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STATE v. MALONE

Cite as 26 Neb. App. 121

State of Nebraska, appellee, v.

Kevin W. Malone, appell

___ N.W.2d ___

Filed July 24, 2018. No. A-17-726.

1. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such matters 

are for the finder of fact. The relevant question for an appellate court 

is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

2. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

3. Judges: Words and Phrases. A judicial abuse of discretion exists when 

the reasons or rulings of a trial judge are clearly untenable, unfairly 

depriving a litigant of a substantial right and denying just results in matters submitted for disposition.

4. Pleadings: Directed Verdict. A motion for judgment of acquittal is 

simply another name for a motion for directed verdict of acquittal.

5. Directed Verdict: Waiver. Where a defendant makes a motion for a 

directed verdict at the end of the State’s case, whether ruled upon or not, 

and the defendant thereafter presents evidence, the defendant has waived 

any error in connection with the motion for directed verdict made at the 

end of the State’s case.

6. Criminal Law: Pleadings: Directed Verdict. A motion for judgment 

of acquittal is a criminal defendant’s request, at the close of the government’s case or the close of all evidence, to be acquitted because there is 

no legally sufficient evidentiary basis on which a reasonable jury could 

return a guilty verdict.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/31/2018 09:08 AM CDT
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7. Motions to Dismiss: Directed Verdict. A motion to dismiss at the 

close of all the evidence has the same legal effect as a motion for 

directed verdict.

8. Pleadings: Motions to Dismiss: Directed Verdict. Whether styled as a 

motion for judgment of acquittal, motion for directed verdict, or motion 

to dismiss, these motions all have the same effect when used to challenge the sufficiency of the State’s evidence at the conclusion of the 

State’s case or the conclusion of the evidence.

9. Witnesses: Juries: Appeal and Error. The credibility and weight of 

witness testimony are for the jury to determine, and witness credibility 

is not to be reassessed on appellate review.

10. Convictions: Appeal and Error. In determining whether the evidence 

is sufficient to sustain a conviction in a jury trial, an appellate court 

does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented to the 

jury, which are within the jury’s province for disposition.

11. Criminal Law: Motor Vehicles: Words and Phrases. Recklessness, 

for purposes of Neb. Rev. Stat. § 60-6,213 (Reissue 2010), has been 

defined as the disregard for or indifference to the safety of another or for 

the consequences of one’s act.

12. Sentences. When imposing a sentence, the sentencing court should customarily consider 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 violence 

involved in the commission of the offense. However, the sentencing 

court is not limited to any mathematically applied set of factors.

13. ____. 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.

Appeal from the District Court for Douglas County: Shell

R. Stratman, Judge. Affir

William F. McGinn, of McGinn, Springer & Noethe, P.L.C., 

for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Pirtle, Riedmann, and Bishop, J
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Pirtle, Judge

INTRODUCTION

Kevin W. Malone appeals his convictions and sentences 

for motor vehicle homicide and manslaughter in the district 

court for Douglas County. He argues that the evidence was 

insufficient to support guilty verdicts on the charges and that 

his sentences are excessive. Based on the reasons that follow, 

we affirm.

BACKGROUND

On March 10, 2017, Malone was charged by an amended 

information with count 1, motor vehicle homicide, a Class II 

felony; count 2, manslaughter, a Class IIA felony; count 3, 

leaving the scene of a personal injury accident resulting in 

serious bodily injury or death, a Class III felony; and count 4, 

driving without an ignition interlock device, a Class I misdemeanor. The charges arose from a traffic accident in which 

Malone’s car collided with Justin Hart’s motorcycle, resulting 

in Hart’s death. Malone pled not guilty to all four charges.

A jury trial began on May 1, 2017. The evidence at trial 

was as follows: On August 31, 2016, at approximately 7:25 

p.m., Malone was traveling eastbound on West Center Road 

in Omaha, Nebraska, in a black Nissan 350Z sports car when 

he pulled into the left-hand turn lane to turn north onto 140th 

Street. The traffic light controlling Malone’s lane displayed a 

red arrow, which meant Malone was not allowed to turn. Hart 

was traveling westbound on West Center Road and had a green 

traffic light. With his light still red, Malone pulled into the 

nearest westbound lane of West Center Road to turn left, just 

as Hart was approaching the intersection on his motorcycle. 

Hart applied his brakes and tried to “lay his bike down” to 

avoid the collision but was unsuccessful. Hart collided with 

the rear passenger’s side of Malone’s car and was ultimately 

separated from his motorcycle. Hart landed face down on 

the road, approximately 6 feet from Malone’s car, and Hart’s 

motorcycle landed in the median between the eastbound lanes 
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and the left-hand turn lane. Hart sustained massive internal 

injuries during the collision and was declared dead after he 

arrived at a hospital. His cause of death was “blunt trauma to 

the head, chest, and abdomen.”

The accident was witnessed by several individuals, some of 

whom attempted to render aid to Hart. An off-duty paramedic 

and an individual who was a respiratory therapist began administering CPR. The off-duty paramedic observed blood coming 

out of Hart’s mouth with each compression, and he was unable 

to find a pulse.

As the two individuals were administering CPR to Hart, 

Malone exited his car and walked over to their location. He 

knelt down next to Hart’s body and started to perform “mouthto-mouth,” which struck the off-duty paramedic as odd, given 

the amount of blood coming from Hart’s mouth. Both the offduty paramedic and the respiratory therapist told Malone to 

stop, but he did it a second time. Malone then wiped off his 

mouth, slowly stood up, and walked away.

By this time, several people had called the 911 emergency 

dispatch service, and both fire department and police department employees were on their way to the scene. In addition, 

several witnesses, including Karla Villatoro, were trying to 

identify the driver of the Nissan. As Villatoro was looking for 

identification inside the Nissan, Malone walked around the rear 

of the Nissan and picked up some car parts off the ground and 

placed them in the back seat of the car. Villatoro asked Malone 

if the car belonged to him, and he replied that it did. Malone 

then got into the driver’s seat, and Villatoro asked him what he 

was doing. Malone told her he was going to move his car out 

of the way. Villatoro instructed Malone to move his car to a 

certain place and to stay there.

Malone fumbled with his keys as he placed them in the 

ignition. After he started the car, he began to move it while 

holding the driver’s side door open with his arm and his 

foot hanging out of the car. Malone drove a short distance 

and stopped briefly, but then started driving again and left 
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the scene of the accident. Malone’s car was smoking as he 

drove away.

Officer Stephen Venteicher of the Omaha Police Department 

arrived on the scene moments later, and several people told 

him that the driver of the car involved in the collision “just 

took off.” Venteicher made contact with Villatoro, who 

described the car and told him the direction Malone was 

headed. Venteicher activated his emergency lights and initiated 

a pursuit.

After Venteicher began his pursuit, he saw a white cloud 

of smoke dissipating in the air. He followed the trail of 

smoke, which led him into a residential neighborhood. He soon 

observed that the Nissan was in front of him and that it was 

swerving as it drove down the road. Venteicher activated his 

sirens, in addition to the emergency lights which had already 

been activated. Malone slowed down and stayed to the right 

but did not stop. Venteicher then pulled up next to the driver’s 

side door and “screamed” at Malone to pull over and stop. 

Malone did not appear startled, but, rather, rolled his head 

slowly to the left toward Venteicher and then slowly back to 

the right before finally bringing his car to a stop.

Venteicher parked next to the Nissan, and Malone immediately said, “I just thought it would be best if I got my 

car home.” Venteicher removed Malone from the car, placed 

him face down on the ground, and handcuffed him. When 

Venteicher requested identification, Malone said his license 

was in his wallet. Venteicher retrieved Malone’s wallet and 

identified him by an ignition interlock permit. Notably, there 

was no ignition interlock device installed on the Nissan. 

Venteicher also discovered that the license plates on the Nissan 

were expired. Venteicher then advised dispatch that he had the 

suspect in custody.

While Malone was still lying on the ground, he repeatedly 

stated, “[H]e just came out of nowhere. I tried to help, but I 

just thought it would be best to get my car home.” Venteicher 

helped Malone to his feet and noticed that he had blood on his 
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hands, his shirt, and his chin. As Malone explained that the 

blood belonged to the motorcycle driver, Venteicher detected 

a faint odor of alcohol on Malone’s breath and noticed his 

eyes were watery and his speech was mumbled. Venteicher, 

who had been a police officer for 25 years and had conducted 

more than 1,000 driving under the influence (DUI) investigations, suspected Malone may be impaired and decided to begin 

a DUI investigation. Venteicher asked Malone if he had been 

drinking, and Malone admitted that he had consumed two beers 

earlier in the day.

Following some preliminary questions, Venteicher administered a series of field sobriety tests to Malone. Malone was 

able to correctly recite the alphabet when asked, but his speech 

was mumbled. Malone showed signs of impairment on the 

remaining tests. Specifically, four out of six clues or indicators 

on the horizontal gaze nystagmus (HGN) indicated impairment, Malone was unable to count backward from 92 to 78, 

he was unable to touch his nose with his fingertip, six of eight 

clues on the nine-step walk-and-turn indicated impairment, 

and Malone failed to follow instructions on the “Romberg” 

balance test. In addition, Venteicher noted Malone was swaying slightly during both the finger-to-nose test and the balance 

test. Based on his observations, Venteicher concluded Malone 

was impaired to the extent that he could not safely operate a 

motor vehicle.

Shortly after Venteicher finished administering the field 

sobriety tests to Malone, Officer Matthew Kelly, of the Omaha 

Police Department, arrived. Like Venteicher, Kelly had conducted more than 1,000 DUI investigations during his 25-year 

career as a police officer. In addition, he was a certified drug 

recognition expert (DRE) and had conducted approximately 

150 DRE examinations. After speaking to Venteicher, Kelly 

made contact with Malone. Kelly asked Malone if he had taken 

any drugs, and Malone stated he was taking a prescription drug 

called Celexa. He also admitted that he had consumed two 

beers earlier in the day.
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Kelly administered the HGN test to Malone and observed 

the same four clues as Venteicher, which suggested to Kelly 

that Malone could be under the influence of a central nervous 

system depressant (CNSD), an inhalant, or a dissociative anesthetic. Kelly decided to transport Malone to Douglas County 

Corrections to conduct a DRE examination.

Upon arrival at Douglas County Corrections, Malone agreed 

to submit to the DRE examination and provide a urine sample. 

He also submitted to a chemical breath test, which showed he 

did not have any alcohol in his system. Kelly again questioned 

Malone about any prescription drugs he was taking. Malone 

stated he was taking Celexa, as well as medications for high 

blood pressure and depression.

Kelly then began the 12-step DRE examination. Malone 

displayed several signs indicative of impairment, including the 

same four out of six clues on the HGN that he had seen when 

Malone did the test earlier, lack of convergence (i.e., he was 

unable to cross his eyes), four out of eight clues on the walkand-turn test, two out of four clues on the one-leg stand, and an 

inability to accurately touch his nose with his fingertip (missing three out of six attempts). Malone did not show any signs 

of impairment on the balance test. Malone’s blood pressure and 

pulse rates were also elevated, and his pupils were dilated. His 

muscle tone appeared normal.

Based on Malone’s driving behavior and his performance 

during the DRE examination, Kelly concluded that Malone 

was under the influence of a CNSD and cannabis and that he 

was impaired to an extent he was unable to safely operate a 

motor vehicle. Kelly stated that Malone’s driving behavior that 

indicated impairment included the following: his claim that his 

light was green, which was not possible based on the cycle of 

the light; the fact that Malone left the scene to get his car home; 

and Malone’s actions at the scene. The indicators from the field 

sobriety tests that led Kelly to conclude that Malone was under 

the influence of a CNSD were Malone’s HGN test results, 

his lack of convergence, and his performance on the divided 
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attention tests (walk-and-turn, one-leg stand, and finger-tonose test). The indicators for cannabis included Malone’s lack 

of convergence, dilated pupils, and elevated blood pressure 

and pulse rates. Kelly also noted that some antidepressants can 

elevate a person’s pulse rate and cause dilated pupils.

At the conclusion of the DRE examination, Kelly collected 

a urine sample from Malone and sent it to the Nebraska 

State Patrol crime laboratory for testing. Malone’s urine 

tested positive for four different CNSD’s, but negative for 

cannabinoids. The CNSD’s present in Malone’s urine were 

zolpidem (also known as Ambien), diphenhydramine (also 

known as Benadryl), clonazepam (also known as Klonopin), 

and citalopram (also known as Celexa). When asked about 

the absence of cannabinoids in Malone’s urine, Kelly again 

explained that some antidepressants can cause elevated pulse 

rates and blood pressure, as well as dilated pupils, similar 

to the effects of cannabinoids. In addition, Kelly testified 

that the presence of multiple drugs in a person’s system can 

have an “additive effect,” meaning the drugs can interact in 

ways that enhance impairment. In this case, Malone had four 

CNSD’s in his urine and admitted to drinking alcohol, which 

is also a CNSD.

At the close of the State’s evidence, Malone made a motion 

for judgment of acquittal, alleging the State had not made a 

prima facie case against him. The trial court denied the motion.

Malone testified in his own defense. He admitted that the 

accident was his fault but denied that he was impaired when he 

was driving. He questioned the accuracy of Venteicher’s and 

Kelly’s testimony about his performance on the field sobriety 

tests. Malone also testified that after the accident, he tried to 

help Hart by doing mouth-to-mouth resuscitation. He also testified that when he got back in his car after the accident, he was 

just going to move it out of the way, but then he panicked and 

drove off.

Malone stated that he had another vehicle at his home 

equipped with an ignition interlock device, which device he 
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was required to have in order to drive. He testified that on 

the day of the accident, he was driving the Nissan because he 

was taking it to a carwash to have it cleaned so he could try 

to sell it.

Malone offered into evidence the labels from his prescriptions for zolpidem, citalopram, and clonazepam, all of which 

carried the same warning: “May cause drowsiness. Alcohol 

may intensify this effect. Use care when operating a vehicle, 

vessel (e.g., boat), or machinery.”

Malone also offered the testimony of a professor of pathology, who testified that urine testing alone cannot prove that a 

drug is present in a person’s bloodstream or in what amount. 

He explained that the amount of drugs in a person’s urine does 

not have a correlation to the amount of drugs in the bloodstream. He also testified that the presence of a drug in urine 

does not prove that the drug caused the person to be impaired. 

He acknowledged on cross-examination that field sobriety 

tests and DRE examinations are valid methods for determining 

whether a person is impaired by drugs.

At the conclusion of all the evidence, Malone again made 

a motion for judgment of acquittal, which motion the trial 

court denied. The case was submitted to the jury, and it 

returned verdicts of guilty on all four counts. The district 

court accepted the jury’s verdicts and adjudged Malone guilty 

of the offenses.

Malone’s sentencing hearing was held on June 28, 2017. 

The State offered a certified copy of Malone’s conviction for 

DUI, third offense, into evidence. The district court found the 

conviction valid for enhancement purposes, making Malone’s 

conviction for motor vehicle homicide a Class II felony.

The district court then sentenced Malone to 40 to 50 years’ 

imprisonment on count 1, 20 to 20 years’ imprisonment on 

count 2, 4 years’ imprisonment on count 3, and 1 year’s imprisonment on count 4. The district court ordered the sentences to 

run concurrently and also revoked Malone’s driver’s license for 

15 years.
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ASSIGNMENTS OF ERROR

Malone assigns, restated, that the trial court erred in (1) 

denying his motion for directed verdict at the conclusion of 

the State’s evidence and failing to grant a judgment of acquittal at the close of his case on counts 1 and 2 and (2) imposing 

excessive sentences.

STANDARD OF REVIEW

[1] In reviewing a criminal conviction for a sufficiency of 

the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 

An appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, or reweigh the evidence; 

such matters are for the finder of fact. The relevant question 

for an appellate court is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt. State v. Mora, 298 Neb. 185, 903 

N.W.2d 244 (2017).

[2,3] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court. State v. Dyer, 298 Neb. 82, 902 N.W.2d 687 (2017). 

A judicial abuse of discretion exists when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a 

litigant of a substantial right and denying just results in matters submitted for disposition. Id.

ANALYSIS

Motion for Directed Verdict 

and Judgment of Acquittal.

[4] Malone assigns that the trial court erred in overruling his motion for directed verdict at the conclusion of the 

State’s evidence and failing to grant a judgment of acquittal at the close of all the evidence on counts 1 and 2. At the 

close of the State’s evidence, Malone motioned for a judgment 

of acquittal, rather than a directed verdict, as he refers to in 

his assignment of error. However, a motion for judgment of 
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acquittal is simply another name for a motion for directed verdict of acquittal. State v. Combs, 297 Neb. 422, 900 N.W.2d 

473 (2017).

[5-8] Malone has waived error in relation to the ruling on 

a directed verdict by presenting evidence after his motion. 

See State v. Burke, 23 Neb. App. 750, 756, 876 N.W.2d 922, 

928 (2016), citing State v. Rodriguez, 6 Neb. App. 67, 569 

N.W.2d 686 (1997) (“‘where a defendant makes a motion for 

a directed verdict at the end of the State’s case, whether ruled 

upon or not, and the defendant thereafter presents evidence, 

the defendant has waived any error in connection with the 

motion for directed verdict made at the end of the State’s 

case’”). However, Malone may proceed on his failure to 

grant a judgment of acquittal at the close of all the evidence 

assignment of error, as that is essentially a sufficiency of the 

evidence argument. A motion for judgment of acquittal is “‘[a] 

criminal defendant’s request, at the close of the government’s 

case or the close of all evidence, to be acquitted because there 

is no legally sufficient evidentiary basis on which a reasonable 

jury could return a guilty verdict.’” State v. Combs, 297 Neb. 

at 429, 900 N.W.2d at 480, quoting Black’s Law Dictionary 

1170 (10th ed. 2014). As previously stated, a motion for 

judgment of acquittal is simply another name for a motion 

for directed verdict of acquittal. Id. And a motion to dismiss 

at the close of all the evidence has the same legal effect as 

a motion for directed verdict. Id. Thus, whether styled as a 

motion for judgment of acquittal, motion for directed verdict, 

or motion to dismiss, these motions all have the same effect 

when used to challenge the sufficiency of the State’s evidence 

at the conclusion of the State’s case or the conclusion of the 

evidence. Id.

Malone first argues that the evidence was insufficient to 

convict him of motor vehicle homicide. A person commits 

motor vehicle homicide when he or she causes the death of 

another unintentionally while engaged in the operation of a 

motor vehicle in violation of the law of the State of Nebraska 
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or in violation of any city or village ordinance. Neb. Rev. 

Stat. § 28-306(1) (Reissue 2016). Pursuant to § 28-306(3)(c), 

if the proximate cause of the death of another is the operation 

of a motor vehicle in violation of Neb. Rev. Stat. § 60-6,196 

(Reissue 2010) (operating motor vehicle while under influence 

of alcoholic liquor or drugs) or Neb. Rev. Stat. § 60-6,197.06 

(Cum. Supp. 2016) (operating motor vehicle during revocation period), motor vehicle homicide is a Class II felony if the 

defendant has a prior conviction for a violation of § 60-6,196 

or § 60-6,197.06.

[9,10] The State had to prove that Malone was engaged in 

the operation of a motor vehicle while under the influence of 

alcoholic liquor or drugs and that his operation of the motor 

vehicle while under the influence of alcoholic liquor or drugs 

was the proximate cause of Hart’s death. Malone argues that 

the evidence was insufficient to show that he was under the 

influence of alcohol or drugs at the time of the collision. 

He contends that the testimony of Venteicher and Kelly was 

inconsistent and unreliable, or in other words, that their testimony was not credible. However, it is well established that the 

credibility and weight of witness testimony are for the jury to 

determine, and witness credibility is not to be reassessed on 

appellate review. State v. France, 279 Neb. 49, 776 N.W.2d 

510 (2009). Moreover, in determining whether the evidence 

is sufficient to sustain a conviction in a jury trial, an appellate court does not resolve conflicts in the evidence, pass on 

the credibility of witnesses, evaluate explanations, or reweigh 

the evidence presented to the jury, which are within the jury’s 

province for disposition. State v. Hudson, 268 Neb. 151, 680 

N.W.2d 603 (2004).

Venteicher and Kelly were both experienced police officers, and they individually administered field sobriety tests 

to Malone. They both observed multiple signs indicative of 

impairment, and both concluded Malone was impaired.

After Venteicher stopped Malone and removed him from 

his car, Venteicher suspected that Malone may be impaired 
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because there was a faint odor of alcohol on his breath, 

his eyes were watery, and his speech was mumbled. After 

Malone admitted he had consumed two beers earlier in the 

day, Venteicher administered a series of field sobriety tests to 

Malone. Malone correctly recited the alphabet, although his 

speech was mumbled, but showed signs of impairment on the 

remaining tests. Malone was also swaying slightly during two 

of the tests. Venteicher concluded Malone was impaired to an 

extent that he could not safely operate a motor vehicle.

Kelly, a certified DRE, made contact with Malone after 

Venteicher conducted his field sobriety tests. Malone told 

Kelly he was taking a prescription drug called Celexa and 

admitted to consuming two beers earlier in the day. Kelly 

administered the HGN, and he observed the same four clues of 

impairment that Venteicher had observed, which suggested to 

him that Malone could be under the influence of a CNSD, an 

inhalant, or one of the “dissociative anesthetics.”

Kelly subsequently conducted a full DRE examination and 

had Malone provide a urine sample. When asked about prescription medication, Malone stated he was taking medication for high blood pressure, as well as Celexa and another 

antidepressant. During the DRE examination, Malone showed 

several signs indicative of impairment. His blood pressure 

and pulse rate were also elevated and his pupils were dilated. 

Based on Malone’s driving behavior and his performance during the DRE examination, Kelly concluded that Malone was 

under the influence of a CNSD and cannabis and that Malone 

was unable to safely operate a motor vehicle.

Malone’s urine sample tested positive for four CNSD’s, 

but negative for cannabinoids. Kelly explained that some 

antidepressants can cause symptoms similar to those caused 

by cannabinoids. He also testified multiple drugs in a person’s system can have an “additive effect,” thereby enhancing 

impairment.

Malone’s own witness, the professor of pathology, acknowledged on cross-examination that field sobriety tests and DRE 
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examinations are valid methods for determining whether a 

person is impaired by drugs.

The testimony of Venteicher and Kelly, as well as Malone’s 

behavior after the accident, was sufficient evidence to support a finding that Malone was under the influence of drugs 

at the time of the collision with Hart. We conclude the evidence was sufficient to support Malone’s conviction for motor 

vehicle homicide.

Malone also argues that the evidence was insufficient to 

convict him of manslaughter. “A person commits manslaughter 

if he or she . . . causes the death of another unintentionally 

while in the commission of an unlawful act.” Neb. Rev. Stat. 

§ 28-305 (Reissue 2016). The alleged unlawful act was reckless driving. Malone contends that the evidence failed to show 

that he recklessly operated a motor vehicle.

[11] Reckless driving occurs when any person drives a 

motor vehicle in such a manner as to indicate an indifferent 

or wanton disregard of the safety of persons or property. See 

Neb. Rev. Stat. § 60-6,213 (Reissue 2010). Recklessness, for 

purposes of § 60-6,213, has been defined as the disregard for 

or indifference to the safety of another or for the consequences 

of one’s act. See State v. Green, 238 Neb. 475, 471 N.W.2d 

402 (1991).

Malone argues that the evidence fails to show that he acted 

with disregard or indifference for the safety of others. He 

contends that he was not speeding, not driving erratically, and 

did not “blow through” the traffic signal. Brief for appellant 

at 12. Rather, the evidence showed that he had stopped at the 

intersection and “slowly inched his vehicle into the intersection looking for an opportunity to turn.” Id. Malone acknowledged that he violated a traffic law by turning left when the 

traffic light for his lane was red, but stated that he mistakenly 

“thought he had the green light to turn and was observing the 

traditional right of way rule.” Id.

Malone drove his car while impaired by his medication, 

and he disregarded a red light—turning into oncoming traffic 
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and causing a collision resulting in Hart’s death. However, the 

evidence also established that Malone chose to drive a motor 

vehicle which he was not authorized to drive because it was 

not equipped with an ignition interlock device. He had another 

vehicle at his home equipped with an ignition interlock device. 

He also disregarded the warning labels on his prescription 

medications, all of which warned that they may cause drowsiness, that alcohol may intensify the effect, and that care must 

be taken when operating a motor vehicle. We conclude that the 

evidence was sufficient for the jury to conclude that Malone’s 

conduct was “reckless,” and thereby sufficient to support his 

conviction for manslaughter.

Excessive Sentences.

Malone next argues that his sentences for counts 1 and 2 

are excessive. The court sentenced Malone to 40 to 50 years’ 

imprisonment for the motor vehicle homicide conviction and 

20 to 20 years’ imprisonment for the manslaughter conviction, with the sentences to run concurrently. Motor vehicle 

homicide is a Class II felony, punishable by a maximum sentence of 50 years’ imprisonment and a minimum sentence of 1 

year’s imprisonment. § 28-306(3)(c); Neb. Rev. Stat. § 28-105 

(Reissue 2016). Manslaughter is a Class IIA felony, punishable 

by a maximum of 20 years’ imprisonment, with no minimum 

sentence. § 28-305; § 28-105. The sentences imposed by the 

district court were within the statutory limits. An appellate 

court will not disturb a sentence imposed within the statutory 

limits absent an abuse of discretion by the trial court. State v. 

Dyer, 298 Neb. 82, 902 N.W.2d 687 (2017).

Malone argues that the court abused its discretion in sentencing because it had a personal bias against him. At the 

sentencing hearing, the court discussed that it had previously 

sentenced Malone to probation for DUI, third offense. The 

court stated that the presentence investigation at that time did 

not include all the specifics of Malone’s prior DUI’s and that 

if it had, the court would have likely sentenced him differently. 
- 136 -

Nebraska Court of Appeals Advance S

26 Nebraska Appellate Repor

STATE v. MALONE

Cite as 26 Neb. App. 121

The court stated that the presentence investigation before it in 

this case included all the specifics of his past crimes. The court 

further addressed Malone’s past behavior and his continuous 

effort to make excuses for himself rather than taking responsibility for his actions.

[12,13] When imposing a sentence, the sentencing court 

should customarily consider 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 violence involved in the commission of the offense. However, the sentencing court is not 

limited to any mathematically applied set of factors. State v. 

Mora, 298 Neb. 185, 903 N.W.2d 244 (2017). 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. Id.

Although the court discussed Malone’s past criminal history and behavior at sentencing, it did not take anything inappropriate into consideration nor does that record indicate any 

bias against Malone that affected sentencing. The court stated 

that it had reviewed the presentence investigation and that 

it had considered the above-mentioned factors. We conclude 

that the trial court did not abuse its discretion in the sentences 

it imposed for the motor vehicle homicide and manslaughter convictions.

CONCLUSION

We conclude that there was sufficient evidence to support 

guilty verdicts on the charges of motor vehicle homicide and 

manslaughter and that the sentences for these convictions are 

not excessive. Accordingly, the judgment of the district court 

is affirmed.

Affirme