State v. Vaughn

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/05/2023 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. VAUGHN
Cite as 314 Neb. 167State of Nebraska, appellee, v.
John Vaughn, appellant.
___ N.W.2d ___
Filed May 5, 2023. No. S-22-308.
1. Constitutional Law: Search and Seizure: Motions to Suppress:
Appeal and Error. When 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 indepen-
dently of the trial court’s determination.
2. Motions to Suppress: Confessions: Constitutional Law: Appeal and
Error. In reviewing a motion to suppress a confession based on the
claimed involuntariness of the statement, an appellate court applies a
two-part standard of review. With regard to historical facts, an appellate
court reviews the trial court’s findings for clear error. Whether those
facts suffice to meet the constitutional standards, however, is a ques-
tion of law, which an appellate court reviews independently of the trial
court’s determination.
3. Rules of Evidence: Hearsay: Appeal and Error. Apart from rul-
ings under the residual hearsay exception, an appellate court reviews
for clear error the factual findings underpinning a trial court’s hear-
say ruling and reviews de novo the court’s ultimate determination to
admit evidence over a hearsay objection or exclude evidence on hear-
say grounds.
4. 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 and reviews the underlying fac-
tual determinations for clear error.
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Cite as 314 Neb. 1675. Motions for Mistrial: Appeal and Error. An appellate court will not
disturb a trial court’s decision whether to grant a motion for mistrial
unless the trial court has abused its discretion.
6. 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.
7. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
8. Constitutional Law: Search and Seizure. Both the Fourth Amendment
to the U.S. Constitution and article I, § 7, of the Nebraska Constitution
guarantee against unreasonable searches and seizures.
9. Search and Seizure: Warrantless Searches. Searches without a valid
warrant are per se unreasonable, subject only to a few specifically estab-
lished and well-delineated exceptions.
10. Warrantless Searches. The warrantless search exceptions that
Nebraska has recognized include: (1) searches undertaken with con-
sent, (2) searches under exigent circumstances, (3) inventory searches,
(4) searches of evidence in plain view, and (5) searches incident to a
valid arrest.
11. Warrantless Searches: Motor Vehicles. Nebraska has recognized that
among the established exceptions to the warrant requirement is the auto-
mobile exception.
12. Search and Seizure: Warrantless Searches: Probable Cause: Motor
Vehicles. The automobile exception to the warrant requirement applies
when a vehicle is readily mobile and there is probable cause to believe
that contraband or evidence of a crime will be found in the vehicle.
13. Probable Cause: Police Officers and Sheriffs: Motor Vehicles.
Probable cause may result from any of the senses, and an officer is
entitled to rely on his or her sense of smell in determining whether con-
traband is present in a vehicle.
14. Search and Seizure: Warrantless Searches: Probable Cause: Police
Officers and Sheriffs: Motor Vehicles. When an officer with suffi-
cient training and experience detects the odor of marijuana emanating
from a vehicle that is readily mobile, the odor alone furnishes probable
cause to suspect contraband will be found in the vehicle and the vehicle
may be lawfully searched under the automobile exception to the war-
rant requirement.
15. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda
v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966),
prohibits the use of statements derived during custodial interrogation
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STATE V. VAUGHN
Cite as 314 Neb. 167unless the prosecution demonstrates the use of procedural safeguards
that are effective to secure the privilege against self-incrimination.
16. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.
Under the Miranda rule, a “custodial interrogation” takes place when
questioning is initiated by law enforcement after a person has been taken
into custody or is otherwise deprived of his or her freedom of action in
any significant way.
17. Miranda Rights. The ultimate inquiry for determining whether a person
is “in custody” for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L. Ed. 2d 694 (1966), is simply whether there is a formal
arrest or restraint on freedom of movement of the degree associated with
a formal arrest.
18. Pretrial Procedure: Pleadings: Evidence: Juries: Appeal and Error.
A motion in limine is a procedural step to prevent prejudicial evidence
from reaching the jury. It is not the office of a motion in limine to
obtain a final ruling upon the ultimate admissibility of the evidence.
Therefore, when a court overrules a motion in limine to exclude evi-
dence, the movant must object when the particular evidence is offered
at trial in order to predicate error before an appellate court.
19. Pretrial Procedure: Pleadings: Appeal and Error. An appellant who
has assigned only that the trial court erred in denying a motion in limine
has not triggered appellate review of the evidentiary ruling at trial.
20. Hearsay: Words and Phrases. Hearsay is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.
21. Hearsay. An out-of-court statement is not hearsay if the proponent
offers it for a purpose other than proving the truth of the matter asserted.
22. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
a criminal case where an event occurs during the course of trial which
is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
23. Motions for Mistrial: Proof: Appeal and Error. To prove error predi-
cated on the failure to grant a mistrial, the defendant must prove that the
alleged error actually prejudiced him or her, rather than creating only
the possibility of prejudice.
24. Sentences: Appeal and Error. When sentences imposed within stat-
utory limits are alleged on appeal to be excessive, the appellate
court must determine whether the sentencing court abused its discre-
tion in considering well-established factors and any applicable legal
principles.
25. Sentences. When imposing a sentence, a sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education and
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STATE V. VAUGHN
Cite as 314 Neb. 167experience, (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.
26. ____. The sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a
subjective judgment that includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Rebekah S. Keller for appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
I. INTRODUCTION
In this direct appeal, John Vaughn challenges his convic-
tions and sentences in the district court for Douglas County,
Nebraska, for possession with intent to distribute marijuana
and failure to affix a tax stamp. Vaughn contends that the
district court should have suppressed evidence of marijuana
found when law enforcement conducted a warrantless search
of a duffelbag and a suitcase on an Amtrak train, as well as
statements that Vaughn made to law enforcement. He also
contends that the district court should not have allowed tes-
timony at trial about an Amtrak employee’s statement that
Vaughn owned the duffelbag or about apparent marijuana
that was not chemically tested and found to contain “Delta-9-
tetrahydrocannabinol” (THC). 1 In addition, Vaughn contends
1
See Neb. Rev. Stat. § 28-401 (Cum. Supp. 2022).
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STATE V. VAUGHN
Cite as 314 Neb. 167that the district court should have granted a mistrial because of
the admission of hearsay regarding his ownership of the duf-
felbag and that his sentence of imprisonment was excessive.
We affirm.
II. BACKGROUND
Vaughn was a passenger on an Amtrak train traveling from
Emeryville, California, to Chicago, Illinois, on February 4, 2021.
At approximately 4:50 a.m., Vaughn’s train made a scheduled
stop in Omaha, Nebraska. Such stops generally last approxi-
mately 10 to 15 minutes. In 2021, the U.S. Drug Enforcement
Administration had an agreement with Amtrak to search trains
stopped in Omaha for “indicators of drug trafficking or drug
distribution.” One of those indicators was “unmarked luggage,”
or luggage without tags or identification.
While searching Vaughn’s train, Brian Miller, a Potta­
wattamie County, Iowa, sheriff’s deputy assigned to a Drug
Enforcement Administration drug interdiction task force,
observed an unmarked duffelbag on a luggage rack near room
No. 12 (Room 12). Miller smelled the “seam” or “zipper por-
tion” at the top of the duffelbag and detected the odor of mari-
juana. He opened the duffelbag and saw several sealed pack-
ages that appeared to contain marijuana. He asked an Amtrak
employee who owned the duffelbag. According to Miller, the
Amtrak employee said that the duffelbag belonged to the man
in Room 12.
Miller knocked on the door of Room 12, and Vaughn
answered. Vaughn had been asleep and was on his bed. Miller
claims that he did not enter the doorway, but instead stood
in the hall “[t]o the side of the doorway,” facing the train’s
exit. Miller also claims that Vaughn consented to speak with
him and admitted to owning the duffelbag and the contents of
Room 12. However, Vaughn claims that he told Miller he did
not own or recognize the duffelbag.
Vaughn was arrested and taken into the Amtrak terminal.
Miller and Drug Enforcement Administration agent Daniel
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STATE V. VAUGHN
Cite as 314 Neb. 167Pelster then searched Room 12 and found a hard-sided suit-
case. In the suitcase, they discovered additional sealed pack-
ages apparently containing marijuana. Vaughn claims that the
suitcase found in Room 12 was not his and that he had never
seen the suitcase before.
The State of Nebraska charged Vaughn with (1) possession
with intent to distribute marijuana; (2) possession of marijuana,
more than 1 pound; and (3) failure to affix a tax stamp.
1. Motion to Suppress
Prior to trial, Vaughn moved to suppress the evidence of
marijuana found in the search of the duffelbag and the suitcase,
as well as his statements to law enforcement. Miller was the
sole witness at the hearing on that motion. Miller testified that
marijuana has a distinct odor, which he recognizes based on
his training and experience. He also testified that he detected
the odor of marijuana when he smelled the seam of the duf-
felbag. Miller stated that he did not “manipulate” the bag
before detecting that odor, although he did subsequently move
the bag. According to Miller, he “conducted a probable cause
[search]” of the bag and discovered approximately 17 pounds
of marijuana. Miller admitted that he did not inform Vaughn
that Vaughn did not have to talk to him and was free to leave.
However, Miller testified that Vaughn was free to leave. Miller
also testified that he and Pelster “conducted a probable cause
search” of Room 12 and found a suitcase with approximately
37 pounds of marijuana.
Following Miller’s testimony, Vaughn argued that the mari-
juana found in the luggage should be suppressed because
“[t]here is no probable cause exception to the Fourth
Amendment.” Vaughn argued that under United States v.
Place, 2 law enforcement cannot just search a bag if there is
probable cause or a reasonable articulable suspicion of crimi-
nal activity; instead, officers need to seize the property and
2
United States v. Place, 462 U.S. 696, 103 S. Ct. 2637, 77 L. Ed. 2d 110(1983).
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STATE V. VAUGHN
Cite as 314 Neb. 167request a warrant. Vaughn similarly argued that his statements
to law enforcement should be suppressed, because a reasonable
person would not have believed that he or she was free to leave
the train or refuse questioning, especially because the train was
briefly stopped in Omaha and Vaughn was en route to Chicago.
The State disagreed.
The district court rejected Vaughn’s arguments. As to the
evidence of marijuana, the district court found that “the officer
had the ability to smell the bag.” The court also found that offi-
cers have probable cause to search a bag if they “smell[] the
odor of marijuana coming from the zipper.” Likewise, the court
found that Vaughn was not in custody until he was arrested and
that “[t]here was no reason to give him [his] Miranda rights”
until then. Specifically, the court found that Miller was “at the
side of the door” and that Vaughn was free to leave.
Vaughn subsequently preserved the issues raised in his
motion to suppress by objecting to the admission at trial of
evidence of the marijuana found in the duffelbag and the suit-
case and of his statements to law enforcement.
2. Motion in Limine to Exclude Evidence
Not Chemically Tested
Thereafter, Vaughn filed a motion in limine to prohibit any
evidence or testimony at trial regarding apparent marijuana
found in the suitcase that was not subjected to chemical testing
by the Douglas County sheriff’s office. The suitcase contained
15 plastic bags, only 3 of whose contents were chemically
tested; the results of those tests indicated the presence of THC.
The contents of the other 12 bags were merely examined visu-
ally and resealed.
Vaughn argued that evidence or testimony regarding the
contents of the 12 bags that were not chemically tested was
irrelevant and more prejudicial than probative. The district
court disagreed, instead finding that the contents of the 12
untested bags included “evidence of the narrative of the alle-
gations against [Vaughn].” The court observed that those 12
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STATE V. VAUGHN
Cite as 314 Neb. 167bags were “packaged similarly and were in the [suitcase]”
allegedly in Vaughn’s possession and “can be regarded as indi-
cia of the crimes alleged.”
3. Motion in Limine to Exclude Amtrak
Employee’s Statements
Vaughn subsequently made another motion in limine to
preclude Miller from testifying that an Amtrak employee told
him that Vaughn owned the duffelbag found on the luggage
rack near Room 12. Vaughn argued that the testimony was
hearsay; that it was more prejudicial than probative, because
it related to ownership of the bag where the marijuana was
found; and that it violated the Confrontation Clause. Vaughn
stated that if the district court overruled his objection, he
“assume[d]” it would make a “strong limiting instruction for
the jury,” but he did not “think that a limiting instruction
would go far enough.”
The State disagreed, arguing that the statement was not
hearsay, because it was offered to prove its impact on the
listener, instead of its truth. The State argued that the Amtrak
employee’s statement about the bag’s owner was important to
Miller’s story, because otherwise there was no apparent reason
for Miller to go to Room 12. The district court agreed with
the State that the statement was not hearsay and overruled
Vaughn’s motion. The court declined to decide about a limit-
ing instruction at that time. However, the court subsequently
instructed the jury as to what constitutes hearsay and indicated
that it was allowing the Amtrak employee’s statement, because
that statement was not offered to prove the truth of the mat-
ter asserted.
4. Jury Trial and Sentencing
A jury trial was held at which the State presented testimony
from Miller, Pelster, and a forensic chemist with the Douglas
County sheriff’s office. Vaughn testified in his own behalf. The
testimony of all four witnesses as relevant to this appeal is
briefly summarized below.
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STATE V. VAUGHN
Cite as 314 Neb. 167Miller testified that Vaughn appeared “calm” when Vaughn
opened the door and that Miller had a “consensual encoun-
ter” with Vaughn in which Vaughn said that he had flown to
California 2 days earlier. Pelster testified that he was 15 to 20
feet away during that encounter, but could not hear the con-
versation or see Vaughn at that time. Pelster also testified that
he subsequently saw Vaughn leave Room 12 and that no one
else was present in or left the room. Miller and Pelster both
opined that it was significant that Vaughn flew to California
and returned shortly thereafter by train. Both also opined that
the quantity of marijuana suggested that the marijuana was for
distribution, because there was more than one person could
use before it “depreciate[d].” According to both Miller and
Pelster, persons with marijuana for personal use generally have
less than 1 pound of the drug; they also generally have rolling
papers, pipes, or other paraphernalia.
The forensic chemist testified that both the duffelbag and
the suitcase contained multiple sealed black plastic bags, each
of which, in turn, contained a clear plastic bag “tied in a knot
with a green botanical substance within it.” She also testified
that the contents of all the plastic bags in the duffelbag and of
three of the plastic bags in the suitcase were chemically tested
and found to contain greater than 1 percent of THC.
Thereafter, Vaughn testified in his own behalf that he had
taken a train to California and spent 2 weeks there, “do[ing]
music” and visiting his girlfriend. He also testified that during
his encounter with Miller, Miller was “hovering over [him]
because the bed’s so low,” and that they would have been “face
to face, [really] close,” if Vaughn stood up. Vaughn suggested
that “people [were] trying to set [him] up” and that he “was
targeted, because of [his] appearance.” Vaughn observed that
he was “young and black,” was “on a sleeper car,” and has
visible tattoos.
The jury found Vaughn guilty of possession with intent to
distribute marijuana; possession of marijuana, more than 1
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STATE V. VAUGHN
Cite as 314 Neb. 167pound; and failure to affix a tax stamp. However, the district
court sustained Vaughn’s motion to dismiss the charge of pos-
session of more than 1 pound on double jeopardy grounds.
Subsequently, after a sentencing hearing described in more
detail later in this opinion, the court sentenced Vaughn to 4 to 6
years’ imprisonment for the drug offense and a fine of $10,000
for the tax stamp offense.
Vaughn appeals his convictions and sentences. We moved
the matter to our docket on our own motion.
III. ASSIGNMENTS OF ERROR
Vaughn assigns, restated, that (1) the district court erred
when it denied his motion to suppress physical evidence and
his statements to law enforcement, (2) the district court erred
in overruling his motion in limine to “prevent the admission
of hearsay statements at trial” and abused its discretion by
(a) permitting the admission of hearsay and (b) permitting
the admission of hearsay in violation of the Confrontation
Clause, (3) the district court’s failure to grant his request for
a mistrial based on the admission of hearsay constituted a
miscarriage of justice, (4) the district court abused its discre-
tion when it denied his motion in limine and permitted the
admission of evidence and testimony regarding the apparent
marijuana that was not chemically tested, and (5) the district
court abused its discretion by imposing an excessive sentence
of imprisonment.
IV. STANDARD OF REVIEW
[1,2] When 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. 3 Regarding historical facts, an appellate court reviews
the trial court’s findings for clear error, but whether those
facts trigger or violate Fourth Amendment protections is a
3
State v. Albarenga, 313 Neb. 72, 982 N.W.2d 799 (2022).
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Cite as 314 Neb. 167question of law that an appellate court reviews independently
of the trial court’s determination. 4 An appellate court applies a
similar two-part standard of review when reviewing a motion
to suppress a confession based on the claimed involuntari-
ness of the statement, reviewing the trial court’s findings with
regard to historical facts for clear error and independently
reviewing the trial court’s determination as to whether those
facts suffice to meet constitutional standards. 5
[3] Apart from rulings under the residual hearsay exception,
an appellate court reviews for clear error the factual findings
underpinning a trial court’s hearsay ruling and reviews de novo
the court’s ultimate determination to admit evidence over a
hearsay objection or exclude evidence on hearsay grounds. 6
[4] An appellate court reviews de novo a trial court’s deter-
mination of the protections afforded by the Confrontation
Clause and reviews the underlying factual determinations for
clear error. 7
[5-7] An appellate court will not disturb a trial court’s deci-
sion whether to grant a motion for mistrial unless the trial
court has abused its discretion. 8 An appellate court similarly
reviews a sentence imposed within the statutory limits for
abuse of discretion by the trial court. 9 A judicial abuse of
discretion exists only when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying a just result in matters submitted
for disposition. 10
4
Id.5
State v. Weichman, 292 Neb. 227, 871 N.W.2d 768 (2015).
6
Elbert v. Young, 312 Neb. 58, 977 N.W.2d 892 (2022).
7
State v. Comacho, 309 Neb. 494, 960 N.W.2d 739 (2021).
8
State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022).
9
State v. Abligo, 312 Neb. 74, 978 N.W.2d 42 (2022).
10
Mackiewicz v. Mackiewicz, 313 Neb. 281, 984 N.W.2d 253 (2023).
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STATE V. VAUGHN
Cite as 314 Neb. 167V. ANALYSIS
1. Overruling Vaughn’s
Motion to Suppress
In his first assignment of error, Vaughn contends that the
district court erred in overruling his motion to suppress the
physical evidence obtained from the search of the duffelbag
and his statements to law enforcement on the train. We address
Vaughn’s arguments as to the physical evidence first, before
turning to his statements to law enforcement.
(a) Evidence From Search of Duffelbag
Vaughn argues that the district court erred in finding that “an
officer’s sniff of a bag and subsequent warrantless search of
that bag” did not violate his rights under the U.S. and Nebraska
Constitutions. 11 We disagree.
[8-12] Both the Fourth Amendment to the U.S. Constitution
and article I, § 7, of the Nebraska Constitution guarantee
against unreasonable searches and seizures. 12 Searches with-
out a valid warrant are per se unreasonable, subject only to a
few specifically established and well-delineated exceptions. 13
The warrantless search exceptions that Nebraska has rec-
ognized include: (1) searches undertaken with consent, (2)
searches under exigent circumstances, (3) inventory searches,
(4) searches of evidence in plain view, and (5) searches inci-
dent to a valid arrest. 14 We have also recognized that among
the established exceptions to the warrant requirement is the
automobile exception. 15 The automobile exception to the war-
rant requirement applies when a vehicle is readily mobile
11
Brief for appellant at 17.
12
State v. Miller, 312 Neb. 17, 978 N.W.2d 19 (2022).
13
Id.14
State v. Saitta, 306 Neb. 499, 945 N.W.2d 888 (2020).
15
Id.- 179 -
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Cite as 314 Neb. 167and there is probable cause to believe that contraband or evi-
dence of a crime will be found in the vehicle. 16
[13] Probable cause to search requires that the known facts
and circumstances are sufficient to warrant a person of reason-
able prudence in the belief that contraband or evidence of a
crime will be found. 17 Probable cause may result from any
of the senses, and an officer is entitled to rely on his or her
sense of smell in determining whether contraband is present in
a vehicle. 18
[14] In State v. Seckinger, 19 we reaffirmed that when an
officer with sufficient training and experience detects the
odor of marijuana emanating from a vehicle that is readily
mobile, the odor alone furnishes probable cause to suspect
contraband will be found in the vehicle and the vehicle may
be lawfully searched under the automobile exception to the
warrant requirement. Further, both the U.S. Supreme Court
and this court have “relied on the automobile exception to a
search warrant requirement in upholding searches of contain-
ers found during a probable cause search of a vehicle” within
which law enforcement has probable cause to believe con-
traband or evidence is contained. 20 Containers include pack-
ages or luggage within the vehicle which might reasonably
hold the item for which law enforcement has probable cause
to search. 21
Some courts use the term “vehicle exception,” rather than
“automobile exception,” in recognition of the fact that the
16
State v. Lang, 305 Neb. 726, 942 N.W.2d 388 (2020).
17
Id.18
State v. Seckinger, 301 Neb. 963, 920 N.W.2d 842 (2018).
19
Id.20
State v. Konfrst, 251 Neb. 214, 230-31, 556 N.W.2d 250, 262 (1996)
(citing California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d
619 (1991), and State v. McGuire, 218 Neb. 511, 357 N.W.2d 192 (1984)).
21
See id.- 180 -
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STATE V. VAUGHN
Cite as 314 Neb. 167exception extends to more than just automobiles. 22 Other
courts have applied the automobile exception to common carri-
ers, such as buses and trains, on the grounds that those modes
of transportation are like automobiles in that they are mobile
and involve a reduced expectation of privacy. 23 For example,
in State v. Lovely, 24 the Idaho Court of Appeals rejected the
argument that the suitcases of the defendant—a passenger
on a Greyhound bus bound from Oregon to Minnesota—
were unreasonably searched after law enforcement detected a
“strong odor of marijuana” emanating from the suitcases when
the bus made a scheduled stop in Idaho. The defendant did not
dispute that there was probable cause to search her suitcases. 25
Instead, she argued that the automobile exception’s doctrinal
basis in mobility and reduced expectations of privacy “does
not apply to a commercial bus.” 26
The court disagreed, finding that the “exigency created by
mobility” is not lessened because a passenger is not in control
of the bus or because the bus has a predetermined route. 27
The court also observed the pervasive regulation of vehi-
cles capable of traveling on public highways. 28 Accordingly,
the court concluded that insofar as there was probable
cause to search the defendant’s suitcases due to the odor of
22
See, e.g., Brown v. State, 653 N.E.2d 77 (Ind. 1995); State v. Leveye, 796
S.W.2d 948 (Tenn. 1990); State v. Ramirez, 121 Idaho 319, 824 P.2d 894(Idaho App. 1991).
23
See, e.g., U.S. v. Tartaglia, 864 F.2d 837 (D.C. Cir. 1989) (train); United
States v. Pina, 648 Fed. Appx. 899 (11th Cir. 2016) (bus); Green v. State,
334 Ark. 484, 978 S.W.2d 300 (1998) (bus); Symes v. U.S., 633 A.2d 51(D.C. 1993) (train); State v. Lovely, 159 Idaho 675, 365 P.3d 431 (Idaho
App. 2016) (bus); Alvarez v. Com., 24 Va. App. 768, 485 S.E.2d 646(1997) (bus).
24
Lovely, supra note 23, 159 Idaho at 676, 365 P.3d at 432.
25
Lovely, supra note 23.
26
Id. at 677, 365 P.3d at 433.
27
Id. at 678, 365 P.3d at 434.
28
Id.- 181 -
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STATE V. VAUGHN
Cite as 314 Neb. 167marijuana, a warrantless search of the suitcases was permitted
under the automobile exception. 29
We find that reasoning persuasive here. Miller was in a
public area on the train when he noticed the unmarked duf-
felbag and sniffed it. Miller testified that he had training and
experience in detecting the odor of marijuana and that he
smelled the odor of marijuana emanating from the duffelbag.
That smell gave Miller probable cause to suspect contraband
would be found in the duffelbag. Had Vaughn been in a read-
ily mobile automobile, 30 a warrantless search of the car and
the duffelbag would have been permitted pursuant to the auto-
mobile exception under Seckinger and related cases. We see
no reason for a different outcome here because Vaughn used
a different mode of transportation, particularly because the
Amtrak train from Emeryville to Chicago generally remains
in Omaha for only 10 to 15 minutes before departing for
other states. 31
Vaughn does not allege that Miller physically manipulated
the duffelbag prior to detecting the odor of marijuana, 32 and
29
Id.30
See Seckinger, supra note 18 (vehicle readily mobile whenever not located
on private property and capable or apparently capable of being driven on
roads or highways).
31
See, e.g., United States v. Johnston, 497 F.2d 397, 398, 399 (9th Cir.
1974) (law enforcement officer “not required to assume that Defendant
would stay on the train with the marijuana in the suitcases all the way
to New York City,” because defendant could “depart with the suitcases
at some stop along the way” or hand them over “at some intermediate
point to an accomplice”); U.S. v. Liberto, 660 F. Supp. 889, 892 (D.D.C.
1987) (upholding warrantless search of train passenger’s suitcase; if law
enforcement officers wired ahead to another jurisdiction to obtain warrant,
they risk situation where “defendant might well have left the train at an
earlier stop”), affirmed without opinion, 838 F.2d 571 (D.C. Cir. 1988).
32
Compare Bond v. United States, 529 U.S. 334, 120 S. Ct. 1462, 146 L. Ed.
2d 365 (2000) (officer’s physical manipulation of bus passenger’s carry-on
luggage violated Fourth Amendment).
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Cite as 314 Neb. 167his reliance on Place 33 is misplaced. Focusing on the fact
that luggage is involved, Vaughn seeks to rely on language in
Place which he apparently construes to mean that law enforce-
ment must always seize luggage and obtain a warrant before
searching it. However, as the U.S. Supreme Court observed in
California v. Acevedo, 34 Place concerned the “temporary deten-
tion of luggage in an airport”; it “had nothing to do with the
automobile exception.”
(b) Vaughn’s Statements to
Law Enforcement
Vaughn similarly argues that his statements to law enforce-
ment allegedly admitting ownership of the duffelbag and
suitcase should be suppressed because he was not advised
of his rights under Miranda v. Arizona 35 prior to making
those statements.
[15-17] Miranda prohibits the use of statements derived dur-
ing custodial interrogation unless the prosecution demonstrates
the use of procedural safeguards that are effective to secure the
privilege against self-incrimination. 36 The safeguards provided
by Miranda “‘“come into play whenever a person in custody
is subjected to either express questioning or its functional
equivalent.”’” 37 Under the Miranda rule, a “custodial inter-
rogation” takes place when questioning is initiated by law
enforcement after a person has been taken into custody or
is otherwise deprived of his or her freedom of action in any
significant way. 38 Both the U.S. Supreme Court and this court
have emphasized that “the ultimate inquiry for determining
33
Place, supra note 2.
34
Acevedo, supra note 20, 500 U.S. at 577, 578.
35
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
36
State v. Connelly, 307 Neb. 495, 949 N.W.2d 519 (2020).
37
Id. at 505, 949 N.W.2d at 527.
38
Id.
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Cite as 314 Neb. 167whether a person is ‘in custody’ for purposes of Miranda ‘“is
simply whether there is a formal arrest or restraint on freedom
of movement of the degree associated with a formal arrest.”’” 39
We view these two articulations as synonymous.
The term “interrogation” under Miranda refers not only to
express questioning, but also to any words or actions on the
part of the police (other than those normally attendant to arrest
and custody) that the police should know are reasonably likely
to elicit an incriminating response from the suspect. 40
Vaughn’s argument apparently concerns the “custody” prong
of the Miranda rule. Specifically, Vaughn argues that a reason-
able person in his situation would not have believed that he
or she was free to leave, because “the train was temporarily
stopped in Omaha while Vaughn was en route to Chicago” and
he would have been “isolated” in an “unknown” city, “unaware
of where to go,” if he left the train. 41 Vaughn also seemingly
suggests that the time and place of his conversation with Miller
were inherently coercive. He observes that Miller woke him
up at 5 a.m. and that he was in a “closed compartment” with
Miller “partially block[ing] the doorway.” 42 Those arguments
are without merit.
Vaughn was on a train when he spoke with Miller. As such,
his setting was no different than other transportation settings
where the U.S. Supreme Court has found that a custodial
interrogation or an unreasonable seizure does not necessarily
result even though a reasonable person would not feel free to
leave. Notably, in Berkemer v. McCarty, 43 the Court acknowl-
edged that “few motorists would feel free . . . to leave the
39
State v. Montoya, 304 Neb. 96, 109, 933 N.W.2d 558, 571-72 (2019)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 124 S. Ct. 2140, 158 L.
Ed. 2d 938 (2004)).
40
Connelly, supra note 36.
41
Brief for appellant at 19, 20.
42
Id. at 20.
43
Berkemer v. McCarty, 468 U.S. 420, 436, 104 S. Ct. 3138, 82 L. Ed. 2d
317 (1984).
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Cite as 314 Neb. 167scene of a traffic stop without being told they might do
so.” Nonetheless, it rejected the suggestion that any roadside
questioning of a person detained pursuant to a routine traffic
stop constitutes custodial interrogation within the scope of
Miranda. 44 In so doing, the Court observed two features of
traffic stops which mitigate the danger that the person ques-
tioned would be induced “‘to speak where he would not other-
wise do so freely.’” 45
First, detention pursuant to a traffic stop is “presumptively
temporary and brief.” 46 Second, the circumstances of the typi-
cal traffic stop are not such that the person detained feels
“completely at the mercy of the police”; the typical traffic stop
is at least somewhat public, and the person detained typically
confronts at most one or two officers. 47 Accordingly, the Court
reasoned that an ordinary traffic stop is “substantially less
‘police dominated’” than the kinds of interrogation at issue
in Miranda. 48
Similarly, in Florida v. Bostick, 49 the U.S. Supreme Court
observed that a passenger on a bus scheduled to depart would
not feel free to leave, but nonetheless rejected the defend­
ant’s claim that he was unreasonably seized in violation of
the Fourth Amendment. The defendant in Bostick argued
that police encounters are “much more intimidating” in the
“cramped confines of a bus,” because police “tower” over
seated passengers and there is “little room to move.” 50 He also
argued that a “reasonable bus passenger” would not have
44
Berkemer, supra note 43.
45
Id., 468 U.S. at 437 (quoting Miranda, supra note 35).
46
Id.47
Id., 468 U.S. at 438.
48
Id., 468 U.S. at 439.
49
Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L. Ed. 2d 389(1991).
50
Id., 501 U.S. at 435.
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Cite as 314 Neb. 167felt free to leave, “because there is nowhere to go on a bus”
and the bus was about to depart. 51
The Court disagreed, finding that the “mere fact that [the
defendant] did not feel free to leave the bus does not mean
that the police seized him.” 52 Instead, the Court observed,
the defendant would not have felt free to leave in any case,
because his bus was scheduled to depart. 53 The Court simi-
larly observed that the defendant’s movements were confined
as a “natural result” of being on the bus; it did not necessar-
ily reflect whether or not the police conduct was coercive. 54
As a result, the Court concluded that the appropriate inquiry
in such settings was not whether a reasonable person would
feel free to leave, but “whether a reasonable person would feel
free to decline the officers’ requests or otherwise terminate
the encounter.” 55
In light of Berkemer, Bostick, and related cases, we reject
Vaughn’s suggestion that he was necessarily in custody for
purposes of Miranda, even assuming that a reasonable person
would not have felt free to leave a train (or a cabin on a train)
briefly stopped in Omaha. Other factors indicate that Vaughn
was not in custody.
Previously, in State v. Rogers, 56 we noted the “large body
of case law . . . developed since Miranda” which has made
apparent “certain circumstances that are most relevant to the
custody inquiry.” Those circumstances include: (1) the loca-
tion of the interrogation and whether it was a place where
the defendant would normally feel free to leave; (2) whether
the contact with the police was initiated by them or by
the person interrogated, and, if by the police, whether the
51
Id.52
Id., 501 U.S. at 436.
53
Id.54
Id.55
Id.56
State v. Rogers, 277 Neb. 37, 57, 760 N.W.2d 35, 54 (2009).
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Cite as 314 Neb. 167defendant voluntarily agreed to the interview; (3) whether the
defendant was told he or she was free to terminate the inter-
view and leave at any time; (4) whether there were restrictions
on the defendant’s freedom of movement during the interroga-
tion; (5) whether neutral parties were present at any time dur-
ing the interrogation; (6) the duration of the interrogation; (7)
whether the police verbally dominated the questioning, were
aggressive, were confrontational, were accusatory, threatened
the defendant, or used other interrogation techniques to pres-
sure the suspect; and (8) whether the police manifested to the
defendant a belief that the defendant was culpable and that
they had the evidence to prove it. 57
Applying those factors here, it is true that Miller initiated
contact with Vaughn and never told Vaughn that he was free to
terminate the interview or leave. However, Miller was in a pub-
lic area on the train when he knocked on Vaughn’s door, and
he remained there throughout his conversation with Vaughn.
Vaughn was in his own room. It is unclear whether Miller
partially blocked the doorway. Vaughn asserts in his brief on
appeal that Miller did so. However, Miller testified at trial that
he did not. The room was small, but Vaughn does not allege
that Miller purported to impose any restrictions on his freedom
of movement within or outside of his room.
Miller testified that Vaughn agreed to speak with him, and
the exchange between them on the train prior to Vaughn’s
arrest was relatively brief. Only two law enforcement offi-
cers were present at the time of that exchange, and one of
those officers may have been outside Vaughn’s view. There
is no indication that law enforcement verbally dominated the
questioning; were aggressive, confrontational, or accusatory;
threatened Vaughn; or used other interrogation techniques to
pressure him. Nor is there any indication that law enforce-
ment manifested to Vaughn a belief that he was culpable
and that they had the evidence to prove it. Miller apparently
57
Rogers, supra note 56.
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Cite as 314 Neb. 167asked Vaughn about his travel plans, the luggage in his room,
and whether he owned the duffelbag, and then Miller arrested
him. Accordingly, we find that Vaughn was not subject to cus-
todial interrogation prior to his arrest.
2. Admission of Amtrak
Employee’s Statement
Next, Vaughn assigns multiple errors related to Miller’s
testimony about the Amtrak employee’s statement that Vaughn
owned the duffelbag. We begin with his argument that the dis-
trict court erred in overruling his motion in limine to exclude
that testimony.
(a) Overruling Vaughn’s
Motion in Limine
[18] A motion in limine is a procedural step to prevent prej-
udicial evidence from reaching the jury. 58 It is not the office of
a motion in limine to obtain a final ruling upon the ultimate
admissibility of the evidence. 59 Therefore, when a court over-
rules a motion in limine to exclude evidence, the movant must
object when the particular evidence is offered at trial in order
to predicate error before an appellate court. 60
[19] The record on appeal indicates that Vaughan objected
at trial when the State offered Miller’s testimony about the
Amtrak employee’s statement. Vaughn also apparently assigns,
restated, that the district court erred in permitting such hear-
say to be admitted at trial and permitting hearsay in violation
of the Confrontation Clause. Accordingly, we discuss those
assignments of error below. In contrast, an appellant who has
assigned only that the trial court erred in denying a motion in
limine has not triggered appellate review of the evidentiary
ruling at trial. 61
58
State v. Ferrin, 305 Neb. 762, 942 N.W.2d 404 (2020).
59
Id.60
Id.61
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Cite as 314 Neb. 167(b) Permitting Alleged Hearsay to
Be Admitted Into Evidence
Vaughn argues that the district court erred by “permit-
ting the admission of hearsay statements from an unnamed
Amtrak employee” that Vaughn owned the duffelbag. 62 Vaughn
objected to Miller’s testimony about that statement at trial on
hearsay grounds, but his objection was overruled. The State
counters that the statement was “not definitional hearsay in the
context provided.” 63 We agree with the State.
[20,21] Hearsay is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted. 64 Hearsay is
not admissible unless otherwise provided for in the Nebraska
Evidence Rules or elsewhere. 65 However, by definition, an
out-of-court statement is not hearsay if the proponent offers
it for a purpose other than proving the truth of the matter
asserted. 66 Thus, statements are not hearsay to the extent that
they are offered for context and coherence of other admissible
statements, and not for “the truth or the truth of the matter
asserted.” 67 Similarly, statements are not hearsay if the propo-
nent offers them to show their impact on the listener, and the
listener’s knowledge, belief, response, or state of mind after
hearing the statement is relevant to an issue in the case. 68
Here, the State offered Miller’s testimony about the Amtrak
employee’s statement for context and coherence and to show
the statement’s impact on Miller. Miller had previously tes-
tified that he observed a duffelbag without luggage tags,
sniffed it, and detected the odor of marijuana. And Miller
62
Brief for appellant at 21.
63
Brief for appellee at 35.
64
Elbert, supra note 6.
65
Id.
66
Id.
67
State v. Wood, 310 Neb. 391, 428, 966 N.W.2d 825, 854 (2021).
68
Elbert, supra note 6.
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Cite as 314 Neb. 167subsequently testified that he knocked on the door of Room
12, introduced himself to Vaughn, and asked Vaughn whether
Vaughn owned the duffelbag. Miller’s testimony that he asked
an Amtrak employee who owned the duffelbag, and was told
that it belonged to the man in Room 12, bridged those state-
ments. Specifically, it showed why Miller went to Room 12
to ask questions about the duffelbag and encountered Vaughn.
Additionally, out of an abundance of caution, the trial court
instructed the jury that the testimony as to what the Amtrak
employee said was being admitted not to prove the truth of the
matter asserted, but to give information as to why Miller went
to Room 12. As such, the district court did not err in admitting
the challenged testimony about the Amtrak employee’s state-
ment over Vaughn’s hearsay objections.
Vaughn also argues on appeal that the Amtrak employee’s
statement was more prejudicial than probative, because it
“directly related” to possession of the marijuana, an ele-
ment of the crime charged. 69 Vaughn sought to exclude, and
objected at trial to, Miller’s testimony about the Amtrak
employee’s statement on that basis, among others. However,
he does not assign that the district court erred in failing to
find that the testimony was more prejudicial than probative. 70
Also, as we explain below, the testimony was not unfairly
prejudicial insofar as it was cumulative of other evidence
of ownership.
(c) Inability to Confront
Amtrak Employee
Vaughn further argues that allowing the admission of hear-
say regarding his ownership of the duffelbag violated his rights
under the Confrontation Clause. Specifically, he argues that
the Amtrak employee’s statement was testimonial, because
69
Brief for appellant at 21.
70
State v. Miranda, 313 Neb. 358, 984 N.W.2d 261 (2023) (alleged error
must be both specifically assigned and specifically argued in brief of party
asserting error to be considered by appellate court).
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Cite as 314 Neb. 167the employee was “in the train car near the time that Miller
searched the [duffelbag]” and “likely would have known that
the conversation with Miller was for an investigation.” 71 That
argument is without merit.
As we have previously stated, the Amtrak employee’s state-
ment was not hearsay, because it was not offered to prove the
truth of the matter asserted. Accordingly, we need not reach
the issue of whether that statement is testimonial. “A statement
that is not hearsay raises no Confrontation Clause concerns,” 72
and the Confrontation Clause does not “bar the use of testimo-
nial statements for purposes other than establishing the truth of
the matter asserted.” 73
Moreover, although we find no error in admitting the state-
ment, the record in this case demonstrates that even if it was
error, the error was harmless. Vaughn maintains that the State’s
evidence that he possessed marijuana was “weak” without
Miller’s testimony about the Amtrak employee’s statement. 74
However, there was testimony and evidence that the contents
of the duffelbag were similar in their packaging and nature to
the contents of the suitcase that Miller and Pelster claimed to
have found in Vaughn’s room.
Specifically, the forensic chemist with the Douglas County
sheriff’s office testified that the duffelbag and the suitcase
both contained multiple heat-sealed black plastic bags, each
of which, in turn, contained a clear plastic bag “tied in a
knot with a green botanical substance within it.” Exhibits
10-A through 10-K and 12-A through 12-P illustrated the
71
Brief for appellant at 23.
72
Barrett v. Acevedo, 169 F.3d 1155, 1163 (8th Cir. 1999) (en banc). See,
also, Swain v. State, 2015 Ark. 132, 459 S.W.3d 283 (2015); Dednam v.
State, 360 Ark. 240, 200 S.W.3d 875 (2005); Hodges v. Com., 272 Va. 418,
634 S.E.2d 680 (2006).
73
Crawford v. Washington, 541 U.S. 36, 60 n.9, 124 S. Ct. 1354, 158 L. Ed.
2d 177 (2004).
74
Brief for appellant at 25.
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Cite as 314 Neb. 167similarities in packaging. And exhibit 5 also indicated the
similarities in packaging, as well as the similarities in contents
of the plastic bags whose contents were chemically tested.
In addition, Miller testified that Vaughn admitted during
their encounter on the train that Vaughn owned the duffelbag.
Even if Miller had not been allowed to testify as to why he
went to Room 12 and encountered Vaughn, Miller would still
have testified that Vaughn acknowledged ownership of the
duffelbag and suitcase. Also, Pelster testified similarly that
he and Miller found the suitcase in Room 12 after Vaughn’s
arrest and that he saw no one else present in or exiting
Room 12.
Accordingly, Miller’s testimony about the Amtrak employ-
ee’s statement was cumulative of other evidence that Vaughn
possessed marijuana. Thus, even if the Amtrak employee’s
statement was erroneously admitted at trial, the guilty ver-
dicts were surely unattributable to that evidence. 75 Any error
in admitting the statement was harmless beyond a reason-
able doubt. 76
(d) Not Granting Vaughn’s
Motion for Mistrial
In addition, Vaughn argues that the district court erred by
denying his motion for a mistrial. Vaughn asked the district
court to grant a mistrial after the admission of testimony from
Miller about the Amtrak employee’s statement that the duf-
felbag on the luggage rack outside Vaughn’s cabin belonged to
Vaughn. The district court overruled that motion, finding that
the statement was not hearsay. We cannot say the district court
abused its discretion in denying Vaughn’s request for a mistrial
based on the admission of that testimony.
[22,23] A mistrial is properly granted in a criminal case
where an event occurs during the course of trial which is
75
Cf. State v. Kidder, 299 Neb. 232, 908 N.W.2d 1 (2018).
76
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Cite as 314 Neb. 167of such a nature that its damaging effect cannot be removed
by proper admonition or instruction to the jury and thus pre-
vents a fair trial. 77 A defendant faces a higher threshold than
merely showing a possibility of prejudice when attempting
to prove error predicated on the failure to grant a mistrial. 78
The defendant must prove that the alleged error actually
prejudiced him or her, rather than creating only the possibility
of prejudice. 79
Vaughn argues that a mistrial was warranted because Miller’s
testimony about the Amtrak employee’s statement was hearsay
and, as such, should not have been admitted into evidence.
Vaughn also argues that Miller’s testimony about the Amtrak
employee’s statement violated the Confrontation Clause and
was more prejudicial than probative.
However, as we have previously discussed, Vaughn cannot
show that Miller’s statement was improperly admitted. The
statement was not hearsay and raises no Confrontation Clause
concerns. Moreover, Vaughn does not assign on appeal that the
district court erred in finding that the testimony was not more
prejudicial than probative.
3. Admission of Evidence
Not Chemically Tested
Vaughn further assigns that the district court abused its dis-
cretion when it denied his motion in limine to exclude evidence
and testimony regarding the marijuana that was not chemically
tested and “permitted the admission of untested marijuana
into evidence.” 80 If that assignment of error were construed
to concern only the district court’s ruling on the motion in
limine, there is nothing for us to review. As we previously
noted, an appellant who assigns only that the trial court erred
77
Trail, supra note 8.
78
Id.
79
Id.
80
Brief for appellant at 26.
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Cite as 314 Neb. 167in denying a motion in limine has not triggered appellate
review of the evidentiary ruling at trial. 81 However, even if
Vaughn’s assignment of error here is construed to concern the
district court’s decision overruling his objections at trial to
the evidence and testimony about the apparent marijuana that
was not chemically tested, it would still be without merit; we
cannot say that the district court abused its discretion in admit-
ting that evidence and testimony.
Vaughn argues that the evidence was not relevant. However,
as the trial court observed in its ruling on the motion in
limine, the 12 plastic bags apparently containing marijuana
whose contents were not chemically tested were described as
containing “green botanical substance[s]” and were found in
the suitcase with, and “packaged similarly” to, the 3 plastic
bags whose contents were chemically tested and found to have
THC. As such, they could be seen as relevant to the overall
“narrative of the allegations” against Vaughn, as the district
court found.
Vaughn also argues that the evidence and testimony were
more prejudicial than probative, particularly in light of Pelster’s
testimony that the “the sheer amount of marijuana that was
found, specifically 40 to 50 pounds . . . , demonstrated an
intent to distribute,” because it was unlikely to be consumed
by an individual “before it went bad.” 82 However, Vaughn did
not assign that the district court erred in overruling his objec-
tion at trial to the evidence and testimony on the grounds that
they were more prejudicial than probative. Further, Vaughn
acknowledges that only approximately 13.5 pounds of apparent
marijuana were not chemically tested. Over 30 pounds were
chemically tested and found to have greater than 1 percent
of TCH. And Miller and Pelster both testified that persons
with marijuana for personal use generally have, at most, 1
pound. Miller and Pelster also testified that persons with
81
Ferrin, supra note 58.
82
Brief for appellant at 27.
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Cite as 314 Neb. 167marijuana for personal use generally have rolling papers, pipes,
or other paraphernalia, none of which appear to have been in
evidence in the present case.
4. Excessive Sentence
of Imprisonment
As his final assignment of error, Vaughn claims that his
sentence of 4 to 6 years’ imprisonment for possession with
intent to distribute marijuana was excessive for an offense that
has no mandatory minimum sentence. Specifically, Vaughn
argues that his sentence was “primarily based on the nature of
the offense” and did not “adequately account” for mitigating
factors, including his ties to his family, his plans for further
education, and his experience growing up “surrounded by the
enticing allure of hip-hop culture.” 83 However, Vaughn does
not dispute that his sentence was within the statutory range for
a Class IIA felony. 84
[24-26] When sentences imposed within statutory limits are
alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion
in considering well-established factors and any applicable
legal principles. 85 When imposing a sentence, a sentencing
judge should 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 violence involved
in the commission of the crime. 86 However, the sentencing
court is not limited to any mathematically applied set of fac-
tors, but the appropriateness of the sentence is necessarily
a subjective judgment that includes the sentencing judge’s
83
Id. at 30.
84
See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022).
85
State v. Greer, 312 Neb. 351, 979 N.W.2d 101 (2022).
86
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Cite as 314 Neb. 167observations of the defendant’s demeanor and attitude and all
the facts and circumstances surrounding the defendant’s life. 87
In the present case, the district court ordered a presentence
investigation that detailed the factors the court was to consider
when imposing a sentence. Additionally, the court noted that it
had reviewed the presentence investigation in advance of the
sentencing hearing. Vaughan’s presentence investigation indi-
cated that he scored in the very high risk level for procriminal
attitude/orientation and in the high risk level for criminal his-
tory, education/employment, and companions.
Prior to pronouncing Vaughan’s sentence, the court did
observe that Vaughn “had over 50 pounds” of marijuana when
he was arrested. However, the court’s comments prior to sen-
tencing also touched on two of the primary mitigating factors
noted by Vaughn; namely, his close relationships with his fam-
ily, especially his grandmother, and his plans for further edu-
cation. Moreover, immediately prior to the court’s statements,
Vaughn and his counsel both made statements to the court
emphasizing Vaughn’s close family relationships and educa-
tional plans when requesting a term of probation or, alterna-
tively, a sentence of time served. For example, Vaughn’s coun-
sel stated that the presentence investigation report indicated
that Vaughn was a “caregiver” for his “ailing grandmother”
and that his “family support system” was one of his “greatest
strengths.” Counsel also stated that Vaughn planned to go back
to school. Vaughn then detailed his plans to transfer from a
petroleum engineering program in Louisiana to a music pro-
gram in Georgia. He also explained that he planned to obtain a
commercial driver’s license to support himself and his family
while in school.
On the other hand, the district court observed that Vaughn
was charged with possession of “some small amounts of drugs”
in Maryland, allegedly while the present case was pend-
ing. That circumstance could be seen to undercut Vaughn’s
87
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Cite as 314 Neb. 167claim that his denial of “having any issue with alcohol or
drug use” was a mitigating factor. 88 More important, the dis-
trict court found Vaughn less than credible, including in his
statements about his family and education. The district court
told Vaughn that “[he is] a hard man to believe,” apparently
because of the difficulty in reconciling his claims about his
closeness to and care for his family in Georgia with his con-
duct elsewhere. Accordingly, we cannot say that the district
court abused the “very wide discretion” 89 accorded to it when
sentencing Vaughn to 4 to 6 years’ imprisonment for posses-
sion with intent to distribute marijuana.
VI. CONCLUSION
For the foregoing reasons, we find no merit to Vaughn’s
assignments of error. Accordingly, we affirm the judgment of
the district court.
Affirmed.
88
Brief for appellant at 31.
89
State v. Rogers, 297 Neb. 265, 275, 899 N.W.2d 626, 634 (2017).