court concluded that notwithstanding
Montoya’s argument that the deputies did not have reasonable
cause or articulable suspicion to stop or detain him, they did
have a duty and a right to investigate someone stopped on
the roadside in a manner similar to Montoya and that after
contacting Montoya, their determination he had been drinking
led to their investigation of him. In furtherance of this find-
ing, the district court noted it had watched the video showing
the arrest of Montoya by the deputies and noted the loca-
tion where Montoya’s vehicle was parked on the road. The
court ultimately denied Montoya’s motion to suppress in its
entirety.
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STATE v. MONTOYA
Cite as 29 Neb. App. 563Motions in Limine/Demand
for Jury Trial
Prior to trial, Montoya filed motions in limine to limit the
testimony of Deputies Sarnes and Bachman regarding the con-
tent of dispatch’s call about Montoya’s being slumped over his
steering wheel and portions of the video showing law enforce-
ment’s discussion thereof with Montoya. Montoya argued this
evidence should be limited because neither deputy had per-
sonal knowledge that Montoya was slumped over his steering
wheel and these statements constituted hearsay. The district
court denied the motions, explaining the dispatch call provided
information which the State could use to build its case.
Montoya filed a demand for a jury trial on count III, refusal
to submit to a PBT, which motion was denied by the district
court. The court explained that because there is no possibility
of a jail sentence on count III, the count should be treated like
an infraction, and that Montoya was not entitled to a jury trial
on that count.
Trial
In October 2019, a jury trial was held regarding count I,
refusal to submit to a chemical test with two prior convic-
tions, and count II, third-offense driving under the influence.
Testimony was elicited from Deputies Sarnes and Bachman.
Deputy Sarnes’ testimony was consistent with his testi-
mony provided during the suppression hearing and set forth
above. He further explained that Montoya wore wristbands, the
kind commonly given out to bar patrons who are at least 21
years old; that Montoya told law enforcement he left Lincoln,
Nebraska, to return to his home in Crete, Nebraska, and
decided to take the gravel road to “see the surroundings”; and
that Montoya rejected the PBT by saying no and waving his
hand at the PBT device. The State also offered the video of the
stop of Montoya’s vehicle, which was received by the district
court over Montoya’s objection in the form of a renewal of his
motion in limine.
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STATE v. MONTOYA
Cite as 29 Neb. App. 563Deputy Bachman also testified in a manner consistent with
his testimony during the suppression hearing. When Deputy
Bachman testified regarding the dispatch call, Montoya inter-
posed hearsay and confrontation objections, thereby renewing
his motion in limine, which the district court ultimately over-
ruled. Deputy Bachman testified regarding the events leading
to Montoya’s arrest and explained that after Montoya refused
the PBT, law enforcement arrested him on suspicion of driving
under the influence.
Deputy Bachman explained that following Montoya’s arrest,
he asked Montoya to submit to a “DataMaster” breath test and
explained that refusing this test would constitute a separate
charge. Subsequent to this explanation, Montoya refused to
submit to a breath test.
Verdicts and Sentencing
The jury found Montoya guilty of count I, refusal to submit
to a chemical test, but not guilty of count II, driving under the
influence. The court found Montoya guilty of count III, refusal
to submit to a PBT. At an enhancement hearing, the court
determined count I was Montoya’s third offense and sentenced
Montoya to 30 months’ imprisonment followed by 12 months
of postrelease supervision and revoked Montoya’s operator’s
license for 15 years. The court ordered Montoya to pay a $100
fine for his conviction on count III.
ASSIGNMENTS OF ERROR
Montoya’s assignments of error, consolidated and restated,
are that (1) the district court erred in denying his motion to
suppress, (2) the district court erred in denying his demand
for a jury trial on the misdemeanor charge, (3) the district
court erred in denying his motion in limine and permitting
the testimony at trial, (4) the evidence was insufficient to sup-
port his convictions, and (5) the sentence imposed on count I
was excessive.
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STATE v. MONTOYA
Cite as 29 Neb. App. 563STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion to sup-
press 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 trig-
ger or violate Fourth Amendment protections is a question of
law that an appellate court reviews independently of the trial
court’s determination. State v. Shiffermiller, 302 Neb. 245, 922
N.W.2d 763 (2019).
[2] When a motion to suppress is denied pretrial and again
during trial on renewed objection, an appellate court considers
all the evidence, both from the trial and from the hearings on
the motion to suppress. Id.[3] The ultimate determinations of reasonable suspicion to
conduct an investigatory stop and probable cause to perform a
warrantless search are reviewed de novo, and findings of fact
are reviewed for clear error, giving due weight to the infer-
ences drawn from those facts by the trial judge. Id.[4] 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. Smith, 302 Neb. 154,
922 N.W.2d 444 (2019). 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.[5,6] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747(2020). It is within the discretion of the trial court whether
to impose probation or incarceration, and an appellate court
will uphold the court’s decision denying probation absent an
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STATE v. MONTOYA
Cite as 29 Neb. App. 563abuse of discretion. State v. Wills, 285 Neb. 260, 826 N.W.2d
581 (2013).
ANALYSIS
Denial of Motion to Suppress
Montoya first contends that the district court erred in deny-
ing his motion to suppress his detention, arrest, and the evi-
dence seized therefrom because the deputies lacked reasonable
suspicion or probable cause to stop and ultimately arrest him.
[7] The Fourth Amendment to the U.S. Constitution prohibits
unreasonable searches and seizures. See State v. Hidalgo, 296
Neb. 912, 896 N.W.2d 148 (2017). The Nebraska Constitution
provides a similar protection. State v. Hidalgo, supra. The
execution of a search warrant without probable cause is unrea-
sonable and violates constitutional guarantees. Id.[8-11] An exception to the Fourth Amendment’s warrant
requirement is the community caretaking exception. State v.
Shiffermiller, supra. The community caretaking exception pro-
vides that
“‘[l]ocal police officers, unlike federal officers, frequently
investigate vehicle accidents in which there is no claim of
criminal liability and engage in what, for want of a better
term, may be described as community caretaking func-
tions, totally divorced from the detection, investigation,
or acquisition of evidence relating to the violation of a
criminal statute.’”
State v. Shiffermiller, 302 Neb. 245, 258, 922 N.W.2d 763,
775 (2019). The Nebraska Supreme Court has outlined how to
apply the community caretaking exception, stating:
[T]he court should assess the totality of the circum-
stances surrounding the stop, including all of the objec-
tive observations and considerations, as well as the sus-
picion drawn by a trained and experienced police officer
by inference and deduction. If, based on the totality of
the circumstances, the seizing officer had a reasonable
basis to believe his assistance was necessary, the stop is
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Cite as 29 Neb. App. 563not unconstitutional. Thus, a search or seizure under the
community caretaking exception, like any other search or
seizure, is subject to the standard test of reasonableness.
It must be justified at its inception, based on specific
articulable facts which reasonably warrant the intrusion
into the individual’s liberty, and it must be reasonably
related in scope to the circumstances which justified the
interference in the first place.
Id. at 259, 922 N.W.2d at 776.
The district court overruled Montoya’s motion to suppress,
finding that the community caretaking exception justified the
deputies’ stop and subsequent investigation of Montoya. While
recognizing the community caretaking exception can provide
the basis to stop and investigate a motorist without a warrant,
Montoya argues the exception did not apply here
because no evidence was adduced to show the reliabil-
ity of the initial reported information. Although officers
were dispatched to a report that a male in the vehicle
was slumped over, Deputy Sarnes testified that he did
not take the names of any of the medical personnel at the
scene, did not speak with the initial reporting party, and
that at the time he arrived on the scene that [Montoya]
was awake.
Brief for appellant at 18. Montoya’s argument is misplaced.
Law enforcement has the right to stop and investigate a
motorist under the community caretaking exception when the
specific articulable facts warrant the intrusion of an indi-
vidual’s liberty and then the intrusion reasonably relates to the
scope of circumstances which justified the interference. Here,
a citizen informant’s tip, followed by the deputies’ discovery
of the vehicle positioned as described by the informant with
medical personnel on the scene, justified responding to the
vehicle to determine whether the motorist was in need of care.
Stated differently, the report made through dispatch, taken
together with what the deputies found at the scene, presented
sufficient indicia of reliability to provide the deputies, based
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Cite as 29 Neb. App. 563upon the totality of the circumstances, with a reasonable basis
to believe their assistance was necessary and warranted the
initial interference. Contrary to Montoya’s assertion, the depu-
ties were not required to first interrogate the citizen informant
before rendering potential assistance to the motorist whom the
informant advised may be in need of assistance. Accordingly,
the stop of Montoya was not unconstitutional and the district
court did not err in denying Montoya’s motion to suppress.
This assigned error fails.
Demand for Jury Trial
Second, Montoya contends the district court erred in deny-
ing his demand for a jury trial on count III, refusal to submit to
a PBT. See Neb. Rev. Stat. § 60-6,197.04 (Reissue 2010). We
note that the State concedes this argument in its brief.
On October 18, 2019, the State filed a motion to amend the
information, and later that day, Montoya filed a demand for a
jury trial under Neb. Rev. Stat. § 25-2705 (Reissue 2016). The
State filed the amended information on October 21, including
the count of refusal to submit to a PBT under § 60-6,197.04.
Montoya argues he had a right to file a demand for a jury trial
pursuant to § 25-2705. For clarity, Montoya is not arguing that
he had a constitutional right to a jury trial. Instead, he argues
that § 25-2705 provides him with a statutory right to a jury trial
for the allegations in count III and that the district court erred
in refusing to grant him a jury trial on that charge.
Montoya argues that although § 25-2705 applies to county
court, the statutory language in § 25-2705(2) suggests it applies
to charges of this nature in district court as well.
Section 25-2705 provides as follows:
(1) Either party to any case in county court, except
criminal cases arising under city or village ordinances,
traffic infractions, other infractions, and any matter aris-
ing under the Nebraska Probate Code or the Nebraska
Uniform Trust Code, may demand a trial by jury. In civil
cases, the demand shall be in writing and shall be filed
with the court:
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Cite as 29 Neb. App. 563(a) By a plaintiff on the date the complaint is filed with
the court;
(b) By a defendant on or before the date the answer is
filed with the court;
(c) By a counterclaimant on the date the counterclaim
is filed with the court;
(d) By a counterclaim defendant on or before the date
the reply to the counterclaim is filed with the court;
(e) By a third-party plaintiff on the date the third-party
complaint is filed with the court;
(f) By a third-party defendant on or before the date
the answer to the third-party complaint is filed with
the court;
(g) By a cross-claimant on the date the cross-claim is
filed with the court; and
(h) By a cross-claim defendant on or before the date
the answer to the cross-claim is filed with the court.
(2) All provisions of law relating to juries in the district
courts shall apply to juries in the county courts, and the
district court jury list shall be used, except that juries in
the county courts shall consist of six persons.
Contrary to Montoya’s assertion, § 25-2705(2) provides that
laws relating to juries in district courts apply to juries in county
courts, not that the provisions of § 25-2705 should apply to dis-
trict courts. The clear and unambiguous language of § 25-2705
provides that if a party is entitled to a jury trial in county court
under § 25-2705, then the statutes that govern juries in district
court shall apply to county court juries as well. This does not
mean that a party charged in district court is likewise afforded
the rights set forth in § 25-2705.
Montoya next argues that because under Neb. Rev. Stat.
§ 24-517(6) (Cum. Supp. 2020), the county court has concur-
rent original jurisdiction with the district court in any crimi-
nal matter classified as a misdemeanor, that provision should
somehow bootstrap the application of this county court right to
district court. Section 24-517(6) provides: “Concurrent original
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Cite as 29 Neb. App. 563jurisdiction with the district court in any criminal matter clas-
sified as a misdemeanor or for any infraction. The district
court shall have concurrent original jurisdiction in any criminal
matter classified as a misdemeanor that arises from the same
incident as a charged felony.” Although § 24-517(6) did pro-
vide the district court with jurisdiction over this criminal mat-
ter, we fail to see how that likewise incorporates the right to a
jury trial that extends only by statute to county court, and our
research has not revealed any such application. Because the
clear language of § 25-2705 would have provided Montoya a
right to a jury trial for a charge of this nature only in county
court and this matter was charged in district court, this assign-
ment of error fails.
Motion in Limine
Third, Montoya argues the court erred in allowing Deputies
Sarnes and Bachman to testify that Montoya was slumped over
the steering wheel of his vehicle, because they did not show
they had personal knowledge of this fact. Montoya explains
that under Neb. Rev. Stat. § 27-602 (Reissue 2016), a wit-
ness may testify only to matters of which he or she has per-
sonal knowledge.
Before discussing the issue of whether the deputies had per-
sonal knowledge to testify that Montoya was slumped over the
wheel of the vehicle, we note that this issue was first addressed
in Montoya’s motions in limine. The district court denied his
motions in limine regarding evidence adduced from Deputies
Sarnes and Bachman, including the contents of the initial dis-
patch call that the driver of the vehicle was “slumped over at
the wheel.” At trial, Montoya properly renewed his motions,
which the district court denied.
Montoya argues that the district court erred in permitting
Deputies Sarnes and Bachman to testify that Montoya was
slumped over the steering wheel, “because no evidence was
presented and the State heard from no witnesses who corrobo-
rated the information.” Brief for appellant at 21. The basis of
Montoya’s argument is that the deputies’ testimony violated
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Cite as 29 Neb. App. 563§ 27-602, which provides: “A witness may not testify to a mat-
ter unless evidence is introduced sufficient to support a find-
ing that he has personal knowledge of the matter. Evidence to
prove personal knowledge may, but need not, consist of the
testimony of the witness himself.”
Although § 27-602 does require a witness to have personal
knowledge of a matter to which he or she testified, it does
not apply in the context posed by Montoya here. Contrary to
Montoya’s assertion, neither deputy testified that Montoya
was slumped over the steering wheel. During Deputy Sarnes’
testimony, the State asked, “What was the nature of this dis-
patch call?” to which he replied, “I was dispatched to a red
SUV parked on the side of the road with one male slumped
over.” Later, during redirect, Deputy Sarnes agreed that he was
dispatched to check on a male slumped over a steering wheel.
Similarly, during Deputy Bachman’s testimony, the State
asked, “What was the nature of the dispatch that you received
at 2:37 a.m. on August 26th of 2018?” to which he replied, “It
was for a male parked on the roadway that was slumped over
the steering wheel of the vehicle.” Both deputies’ testimony
clearly states that the deputies were testifying to the nature of
the dispatch call. Thus, both deputies demonstrated they had
personal knowledge of the nature of dispatch’s call, and this
testimony complies with the requirement in § 27-602. And, as
we noted in the previous section of this opinion, that testimony
was relevant, as it provided notice to the deputies, which trig-
gered the community caretaking response. Accordingly, this
error fails.
Sufficiency of Evidence
[12] Montoya next contends that there was insufficient
evidence to sustain his convictions for refusal to submit to a
chemical test under Neb. Rev. Stat. § 60-6,197 (Cum. Supp.
2020) and refusal to submit to a PBT under § 60-6,197.04.
The elements of § 60-6,197 are
(1) the defendant was arrested for an offense arising out
of acts alleged to have been committed while he or she
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Cite as 29 Neb. App. 563was driving or in actual physical control of a motor vehi-
cle while under the influence of alcoholic liquor or drugs;
(2) a peace officer had reasonable grounds to believe the
defendant was driving or in actual physical control of
a motor vehicle in this state while under the influence
of alcohol or drugs; (3) the peace officer required the
defendant to submit to a chemical test of his or her blood,
breath, or urine to determine the concentration of alcohol
or the presence of drugs; (4) the defendant was advised
that his or her failure to submit to a chemical test of his
or her blood, breath, or urine is a separate offense for
which he or she could be charged; and (5) the defendant
refused to submit to a chemical test as required by the
peace officer.
State v. Rothenberger, 294 Neb. 810, 828, 885 N.W.2d 23,
36 (2016). Refusing to submit to a PBT is governed by
§ 60-6,197.04, which provides that
any person who operates or has in his or her actual
physical control a motor vehicle in this state [may be
required] to submit to a [PBT] for alcohol concentra-
tion if the officer has reasonable grounds to believe that
such person has alcohol in his or her body, has commit-
ted a moving traffic violation, or has been involved in
a traffic accident. Any person who refuses to submit to
such [PBT] or whose [PBT] results indicate an alcohol
concentration in violation of section 60-6,196 shall be
placed under arrest.
Of the five elements needed to establish the crime of refusal
to submit to a chemical test, Montoya contends the State
failed to establish one of those elements, specifically that
law enforcement officers had reasonable grounds to believe
Montoya was driving or in actual physical control of a motor
vehicle while under the influence of alcohol at the time of
his arrest. Regarding his conviction for refusing to submit to
a PBT, Montoya argues that there was insufficient evidence
to establish he was operating or in the actual physical control
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ties’ belief that he had been consuming alcohol.
It is well established that 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 elements of
the crime beyond a reasonable doubt. State v. Stack, 307 Neb.
773, 950 N.W.2d 611 (2020); State v. Martinez, 306 Neb. 516,
946 N.W.2d 445 (2020).
Montoya alleges that there was insufficient evidence to
establish the element under § 60-6,197 that the deputies “had
reasonable grounds to believe [Montoya] was driving or in
actual physical control of a motor vehicle . . . while under the
influence of alcohol,” see State v. Rothenberger, 294 Neb. at
828, 885 N.W.2d at 36, and the element under § 60-6,197.04
that Montoya was “operat[ing] or [had] in his . . . actual physi-
cal control a motor vehicle [and] the [deputies had] reason-
able grounds to believe that [Montoya had] alcohol in his . . .
body.” The deputies testified that Montoya informed them he
was in his vehicle because he had been traveling from Lincoln
to Crete; that they detected the odor of alcohol coming from
Montoya; and that Montoya wore wristbands commonly given
out to bar patrons, had an unopened alcohol container in
the vehicle, and admitted to law enforcement he was found
“passed out” behind the wheel of his vehicle. Montoya per-
formed poorly on the field sobriety tests. Further, both depu-
ties testified that Montoya was in his vehicle alone when they
arrived on the scene. Deputy Bachman testified that when he
arrived on the scene, he observed Deputy Sarnes speaking
with a male inside the vehicle. Deputy Bachman approached
the vehicle and observed an unopened “bottle of Fireball” in
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eyes were bloodshot, and he testified that Montoya smelled
of alcohol.
Based upon this evidence, there was sufficient evidence
to support Montoya’s convictions for refusal to submit to a
chemical test and refusal to submit to a PBT. Accordingly, this
assigned error fails.
Excessive Sentence
Montoya’s last assigned error is that the district court erred
in imposing an excessive sentence by not tailoring the sentence
on count I to fit Montoya. He asserts that the sentence of 30
months’ imprisonment is greater than what is necessary for
the protection of the public, the gravity of the offense, and
Montoya’s rehabilitative needs.
Montoya was convicted of a Class IIIA felony. He was sen-
tenced to 30 months’ imprisonment with 6 days’ credit for time
served and had his license revoked for 15 years. Montoya’s
sentence is within the statutory sentencing range for Class IIIA
felonies, which are punishable by 0 to 3 years’ imprisonment
followed by 9 to 18 months’ postrelease supervision if impris-
onment is imposed, a $10,000 fine, or both. See Neb. Rev. Stat.
§ 28-105 (Reissue 2016).
[13,14] An appellate court will not disturb a sentence
imposed within the statutory limits absent an abuse of discre-
tion by the trial court. State v. Manjikian, 303 Neb. 100, 927
N.W.2d 48 (2019). Regarding criminal sentences, the Nebraska
Supreme Court has explained:
When imposing a sentence, the sentencing court is
to consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural back-
ground, (5) past criminal 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 vio-
lence involved in the commission of the crime. However,
the sentencing court is not limited to any mathemati-
cally applied set of factors. The appropriateness of a
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the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances
surrounding the defendant’s life.
Id. at 114-15, 927 N.W.2d at 60-61.
Montoya’s presentence investigation report shows he has
a criminal record, which includes convictions including driv-
ing under suspension, third-offense driving under the influ-
ence, and multiple convictions for possession of a controlled
substance.
During the sentencing hearing, the district court considered
relevant factors in imposing Montoya’s sentence and was not
limited to a mathematical set of factors. At the sentencing
hearing, the district court noted it had reviewed Montoya’s
presentence investigation report and considered the facts that
many people are killed by drunk drivers each year and that he
was convicted of refusing to take a chemical test with two prior
convictions, which is a significant felony. Based on the factors
considered by the court on the record before pronouncing the
sentence, we cannot say the court abused its discretion in ren-
dering the sentence here. This assignment fails.
CONCLUSION
For the reasons previously outlined, we affirm Montoya’s
convictions and sentence.
Affirmed.