State v. Montoya , 305 Neb. 581 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/10/2020 08:08 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
STATE v. MONTOYA
Cite as 305 Neb. 581
State of Nebraska, appellee, v.
Lorenzo Montoya, appellant.
___ N.W.2d ___
Filed April 17, 2020. No. S-19-660.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. ____: ____: ____. When deciding appeals from criminal convictions in
county court, an appellate court applies the same standards of review
that it applies to decide appeals from criminal convictions in dis-
trict court.
3. 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
protection is a question of law that an appellate court reviews indepen-
dently of the trial court’s determination.
4. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the rules make
discretion a factor in determining admissibility.
5. Judges: Evidence: Appeal and Error. An appellate court reviews for
abuse of discretion a trial court’s evidentiary rulings on the sufficiency
of a party’s foundation for admitting evidence.
6. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
under the residual hearsay exception, an appellate court reviews for
clear error the factual findings underpinning a trial court’s hearsay rul-
ing and reviews de novo the court’s ultimate determination to admit
evidence over a hearsay objection.
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STATE v. MONTOYA
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7. Constitutional Law: Witnesses: Appeal and Error. An appellate
court reviews de novo a trial court’s determination of the protections
afforded by the Confrontation Clause of the Sixth Amendment to the
U.S. Constitution and article I, § 11, of the Nebraska Constitution and
reviews the underlying factual determinations for clear error.
8. 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.
9. Search and Seizure: Evidence: Trial. Evidence obtained as the fruit
of an illegal search or seizure is inadmissible in a state prosecution and
must be excluded.
10. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
Investigative Stops: Search and Seizure: Words and Phrases. The
investigatory stop is limited to brief, nonintrusive detention during a
frisk for weapons or preliminary questioning; it is considered a “seizure”
sufficient to invoke Fourth Amendment safeguards, but because of its
less intrusive character requires only that the stopping officer have spe-
cific and articulable facts sufficient to give rise to reasonable suspicion
that a person has committed or is committing a crime.
11. Constitutional Law: Criminal Law: Police Officers and Sheriffs:
Arrests: Search and Seizure: Probable Cause. Arrests are character-
ized by highly intrusive or lengthy search or detention, and the Fourth
Amendment requires that an arrest be justified by probable cause to
believe that a person has committed or is committing a crime.
12. Probable Cause: Words and Phrases. Reasonable suspicion entails
some minimal level of objective justification for detention, something
more than an inchoate and unparticularized hunch, but less than the level
of suspicion required for probable cause.
13. Investigative Stops: Police Officers and Sheriffs: Probable Cause.
Whether a police officer has a reasonable suspicion based on sufficient
articulable facts depends on the totality of the circumstances and must
be determined on a case-by-case basis.
14. 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 trial and from the hearings on the motion to suppress.
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STATE v. MONTOYA
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15. Investigative Stops: Motor Vehicles. The witnessing of a driving viola-
tion, however minor, is sufficient to support a stop.
16. Investigative Stops: Motor Vehicles: Police Officers and Sheriffs:
Probable Cause. Reasonable proof of the accuracy of the radar equip-
ment indicating to the law enforcement officer that the defendant was
speeding need not be demonstrated in order to support reasonable suspi-
cion for a stop of the vehicle for speeding.
17. ____: ____: ____: ____. The appropriate inquiry for an investiga-
tory stop for speeding is whether a reasonable police officer had a
minimal level of objective justification for the belief that speeding had
occurred.
18. 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 previous motion to suppress, waives the objection, and a
party will not be heard to complain of the alleged error on appeal.
19. Blood, Breath, and Urine Tests: Drunk Driving: Evidence: Proof.
The four foundational elements which the State must establish by rea-
sonable proof as foundation for the admissibility of a breath test in a
driving under the influence prosecution are as follows: (1) that the test-
ing device was working properly at the time of the testing, (2) that the
person administering the test was qualified and held a valid permit, (3)
that the test was properly conducted under the methods stated by the
Department of Health and Human Services, and (4) that all other statutes
were satisfied.
20. Administrative Law: Blood, Breath, and Urine Tests: Records:
Proof. Where the records of the maintenance of a machine are relied
on to prove that the machine was properly maintained for purposes
of providing foundation for breath test results, the records admitted
at trial must show by satisfactory evidence that the inspections com-
plied with all requirements of title 177, chapter 1, of the Nebraska
Administrative Code.
21. Administrative Law: Appeal and Error. The construction of the regu-
lations is a matter of law in connection with which an appellate court
has an obligation to reach an independent determination regardless of
the ruling of the court below.
22. Administrative Law. For purposes of construction, a rule or regulation
of an administrative agency is generally treated like a statute.
23. Statutes: Appeal and Error. An appellate court will not resort to
interpretation to ascertain the meaning of statutory words that are plain,
direct, and unambiguous.
24. Statutes: Legislature: Intent. A collection of statutes pertaining to a
single subject matter are in pari materia and should be conjunctively
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STATE v. MONTOYA
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considered and construed to determine the intent of the Legislature, so
that different provisions are consistent, harmonious, and sensible.
25. Statutes. It is impermissible to follow a literal reading that engenders
absurd consequences where there is an alternative interpretation that
reasonably effects a statute’s purpose.
26. Administrative Law: Blood, Breath, and Urine Tests: Proof.
Amended certificates of analysis to correct clerical errors provide sat-
isfactory evidence that the inspections of an approved breath testing
device complied with the requirements of title 177 of the Nebraska
Administrative Code.
27. Constitutional Law: Hearsay. Only testimonial statements cause the
declarant to be a witness within the meaning of the Confrontation
Clause.
28. Rules of Evidence. Unless the regularly conducted activity of a busi-
ness is the production of evidence for use at trial, business records are
not testimonial.
29. Constitutional Law: Hearsay: Blood, Breath, and Urine Tests.
Neither original simulator solution certifications relating to maintenance
of breath testing devices nor amended certifications are testimonial for
purposes of the Confrontation Clause, because the simulator solution
certifications are prepared in a routine manner without regard to any
particular defendant.
30. Sentences: Appeal and Error. Absent an abuse of discretion by the trial
court, an appellate court will not disturb a sentence imposed within the
statutory limits.
31. ____: ____. Where a sentence imposed within the statutory limits is
alleged on appeal to be excessive, the appellate court must determine
whether a sentencing court abused its discretion in considering and
applying the relevant factors as well as any applicable legal principles
in determining the sentence to be imposed.
32. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
33. Sentences. In determining a sentence to be imposed, relevant factors
customarily considered and applied are the defendant’s (1) age, (2) men-
tality, (3) education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense and (8) the
amount of violence involved in the commission of the crime.
34. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
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STATE v. MONTOYA
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demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
35. Sentences: Rules of Evidence. The sentencing phase is separate and
apart from the trial phase, and the traditional rules of evidence may be
relaxed following conviction so that the sentencing authority can receive
all information pertinent to the imposition of sentence.
36. Sentences: Evidence. A sentencing court has broad discretion as to
the source and type of evidence and information which may be used
in determining the kind and extent of the punishment to be imposed,
and evidence may be presented as to any matter that the court deems
relevant to the sentence.
37. Sentences. It is permissible for a sentencing court to consider the infor-
mation that a defendant has been charged with but not yet tried for alleg-
edly illegal acts committed after the offense for which the defendant is
being sentenced.
38. Drunk Driving. Whether or not there are passengers in a vehicle, driv-
ing under the influence presents a serious threat to public safety.
39. Sentences: Appeal and Error. It is not the function of an appellate
court to conduct a de novo review of the record to determine whether a
sentence is appropriate.
Appeal from the District Court for Lancaster County,
Andrew R. Jacobsen, Judge, on appeal thereto from the
County Court for Lancaster County, Thomas E. Zimmerman,
Judge. Judgment of District Court affirmed.
Joe Nigro, Lancaster County Public Defender, and Sarah J.
Safarik, for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
The defendant appeals his conviction and sentence for driv-
ing under the influence, which were affirmed on intermedi-
ate appeal to the district court. The defendant argues that the
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STATE v. MONTOYA
Cite as 305 Neb. 581
county court should have granted his motions to suppress
challenging his stop for lack of reasonable suspicion, his arrest
for lack of probable cause, and the results of the test of his
breath alcohol content because the machine used was not at the
time of its calibration accompanied by a certificate of analysis
of the wet bath solutions containing the name of the person
who actually tested the solutions as required by the rules and
regulations of Nebraska’s Department of Health and Human
Services. Amended certificates of analysis were later obtained,
which listed the correct name of the person who tested the
solutions. The defendant also asserts that the evidence was
insufficient to support his conviction and that his sentence
was excessive.
BACKGROUND
Lorenzo Montoya was charged in the county court for
Lancaster County with one count of operating a motor vehicle
while under the influence, in violation of Neb. Rev. Stat.
§ 60-6,196 (Reissue 2010), by operating or being in actual
physical control of a motor vehicle while under the influence
of alcoholic liquor or of any drug or when he had “a concen-
tration of eight-hundredths of one gram or more by weight
of alcohol per two hundred ten liters of his or her breath,”
on or about March 12, 2017. Montoya was also charged with
having one or more prior convictions under Neb. Rev. Stat.
§ 60-6,197.02 (Cum. Supp. 2018), having committed one prior
offense in November 2008 and another in April 2008.
Stop and Arrest
At trial, Trooper Michael Thorson of the Nebraska State
Patrol testified that he first observed Montoya’s vehicle on
March 12, 2017, at approximately 1:50 a.m., traveling in front
of him going the same direction. Montoya’s vehicle appeared
to be traveling faster than the 35-mile-per-hour speed limit.
Thorson also observed the vehicle cross over the center line.
According to Thorson, the road was curved, but the weather
and road conditions were normal.
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STATE v. MONTOYA
Cite as 305 Neb. 581
Thorson waited until the vehicle was at a good location for
radar detection and used his radar to detect the vehicle’s speed.
Thorson testified that he is trained at estimating speeds and is
certified in the operation of radar devices. Thorson testified
that, as required, he had checked his radar at the beginning
of his shift on March 12, 2017, with tuning forks to ensure it
was working properly. The radar displayed that the vehicle was
traveling at 50 miles per hour.
Thorson initiated a traffic stop. Montoya was the driver
of the vehicle. There were passengers in the front passenger
seat and in the back. When Thorson approached the stopped
vehicle, he immediately detected a distinct odor of alcoholic
beverage. He noticed that Montoya’s eyes were bloodshot and
glossy, which Thorson explained was “typical for someone
who’s been drinking.”
Thorson asked Montoya to sit in the passenger seat of the
police cruiser, where Thorson administered a horizontal gaze
nystagmus test. Thorson testified that it is his usual practice to
conduct this test inside his police cruiser in order to eliminate
outside distractions such as lights. Thorson described that he
and Montoya faced each other during the test. Thorson testified
that Montoya demonstrated six out of six of the possible clues
the test looks for. According to Thorson, observation of four
out of the six impairment clues indicates a high probability
that the individual “is under the influence of alcohol at a .10 or
above.” Observing more clues indicates that the individual has
an even higher breath alcohol concentration.
Thorson also conducted the walk-and-turn test on Montoya.
Thorson testified that Montoya exhibited two out of two of
the standardized clues for intoxication during the instructional
phase of the test and five out of eight of the clues during the
walking phase of the test. According to Thorson, demonstrating
only two out of these eight clues is considered failing the test.
After conducting the horizontal gaze nystagmus and the
walk-and-turn tests, Thorson asked Montoya if he wished to
participate in the one-legged stand test. Montoya declined.
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305 Nebraska Reports
STATE v. MONTOYA
Cite as 305 Neb. 581
Montoya had initially reported to Thorson during the stop
that he had consumed only one “tall boy.” Montoya later
reported during the stop that, between 11:30 p.m. and 1:45
a.m., he had consumed three “tall boys,” each containing 24 to
32 ounces of beer.
Thorson arrested Montoya and took him to a nearby facility
where Montoya’s breath alcohol content could be tested by a
DataMaster machine. The DataMaster tests a sample of a per-
son’s breath with an infrared detector to determine a person’s
breath alcohol content. The test was conducted approximately
1 hour after Montoya’s last reported drink. Thorson followed
the appropriate checklist to ensure proper operation of the test.
The test showed that Montoya had a concentration of .134 of a
gram of alcohol per 210 liters of breath.
Thorson testified that he is trained in driving under the influ-
ence investigation and certified in performing a DataMaster
test. He has 12 years of experience in which he has conducted
approximately 3,000 driving under the influence investiga-
tions. Thorson opined that Montoya was under the influence
of alcohol when he operated his motor vehicle on March
12, 2017.
DataMaster
Officer Grant Powell testified at trial that he is the DataMaster
maintenance supervisor for Lancaster County. He conducted
the inspections and calibration check of the DataMaster that
tested Montoya’s breath sample.
The purpose of calibration verification is to ensure that the
DataMaster machine is accurately reading the alcohol content
of breath samples. Rules and regulations of the Department
of Health and Human Services, which appear in title 177 of
the Nebraska Administrative Code, require that calibration
must occur within 40 days prior to the subject sample. Powell
described that the process utilized by Lancaster County law
enforcement and approved under title 177 involves two tests
with wet bath water and alcohol mixtures, one containing a tar-
get value of .080 and the other of .150. The solutions produce
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STATE v. MONTOYA
Cite as 305 Neb. 581
a vapor at the target values when heated to the approximate
temperature of exhaled breath.
The wet bath simulator solutions used by Lancaster County
law enforcement are provided by a company in North Carolina,
RepCo Marketing (RepCo). When shipped, the simulator solu-
tions are accompanied by certificates of analysis which con-
tain information required by the regulations, including the
name of the person who prepared, tested, and supplied the
solution.
Powell conducted an inspection of the DataMaster subse-
quently used to test Montoya’s breath alcohol content within
the required 40-day period. The digital display, operational
lights, operational condition, and printer all passed their
required testing. Powell testified that the DataMaster machine
used to test Montoya’s breath sample was calibrated within
the required 40-day period and that it passed both the internal
check and the wet bath solution check. Powell signed a certifi-
cation so reflecting.
Powell elaborated that the DataMaster in question was cali-
brated using simulator solutions from lots 16801 and 16104,
which were accompanied by certificates of analysis from
RepCo certifying that the solutions were accurate for their
target values. The certificates of analysis originally accompa-
nying the simulator solutions stated that a RepCo employee,
Alma Palmer, had prepared, tested, and supplied the simulator
solutions contained in those lots. On April 19, 2018, Powell
became aware that the person who had tested the solutions in
lots 16801 and 16104 was not the person whose name appeared
on the certificates of analysis. On May 7, RepCo sent amended
certificates of analysis for those lots stating that a RepCo
employee, Colby Hale, not Palmer, was the person who had
prepared, tested, and supplied the simulator solutions. The
amended certificates were created to put the person’s name on
them who had actually tested those solutions. Nothing else in
the amended certificates was different from the original certifi-
cates of analysis.
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STATE v. MONTOYA
Cite as 305 Neb. 581
Powell testified that he had no concerns about the accu-
racy of the target values for the simulator solutions in lots
16801 and 16104 or about whether the solutions were work-
ing correctly when he conducted the relevant calibration of
the DataMaster used to conduct the test on Montoya’s breath
sample. Powell noted that the solutions were tested not just at
RepCo, but also by a separate company. Further, the solutions
were run through four different DataMaster machines, each
with their own unique internal reference standards, and the
solutions did not test outside of the 5-percent margin of error
on any of the four machines.
Powell noted that the “test card” for Montoya’s breath
sample showed a normal breath flow rate, a successful blank
test and internal standard check, two analyses of the breath
sample without any noted errors, and then another successful
blank test. Powell testified that in his professional opinion the
DataMaster utilized to test Montoya’s breath alcohol content
was in proper working order on the date of the test, March
12, 2017.
Motion to Suppress Evidence Obtained
as Result of Stop
Before trial, on October 31, 2017, Montoya had moved to
suppress all fruits of the stop of his vehicle that was allegedly
without reasonable suspicion or probable cause, in violation
of the 4th and 14th Amendments to the U.S. Constitution,
article 1, section 7, of the Nebraska Constitution; and Nebraska
statutes.
Thorson’s testimony at the pretrial hearing on the motion
largely mirrored that given at trial. He testified in more detail
regarding his training in the operation of the radar and how
the radar in his police cruiser works. He described the annual,
more sophisticated calibration test of his radar.
Thorson testified at the pretrial hearing that Montoya’s
vehicle was 300 to 500 feet ahead of him when he first saw
it. Thorson was traveling the speed limit and saw the vehicle
getting further and further away from him. There were no
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STATE v. MONTOYA
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other vehicles in the area. Thorson testified that it was his
usual practice to visualize the speed of a vehicle before taking
a Doppler reading and to put that in his report. Thorson noted
that “[f]or whatever reason,” he did not include his visual
estimation of Montoya’s speed in his report, and that there-
fore, “I’m not going to sit up here and speculate as to what
my visual estimation was at the time.” Thorson testified that a
“good Doppler tone” is a consistent high-pitched noise, which
indicates that there are no outside influences such as obstacles
or bad weather interfering with the device’s readings. There
was a good Doppler tone when he took the radar reading of
Montoya’s vehicle.
The court overruled the pretrial motion to suppress. At the
beginning of trial, Montoya asked for a standing objection
based on an alleged lack of reasonable suspicion for the stop,
which the court granted. Also, during Thorson’s testimony
at trial, Montoya renewed his objection to any admission of
evidence derived from the stop. The trial court overruled the
renewed objections.
Motion to Suppress Evidence Obtained
as Result of Arrest
Montoya had also moved before trial to suppress all evidence
resulting from his warrantless arrest, because law enforce-
ment lacked probable cause and, therefore, the arrest violated
Montoya’s rights under the 4th and 14th Amendments to the
U.S. Constitution; article 1, § 7, of the Nebraska Constitution;
and Nebraska statutes.
At the pretrial hearing on the motion, Thorson did not dis-
pute defense counsel’s assertion that the National Highway
Traffic Safety Administration training manual specifies that
the horizontal gaze nystagmus test shall be conducted while
the subject is standing. Thorson testified, however, that dur-
ing his training course he was told it would not negatively
impact the validity of the test if the subject was seated rather
than standing.
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STATE v. MONTOYA
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Thorson further testified at the pretrial hearing that after
Montoya failed the horizontal gaze nystagmus test and the
walk-and-turn test, he had Montoya sit in his vehicle for a
15-minute observation period before administering a prelimi-
nary breath test. Thorson checked Montoya’s mouth both at
the beginning and at the conclusion of the observation period.
At the conclusion of the observation period, Thorson asked
Montoya if he had regurgitated any stomach fluid, belched,
eaten anything, or put anything into his mouth while Thorson
was not looking. Montoya responded that he had burped.
Thorson asked Montoya if he had regurgitated “any type of
stomach fluid whatsoever” when he burped, and Montoya
answered that he had not. Thorson then administered the pre-
liminary breach test, which showed a breath alcohol content
of .176.
Thorson explained that it is not part of the mandatory pro-
tocol for the observation period to ask whether the subject has
regurgitated stomach fluid or belched. Thorson explained that
it was his understanding based on consultations with others in
law enforcement that burping without regurgitating stomach
fluid does not affect the test. Thorson agreed with defense
counsel, however, that it could impact the test if the subject
burped up something that was not solid like vomit or regurgita-
tion, and which contained alcohol. Thorson testified that if the
subject in any way indicates that something may have come
up out of the subject’s stomach, then he restarts the observa-
tion time.
Defense counsel argued that the results of the horizontal
gaze nystagmus test could not support probable cause because
Montoya was not standing during the test. Further, recorded
conversation in the video, wherein Thorson asked Montoya to
“[t]ry to straighten your head out,” indicated there were issues
with Montoya’s being positioned correctly for the test. Defense
counsel also argued that the preliminary breath test could not
create probable cause because Montoya had burped. Though
Montoya had indicated upon Thorson’s questioning that he had
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STATE v. MONTOYA
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not “regurgitated in his mouth,” Montoya had elaborated that
he would have let it out and not swallowed it, had he done so.
According to defense counsel, this exchange did not eliminate
the possibility that something had come up into Montoya’s
mouth that could have impacted the test. According to defense
counsel, without the results of the preliminary breath test and
the horizontal gaze nystagmus test, the remaining indicia of
impairment observed by Thorson would be insufficient to
establish probable cause.
The court overruled the pretrial motion to suppress. At trial,
Montoya did not renew the motion to suppress the fruits of the
arrest for an alleged lack of probable cause.
Motion to Suppress Datamaster Results
for Lack of Foundation
In a separate motion, Montoya had also moved before trial
to suppress the results of the DataMaster breath test for the rea-
son that the test was administered without proper compliance
with Neb. Rev. Stat. §§ 27-104 and 29-822 (Reissue 2016)
and 60-6,201 (Reissue 2010), as well as title 177. The pretrial
motion specifically challenged the DataMaster results on the
ground that the 40-day check of the DataMaster was conducted
without valid certificates of analysis for either lot 16801 or lot
16104, because the certificates of analysis falsely listed Palmer
as the person who tested the solutions. The evidence presented
at the pretrial hearing was similar to that at trial. The court
overruled the motion.
At the beginning of trial, Montoya asked for a standing
objection based on the failure of the certificates of analysis to
comply with title 177, which was granted. Montoya renewed
his objection at trial during the admission of the results of
Montoya’s breath test, on the grounds that (1) the DataMaster
test was out of compliance with title 177, (2) the amended
certificates contained inadmissible hearsay and were not busi-
ness records because they were not created near the time
of the event, and (3) the failure to have Hale available for
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cross-examination violated the Confrontation Clause. The court
again overruled the motion.
Verdict and Sentence
Montoya was found guilty. At the sentencing hearing, the
court found that Montoya had two prior convictions of driving
under the influence, making this his third offense. The State
noted at sentencing that Montoya had been arrested twice
since March 12, 2017, the date of the underlying offense;
once for driving under the influence and the other time for
driving during revocation and false reporting. Defense coun-
sel brought to the court’s attention the fact that Montoya
had recently received a diagnosis of “alcohol use disorder”
and that he had an upcoming job interview. Defense counsel
also pointed out that Montoya had not yet been convicted
of the charged crimes relating to the arrests occurring after
March 12.
The trial court noted that it was giving “consideration” to
the charges Montoya was currently facing, “which certainly
you haven’t been convicted of.” The court sentenced Montoya
to a jail term of 180 days, a fine of $1,000, and a 15-year
license revocation with the ability to apply for an interlock
device permit.
Appeal to District Court
Montoya appealed to the district court, assigning that the
county court erred in overruling his three motions to suppress,
in finding the evidence sufficient to support the jury’s verdict,
and by imposing an excessive sentence. The district court
affirmed the conviction and sentence. Montoya appealed to
the Nebraska Court of Appeals, and we moved the case to our
docket.
ASSIGNMENTS OF ERROR
Montoya assigns that the district court erred by (1) affirm-
ing the county court’s order that denied his motion to suppress
fruits of the stop, (2) affirming the county court’s order that
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denied his motion to suppress fruits of his arrest, (3) affirming
the county court’s order that denied his motion to suppress the
DataMaster results for lack of foundation, (4) finding sufficient
evidence to support Montoya’s conviction, and (5) finding that
Montoya’s sentence was not excessive.
STANDARD OF REVIEW
[1] In an appeal of a criminal case from the county court, the
district court acts as an intermediate court of appeals, and its
review is limited to an examination of the record for error or
abuse of discretion. 1
[2] When deciding appeals from criminal convictions in
county court, we apply the same standards of review that
we apply to decide appeals from criminal convictions in dis-
trict court. 2
[3] 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 protection is a question of
law that an appellate court reviews independently of the trial
court’s determination. 3
[4] In proceedings where the Nebraska Evidence Rules apply,
the admissibility of evidence is controlled by the Nebraska
Evidence Rules; judicial discretion is involved only when the
rules make discretion a factor in determining admissibility. 4
[5] We review for abuse of discretion a trial court’s evi-
dentiary rulings on the sufficiency of a party’s foundation for
admitting evidence. 5
1
State v. McCave, 282 Neb. 500, 805 N.W.2d 290 (2011).
2
Id.
3
State v. Hartzell, 304 Neb. 82, 933 N.W.2d 441 (2019).
4
State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).
5
Id.
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[6] Apart from rulings under the residual hearsay excep-
tion, we review for clear error the factual findings underpin-
ning a trial court’s hearsay ruling and review de novo the
court’s ultimate determination to admit evidence over a hearsay
objection. 6
[7] An appellate court reviews de novo a trial court’s deter-
mination of the protections afforded by the Confrontation
Clause of the Sixth Amendment to the U.S. Constitution and
article I, § 11, of the Nebraska Constitution and reviews the
underlying factual determinations for clear error. 7
[8] 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. 8 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. 9
ANALYSIS
Montoya asserts that the district court erred by affirming
the county court’s orders denying his motions to suppress the
fruits of the stop, to suppress the fruits of the arrest, and to
suppress the DataMaster test results for lack of foundation. He
also asserts that there was insufficient evidence to support his
conviction and that his sentence was excessive. We disagree
with Montoya’s arguments and affirm the judgment of the dis-
trict court.
6
State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
7
State v. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019).
8
State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).
9
Id.
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Motions to Suppress Under
Fourth Amendment
[9] Montoya’s motions to suppress the fruits of the stop
and to suppress the fruits of the arrest were brought under the
Fourth Amendment. Both the Fourth Amendment to the U.S.
Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures. 10
Evidence obtained as the fruit of an illegal search or seizure
is inadmissible in a state prosecution and must be excluded. 11
There are three tiers of police encounters under Nebraska
law. 12 The first tier of police-citizen encounters involves no
restraint of the liberty of the citizen involved, but, rather, the
voluntary cooperation of the citizen is elicited through non-
coercive questioning. 13 This type of contact does not rise to
the level of a seizure and therefore is outside the realm of
Fourth Amendment protection. 14 Only the second and third
tiers of police-citizen encounters are seizures sufficient to
invoke the protections of the Fourth Amendment to the U.S.
Constitution. 15
[10] The second category, the investigatory stop, as defined
by the U.S. Supreme Court in Terry v. Ohio, 16 is limited to
brief, nonintrusive detention during a frisk for weapons or pre-
liminary questioning. 17 This type of encounter is considered a
“seizure” sufficient to invoke Fourth Amendment safeguards,
but because of its less intrusive character requires only that the
stopping officer have specific and articulable facts sufficient to
10
State v. Hartzell, supra note 3.
11
Id.
12
State v. Schriner, 303 Neb. 476, 929 N.W.2d 514 (2019).
13
Id.
14
Id.
15
Id.
16
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).
17
State v. Schriner, supra note 12.
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give rise to reasonable suspicion that a person has committed or
is committing a crime. 18
[11] The third type of police-citizen encounters, arrests, is
characterized by highly intrusive or lengthy search or deten-
tion. 19 The Fourth Amendment requires that an arrest be justified
by probable cause to believe that a person has committed or is
committing a crime. 20
The stop of Montoya’s vehicle after the radar detected he
was speeding was a second-tier encounter. Montoya argues that
the evidence was insufficient to support reasonable suspicion
for the stop because Thorson did not memorialize in his police
report his visual estimation of Montoya’s traveling speed and
because his radar gun could, in theory, have malfunctioned. We
find no merit to this argument.
[12-14] Reasonable suspicion entails some minimal level of
objective justification for detention, something more than an
inchoate and unparticularized hunch, but less than the level of
suspicion required for probable cause. 21 Whether a police officer
has a reasonable suspicion based on sufficient articulable facts
depends on the totality of the circumstances and must be deter-
mined on a case-by-case basis. 22 When a motion to suppress is
denied pretrial and again during trial on renewed objection, an
appellate court considers all the evidence, both from trial and
from the hearings on the motion to suppress. 23
[15] The witnessing of a driving violation, however minor,
is sufficient to support a stop. 24 Although we have held that the
accuracy of the radar equipment must be demonstrated in order
to support a conviction for speeding—if the evidence was based
18
Id.
19
Id.
20
Id.
21
State v. Rogers, 297 Neb. 265, 899 N.W.2d 626 (2017).
22
Id.
23
State v. Piper, 289 Neb. 364, 855 N.W.2d 1 (2014).
24
See State v. Barbeau, 301 Neb. 293, 917 N.W.2d 913 (2018).
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on the radar readings 25—we have never held that a police report
containing a preradar visual estimation of speed is necessary to
demonstrate such accuracy. Rather, reasonable proof that the
particular radar equipment employed on a specific occasion was
accurate and functioning properly is all that is required. 26
[16,17] More to the point, reasonable proof of the accuracy
of the radar equipment indicating to the law enforcement officer
that the defendant was speeding need not be demonstrated in
order to support reasonable suspicion for a stop of the vehicle
for speeding. 27 The appropriate inquiry for an investigatory stop
for speeding is whether a reasonable police officer had a mini-
mal level of objective justification for the belief that speeding
had occurred.
Thorson testified that he had checked his police cruiser’s
radar device at the beginning of his shift to ensure it was work-
ing properly, he waited until the best moment to take the radar
reading, there was a good Doppler tone, and the radar read that
Montoya was driving 50 miles per hour in a 35-mile-per-hour
zone. This provided ample circumstances demonstrating that
the stop was based on more than an inchoate and unparticular-
ized hunch.
We conclude, like the county court and the district court on
intermediate appeal, that the radar reading gave Thorson rea-
sonable suspicion to stop Montoya’s vehicle for speeding. We
find it unnecessary to reach the question of whether Thorson’s
observation of the vehicle crossing the centerline also sup-
ported reasonable suspicion for the stop. And Montoya does
not challenge the continuation of the second-tier detention
based on Thorson’s observations that led him to administer the
field sobriety tests. The county court did not err in overruling
Montoya’s motion to suppress the fruits of the stop, and the
district court did not err in affirming that ruling.
25
See State v. Snyder, 184 Neb. 465, 168 N.W.2d 530 (1969).
26
State v. Kudlacek, 229 Neb. 297, 426 N.W.2d 289 (1988).
27
See Taylor v. Wimes, 10 Neb. Ct. App. 432, 632 N.W.2d 366 (2001).
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Montoya also asserts on appeal that the fruits of the third-
tier encounter, the arrest, should have been suppressed because
Thorson lacked probable cause. Montoya argues that Thorson
lacked probable cause to arrest him for driving under the
influence because Montoya was seated while Thorson per-
formed the horizontal gaze nystagmus, there was no video of
Thorson’s administering the horizontal gaze nystagmus test to
confirm it was performed correctly, and Thorson did not know
if Montoya had regurgitated anything containing alcohol dur-
ing the observation period for the preliminary breath test.
[18] Montoya did not preserve this error for appellate review.
A failure to object to evidence at trial, even though the evi-
dence was the subject of a previous motion to suppress, waives
the objection, and a party will not be heard to complain of the
alleged error on appeal. 28
Foundation for DataMaster Results
and Confrontation Clause
Montoya next argues that the county court should have
granted his motion to suppress the DataMaster test results,
because the certificates of analysis accompanying the calibra-
tion solutions originally did not contain the name of the person
who actually tested them. Montoya argues that the test results
were thus supported by insufficient foundation because there
is no authority under title 177 for amended certificates and
the amended certificates did not “accompany” the solutions
in strict compliance with title 177. 29 He also argues that the
admission of the amended certificates violated the Confrontation
Clause because he had no opportunity to confront Hale.
[19] The four foundational elements which the State must
establish as foundation for the admissibility of a breath test in
a driving under the influence prosecution are as follows: (1)
that the testing device was working properly at the time of the
28
State v. Goynes, 303 Neb. 129, 927 N.W.2d 346 (2019).
29
Brief for appellant at 30.
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testing, (2) that the person administering the test was qualified
and held a valid permit, (3) that the test was properly conducted
under the methods stated by the Department of Health and
Human Services, and (4) that all other statutes were satisfied. 30
Reasonable proof is all that is required to meet the founda-
tional requirements. 31
[20] Section 60-6,201(3) provides that “[t]o be considered
valid,” breath tests “shall be performed according to methods
approved by the Department of Health and Human Services.”
The rules and regulations of the Department of Health and
Human Services relating to the analysis for the determination
of alcohol content in blood or breath are contained in title 177,
chapter 1, of the Nebraska Administrative Code. We have held
with regard to the admission of breath sample test results where
the records of the maintenance of a machine are relied on to
prove that the machine was properly maintained, the records
admitted at trial must show by satisfactory evidence that the
inspections complied with all requirements of title 177. 32
[21-25] The construction of the regulations is a matter of
law in connection with which an appellate court has an obliga-
tion to reach an independent determination regardless of the
ruling of the court below. 33 For purposes of construction, a rule
or regulation of an administrative agency is generally treated
like a statute. 34 An appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words that are plain,
direct, and unambiguous. 35 A collection of statutes pertaining
to a single subject matter are in pari materia and should be
30
State v. Jasa, 297 Neb. 822, 901 N.W.2d 315 (2017).
31
See State v. Kudlacek, supra note 26.
32
State v. Bullock, 223 Neb. 182, 388 N.W.2d 505 (1986).
33
See In re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653
(2019).
34
State v. McIntyre, 290 Neb. 1021, 863 N.W.2d 471 (2015).
35
Shelter Mut. Ins. Co. v. Freudenburg, 304 Neb. 1015, 938 N.W.2d 92
(2020).
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conjunctively considered and construed to determine the intent
of the Legislature, so that different provisions are consistent,
harmonious, and sensible. 36 It is impermissible to follow a lit-
eral reading that engenders absurd consequences where there
is an alternative interpretation that reasonably effects a stat-
ute’s purpose. 37
The DataMaster is an approved breath testing device 38 and,
under the regulations, must be calibrated by the maintenance
officer every 40 days and within 40 days prior to an analy-
sis. 39 Section 008 encompasses the “List of Approved Methods,
Breath Testing Instruments, Calibration Devices, and Internal
Reference Standards.” Before placement into service at a test-
ing site, the “internal quartz standard” of the DataMaster shall
have the calibration checked with an alcohol wet bath simula-
tor solution or dry gas standard. 40 The regulations outline how
testing device calibration and calibration verification shall be
performed. 41 The regulations further specify that the wet bath
simulator solution “must be accompanied by a certificate of
analysis” and that the certificate of analysis “must contain” cer-
tain information, including the “[n]ame of the person who tested
the solution.” 42
In State v. Krannawitter, 43 we held in the context of a motion
for new trial that the discovery that the wrong name had been
listed in the original calibration certificates did not mean the
DataMaster test results would probably have been inadmis-
sible. We explained that the discovery of the name error was
36
Id.
37
Id.
38
See 177 Neb. Admin. Code, ch. 1, § 008 (2016).
39
See 177 Neb. Admin. Code, ch. 1, §§ 009 and 010 (2016).
40
See 177 Neb. Admin. Code, ch. 1, § 008.03A (2016).
41
See 177 Neb. Admin. Code, ch. 1, § 008.04 (2016).
42
See 177 Neb. Admin. Code, ch. 1, § 008.04A (2016).
43
State v. Krannawitter, ante p. 66, 939 N.W.2d 335 (2020).
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accompanied by amended calibration certificates containing the
correct name, which we held were independent foundational
evidence supporting the admission of the DataMaster test results.
We noted that whether there is sufficient foundation is a question
for the trial court, and the trial court had found that the founda-
tional elements were met by the amended certificates.
The trial court likewise found here that the foundational ele-
ments for the admission of Montoya’s breath test results had
been met, and we find no error in its judgment. In considering
whether the trial court properly overruled a renewed objection
at trial to evidence on the ground of lack of foundation, we
consider the evidence submitted at trial as well as the evidence
submitted at the pretrial hearing on the objection. 44 Though the
name listed for the person who tested the solutions was origi-
nally incorrect, the certificates of analysis listed the correct name
of the person who tested them by the time of the admission of
the test results at trial.
[26] In this context of a clerical error, we disagree with
Montoya’s suggestion that to “accompan[y]” under § 008.04A
is limited to the moment the solution is shipped to the rel-
evant law enforcement agency. Although Montoya is cor-
rect that there is no reference to “amended certificates” in
title 177, it does not follow that they are impermissible. The
solutions utilized in calibrating the DataMaster within 40
days prior to the test of Montoya’s breath sample have at all
times been accompanied by certificates of analysis contain-
ing all the categories of information required under title 177.
There is nothing in title 177 suggesting that clerical errors
in certificates of analysis cannot be corrected. The inflex-
ibility Montoya proposes could have the absurd consequence
that a DataMaster test could be deemed unreliable despite
undisputed evidence at the time of trial that the records of
maintenance of the machine complied with all regulatory
requirements. We hold that amended certificates of analysis
44
See State v. Piper, supra note 23.
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to correct clerical errors provide satisfactory evidence that
the inspections of an approved breath testing device complied
with the requirements of title 177.
[27] We also disagree with Montoya’s suggestion that the
amended certificates were inadmissible to provide founda-
tion for the DataMaster test results because they violated the
Confrontation Clause. The Confrontation Clause provides, in rel-
evant part: “In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him
. . . .” 45 Only testimonial statements “cause the declarant to be
a ‘witness’ within the meaning of the Confrontation Clause.” 46
“It is the testimonial character of the statement that separates
it from other hearsay that, while subject to traditional limita-
tions upon hearsay evidence, is not subject to the Confrontation
Clause.” 47 If the statements are nontestimonial, then no further
Confrontation Clause analysis is required. 48
[28,29] In Melendez-Diaz v. Massachusetts, 49 the U.S.
Supreme Court said that unless the regularly conducted activity
of a business is the production of evidence for use at trial, busi-
ness records are not testimonial. We have accordingly held that
neither original simulator solution certifications 50 nor amended
certifications 51 are testimonial for purposes of the Confrontation
Clause. In either case, the simulator solution certifications are
prepared in a routine manner without regard to any particular
defendant. 52 In Krannawitter, we explained that there was no
45
U.S. Const. amend. VI. Accord Davis v. Washington, 547 U.S. 813, 126 S.
Ct. 2266, 165 L. Ed. 2d 224 (2006).
46
Davis v. Washington, supra note 45, 547 U.S. at 821.
47
Id.
48
State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007).
49
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L.
Ed. 2d 314 (2009).
50
See State v. Fischer, supra note 48.
51
See State v. Krannawitter, supra note 43.
52
See State v. Fischer, supra note 48.
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indication either on the face of the amended certificates or in the
testimony at trial that the amended certificates at issue in that
case were prepared for a particular criminal proceeding. 53 That
is also true here.
The amended certificates provided satisfactory evidence that
the inspections of the DataMaster complied with the require-
ments of title 177, and their admission did not violate the
Confrontation Clause. The trial court did not err in overruling
Montoya’s motion to suppress the DataMaster test results for
lack of foundation, and the district court did not err in affirm-
ing the order of the county court.
Sufficiency of Evidence
Montoya’s challenge to the sufficiency of the evidence
depends upon the success of his argument that the DataMaster
test results were inadmissible. Having concluded that the
DataMaster test results demonstrating .134 of a gram of alco-
hol per 210 liters of Montoya’s breath were admissible, we find
the evidence sufficient to support Montoya’s conviction for
driving under the influence.
Excessive Sentence Challenge
Lastly, Montoya argues that his sentence to a jail term of
180 days was excessive. Montoya’s sentence was within the
statutory limits. The statutory penalty range was a mandatory
minimum of 90 days’ imprisonment and a $1,000 fine and a
maximum of 1 year’s imprisonment and a $1,000 fine. 54 It
is also required that a person convicted of driving under the
influence who has had two prior convictions shall, as part of
the judgment of conviction, have his or her operator’s license
revoked for a period of 15 years. 55
[30-32] Absent an abuse of discretion by the trial court, an
appellate court will not disturb a sentence imposed within the
53
State v. Krannawitter, supra note 43.
54
See Neb. Rev. Stat. § 28-106(1) (Reissue 2016).
55
Neb. Rev. Stat. § 60-6,197.03(4) (Cum. Supp. 2018).
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statutory limits. 56 Where a sentence imposed within the statu-
tory limits is alleged on appeal to be excessive, the appellate
court must determine whether a sentencing court abused its
discretion in considering and applying the relevant factors as
well as any applicable legal principles in determining the sen-
tence to be imposed. 57 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 con-
science, reason, and evidence. 58
[33,34] In determining a sentence to be imposed, relevant
factors customarily considered and applied are the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social
and cultural background, (5) past 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. 59 The appropriateness
of a sentence is necessarily a subjective judgment 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. 60
[35-37] Montoya asserts that the county court improperly
considered the fact that he committed acts after March 12,
2017, leading to charges of crimes related to driving under the
influence, but on which he has not been tried. The sentencing
phase is separate and apart from the trial phase, and the tradi-
tional rules of evidence may be relaxed following conviction
so that the sentencing authority can receive all information
pertinent to the imposition of sentence. 61 A sentencing court
has broad discretion as to the source and type of evidence and
56
State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 (2020).
57
State v. Becker, 304 Neb. 693, 936 N.W.2d 505 (2019).
58
Id.
59
Id.
60
Id.
61
State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).
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information which may be used in determining the kind and
extent of the punishment to be imposed, and evidence may be
presented as to any matter that the court deems relevant to the
sentence. 62 It is permissible for a sentencing court to consider
the information that a defendant has been charged with but not
yet tried for allegedly illegal acts committed after the offense
for which the defendant is being sentenced. 63 And the court’s
statements from the bench indicate it gave appropriate weight
to the fact that Montoya had not actually been convicted of the
charged crimes.
Montoya also argues that his sentence was excessive in light
of his efforts at obtaining employment and his recent diagno-
sis with an “alcohol use disorder” as a result of his initiative
to receive treatment. Montoya asserts, further, that the court
did not adequately take into account that no one was injured
during the commission of his crime, no children were in the
vehicle, and he was cooperative with law enforcement after he
was stopped.
[38] Causing bodily injury while driving under the influence
is a separate crime with a different sentencing range; 64 the sen-
tencing range for the crime Montoya was charged with already
takes into account that no one was physically harmed. Although
Montoya did not have children in the vehicle, there were two
adult passengers placed at risk. And whether or not there are
passengers in a vehicle, driving under the influence presents a
serious threat to public safety. 65
[39] Montoya’s cooperation and his efforts toward employ-
ment and treatment were weighed by the sentencing court
against the gravity of this third-time offense endangering public
safety. It is not the function of an appellate court to conduct a
62
State v. Anglemyer, 269 Neb. 237, 691 N.W.2d 153 (2005).
63
See, State v. Becker, supra note 57; State v. Williams, 282 Neb. 182, 802
N.W.2d 421 (2011).
64
See Neb. Rev. Stat. § 60-6,198 (Cum. Supp. 2018).
65
See State v. Rice, 269 Neb. 717, 695 N.W.2d 418 (2005).
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de novo review of the record to determine whether a sentence
is appropriate. 66
Like the district court, we find no abuse of discretion in the
sentence imposed.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
district court, which found no error in the challenged rulings
by the trial court.
Affirmed.
66
State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019).