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STATE v. KNIGHT

Cite as 31 Neb. App. 176

State of Nebraska, appellee, v. 

Jesse O. Knight, appellant.

___ N.W.2d ___

Filed July 12, 2022. No. A-21-158.

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. Words and Phrases. Recklessness is the disregard for or indifference to 

the safety of another or for the consequences of one’s act.

3. Criminal Law: Motor Vehicles. Reckless driving lies somewhere 

between careless driving and willful reckless driving.

4. ____: ____. Incidents of willful reckless driving commonly involve 

some combination of a high level of speeding that is particularly 

dangerous based on the circumstances, such as speeding on a heavily 

populated roadway; fleeing arrest; hitting other vehicles or property (or 

the threat of this occurring); road rage; driving through stop signs and 

red lights; or other forms of particularly erratic driving. On the other 

hand, reckless driving cases often involve less extreme actions, such as 

moderate speeding, erratic lane changes, and other forms of irresponsible driving.

Appeal from the District Court for Sarpy County: Michael 

A. Smith, Judge. Affirmed.

Joshua W. Weir, of Black & Weir Law Offices, L.L.C., for 

appellant.

Nebraska Supreme Court Online Library

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

07/19/2022 01:05 AM CDT
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STATE v. KNIGHT

Cite as 31 Neb. App. 176

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

Pirtle, Chief Judge, and Riedmann and Welch, Judges.

Pirtle, Chief Judge.

INTRODUCTION

Jesse O. Knight appeals from his convictions of motor 

vehicle homicide by reckless driving and reckless driving. The 

sole issue on appeal is whether the evidence was sufficient for 

the jury to find that Knight was guilty of driving recklessly, 

as opposed to the lesser-included offense of driving carelessly. 

For the following reasons, we affirm.

BACKGROUND

On November 16, 2020, the State filed an amended information charging Knight with two counts of motor vehicle 

homicide by reckless driving, in violation of Neb. Rev. Stat. 

§ 28-306(3)(a) (Reissue 2016), and one count of reckless driving, in violation of Neb. Rev. Stat. § 60-6,213 (Reissue 2021). 

The amended information further charged Knight with one 

count of operating a commercial motor vehicle with a canceled 

commercial motor vehicle license, in violation of Neb. Rev. 

Stat. § 60-4,141(1) (Reissue 2021); however, Knight pleaded 

guilty to that charge and does not challenge that conviction 

on appeal.

A jury trial on the State’s amended information was held 

over the course of 3 days from November 18 to 20, 2020. The 

parties entered into a stipulated set of facts establishing that 

on August 7, 2019, Knight was operating a loaded Kenworth 

dump truck traveling eastbound on Highway 370 in Sarpy 

County, Nebraska, when he collided with vehicles stopped at 

the red traffic light located at the intersection of Highway 370 

and 192d Street. Two children were killed in the collision, and 

Knight’s “unlawful operation of a motor vehicle was the proximate cause of [death].” Furthermore, Knight caused the deaths 

of the two children “unintentionally while engaged in the 
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STATE v. KNIGHT

Cite as 31 Neb. App. 176

operation of a motor vehicle in violation of the law of the State 

of Nebraska.” Further stipulations will be discussed below, but 

suffice it to say that Knight stipulated he was guilty of motor 

vehicle homicide in violation of § 28-306(1). The only question submitted to the jury was whether Knight had been driving recklessly and was thus guilty of the aggravated offense 

of motor vehicle homicide by reckless driving described under 

§ 28-306(3)(a).

In addition to the above, the parties further stipulated to 

the following facts: The traffic lights at the intersection of 

Highway 370 and 192d Street were fully operational and turned 

red as Knight approached the intersection. There were yellow 

warning signals placed on both sides of eastbound Highway 

370 approximately 648 feet before the intersection. The yellow 

warning signals contained a sign advising drivers to “‘prepare 

to stop when [yellow lights attached are] flashing,’” and the 

attached yellow lights were flashing when Knight passed the 

warning signals. There were two vehicles ahead of Knight’s 

dump truck in the right lane of eastbound Highway 370. Both 

vehicles came to a stop at the intersection of Highway 370 and 

192d Street and remained stopped as Knight approached the 

intersection. The first vehicle to stop at the intersection was 

a Honda Accord with one occupant, and the second vehicle 

was a Toyota Sienna with five occupants. The posted speed 

limit was 55 miles per hour, and Knight’s vehicle initially collided with the Toyota Sienna while traveling at “a minimum 

[speed] of 47 miles per hour,” ultimately killing two of the 

five occupants. Knight received a phone call at 9:32:13 a.m. 

which lasted 13 minutes 23 seconds, indicating that the call 

was ended at 9:45:36 a.m. The first 911 emergency dispatch 

service call following the collision was received by dispatch 

at 9:47:21 a.m., and the eyewitness who placed the call estimated that he made the call between 30 seconds and 1 minute 

after the collision. This estimate places the collision between 

9:46:21 a.m. and 9:46:51 a.m., approximately 1 minute after 

Knight ended the 13-minute phone call. Finally, there were no 
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STATE v. KNIGHT

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signs that Knight was under the influence of any intoxicants at 

the time of the collision.

At trial, the State adduced additional evidence relevant 

to whether Knight operated his vehicle in a reckless manner. Photographs of the scene depict the pertinent section of 

Highway 370 as a flat and straight stretch of road. Moreover, 

photographs taken shortly after the collision depict clear and 

sunny weather conditions on the day in question. Multiple eyewitnesses testified that Knight’s dump truck showed no signs 

of slowing down or taking evasive action as it approached the 

two vehicles stopped at the intersection, causing the witnesses 

to fear a collision was imminent.

A Sarpy County sheriff’s deputy conducted a search of 

Knight at the scene and testified that Knight did not possess any device for hands-free cell phone use. Another Sarpy 

County sheriff’s deputy spoke with Knight at the scene and 

testified that Knight told him that he “saw the red light and saw 

the vehicles stopped, and he hit the brakes but nothing happened.” That deputy later clarified that Knight said not that he 

saw the light turn red, but that he “saw the red light.”

A Sarpy County sheriff’s investigator testified that he analyzed data from Knight’s cell phone using “Cellbrite” software, 

which was the basis for the stipulated facts related to the 

13-minute phone call. The investigator testified that the software collects data such as call logs, internet history, and text 

messages, but that the data collected from Knight’s cell phone 

would not show whether he was otherwise distracted by his 

phone. On cross-examination, the investigator confirmed that 

the software report also would not indicate whether Knight was 

using the speaker function on the cell phone.

Shawn Reeh worked as a part-time mechanic for the company that owned the Kenworth dump truck Knight was driving, and he testified that he was responsible for inspecting 

and maintaining the truck. Reeh testified that he conducted 

yearly inspections on the truck, the most recent of which 

occurred in March 2019. The State submitted Reeh’s annual 
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STATE v. KNIGHT

Cite as 31 Neb. App. 176

inspection reports for the years 2016 to 2019, and Reeh testified at length regarding the manner in which he inspected and 

maintained the brake system on the truck. In addition to the 

yearly inspections, Reeh testified he also conducted periodic 

inspections on the truck roughly once every 2 weeks. While 

Reeh could not recall the precise day on which he conducted 

the most recent inspection on the truck, he testified that it 

would have been within 2 to 3 weeks of the accident.

Reeh testified that the truck was equipped with an airbrake 

system which uses compressed air to disengage the emergency 

or parking brakes and engage the “service brakes,” the latter of 

which operate when the driver presses the brake pedal. Reeh 

testified that the brake system is built with redundancies such 

that if there were a catastrophic loss of air pressure in the system, then the emergency brake would automatically engage to 

stop the truck. Reeh also noted that the system’s air compressor 

is capable of coping with minor air leaks in the system and that 

“it would have to be a large leak” for a driver to notice a loss 

of function in the service brakes.

Trooper Cody McGee of the Nebraska State Patrol conducted a postcrash inspection on the truck, and the State 

submitted numerous photographs taken by McGee during his 

inspection. One such photograph showed a log of Knight’s 

trips on the morning in question, which log indicated that 

Knight was on his second or third trip of the day. McGee also 

discussed how the towing company had to “cage” the brakes 

to tow the truck from the scene, indicating that the emergency 

brakes were operational and engaged after the crash. McGee 

noted a number of “violations,” which he referred to as either 

“pre-crash” or “post-crash.” For example, McGee testified 

that he discovered a “small leak” in an airhose that he marked 

as a “pre-crash violation”; however, he added that he “could 

not definitively say” whether it was precash or postcrash. In 

any case, McGee testified that in his experience, small leaks 

such as that do not cause catastrophic brake failure. McGee 

opined that even if this minor leak was a precrash violation, 
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STATE v. KNIGHT

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it would not have had any impact on the functionality of the 

service brakes. In contrast, McGee testified that he also discovered a “broken air line,” which he identified as a postcrash 

violation that would have caused catastrophic air loss from the 

braking system, as it was a “much bigger hose, and a lot more 

air comes out of that.” McGee identified a number of additional postcrash violations in the “air tanks” and “air line[s],” 

further suggesting that the crash precipitated a catastrophic air 

loss causing the emergency brakes to engage. The day after 

the collision, McGee reconstructed the braking system and 

was able to determine that the service brakes “were working 

fine before the crash.”

Sgt. John Mobley of the Nebraska State Patrol testified 

that he was trained as a traffic crash reconstructionist. While 

Mobley did not conduct the crash reconstruction in this case, 

he testified briefly regarding the reported minimum speed of 

47 miles per hour as stipulated by the parties. Mobley confirmed that a report of a minimum speed is just that, it “is 

purely a minimum” speed required to generate the evidence 

left at the scene. Mobley explained, “What you’re doing is trying to account for all of the energy that was expended through 

braking . . . roadway friction . . . and then you also have energy 

that’s expended in the crush of . . . the two vehicles . . . .” 

Mobley added that in his training and experience, if 47 miles 

per hour was the reported minimum speed, then “typically, [the 

vehicle was] going faster than that.”

Sgt. Kyle Percifield of the Sarpy County sheriff’s office was 

also trained as a crash reconstructionist, and he testified that he 

completed a crash reconstruction in this case. Percifield testified that based on witness accounts, the evidence at the scene, 

and his prior experience investigating similar cases, he “was 

able to draw the conclusion that . . . Knight did not react or 

brake prior to the collision.” On cross-examination, Percifield 

acknowledged that the center of mass of the damage to the 

Toyota Sienna was located slightly to the right or passenger 

side of that vehicle, suggesting that Knight may have turned 
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the truck slightly to the right prior to impact. Yet, Percifield 

reiterated his assessment that there was no evidence to indicate 

Knight took evasive action prior to impact.

While Percifield ultimately concluded that Knight wholly 

failed to brake prior to the collision, he specifically testified 

that his investigation revealed no signs of “heavy braking” 

prior to the collision. When asked about his use of the term 

“heavy braking,” Percifield confirmed that he could not rule 

out normal braking which would not have left tire marks on the 

roadway. However, Percifield explained that he was nevertheless able to conclude that no braking had occurred, because it 

would not have made sense for Knight to apply normal braking 

under the circumstances of this case. That is, giving Knight the 

benefit of the doubt that he did not intend to collide with the 

stopped vehicles, Percifield concluded that upon seeing the red 

light and stopped vehicles, Knight would have applied heavy 

braking as opposed to normal braking. However, because there 

was no evidence of heavy braking prior to the collision, 

Percifield concluded that Knight failed to brake at all, indicating either that Knight did not see the red light and stopped cars 

or that he noticed them at a point too late to stop or steer the 

truck to avoid a collision.

Percifield testified that data collected from the Toyota 

Sienna’s airbag control module demonstrated that the truck 

was traveling “at least” 47 miles per hour at the point of 

impact. Percifield explained that the airbag control module in 

the Toyota Sienna recorded only the “longitudinal change in 

velocity,” such that the data merely indicated the minimum 

speed of impact required to account for the force exerted 

on the longitudinal axis of the vehicle running from front to 

back. Percifield further testified that because the impact was 

not “completely square,” there must have been some degree 

of “lateral forces” acting on the Toyota Sienna. These lateral 

forces, if known, would increase the impact speed required to 

account for all of the energy exerted on the vehicle. However, 

because the Toyota Sienna did not record the lateral change in 
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velocity, Percifield was able to determine the minimum speed 

required to account for only the longitudinal forces, which was 

47 miles per hour. Based on this and additional data collected 

from the scene, Percifield calculated that Knight would have 

needed between 229 and 242 feet of road to safely stop the 

truck. Percifield noted that there was approximately twice that 

distance (648 feet) between the flashing yellow warning signals and the intersection where the collision occurred.

After trial, the jury found that Knight was driving recklessly 

and thus found him guilty of two counts of motor vehicle 

homicide by reckless driving and one count of reckless driving. 

Knight appeals.

ASSIGNMENTS OF ERROR

Knight assigns that (1) the evidence adduced at trial was 

insufficient to support convictions for motor vehicle homicide 

by reckless driving and (2) the evidence at trial was insufficient 

to support a conviction for reckless driving.

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. State v. Stack, 307 Neb. 773, 

950 N.W.2d 611 (2020). 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. Id.

ANALYSIS

Section 28-306(1) provides in pertinent part that “[a] person who 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 . . . commits motor vehicle 
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STATE v. KNIGHT

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homicide.” Section 28-306(2) provides that “[e]xcept as provided in subsection (3) of this section, motor vehicle homicide 

is a Class I misdemeanor.” Section 28-306(3)(a) provides 

that “[i]f the proximate cause of the death of another is the 

operation of a motor vehicle in violation of section 60-6,213 

or 60-6,214, motor vehicle homicide is a Class IIIA felony.” 

Section 60-6,213 defines the offense of reckless driving, and 

Neb. Rev. Stat. § 60-6,214 (Reissue 2021) defines the offense 

of willful reckless driving.

As discussed above, the parties stipulated that Knight committed motor vehicle homicide as defined in § 28-306(1). The 

only dispute at trial was whether Knight also committed the 

offense of reckless driving, thereby triggering the aggravated 

offense of motor vehicle homicide by reckless driving defined 

in § 28-306(3)(a). After trial, the jury answered that question in 

the affirmative and thus found Knight guilty of motor vehicle 

homicide by reckless driving and reckless driving. On appeal, 

Knight argues the evidence was not sufficient to find that he 

was driving recklessly, such that the jury should have merely 

found him guilty of motor vehicle homicide and careless driving. Thus, the only question before this court is whether, viewing the evidence in the light most favorable to the prosecution, 

any rational jury could have found that Knight was driving 

recklessly beyond a reasonable doubt.

[2-4] Under § 60-6,213, “[a]ny person who drives any 

motor vehicle in such a manner as to indicate an indifferent or wanton disregard for the safety of persons or property 

shall be guilty of reckless driving.” Recklessness is the disregard for or indifference to the safety of another or for the 

consequences of one’s act. State v. Green, 238 Neb. 475, 471 

N.W.2d 402 (1991). Reckless driving lies somewhere between 

careless driving and willful reckless driving. Id. Careless driving occurs when a person drives “without due caution so as 

to endanger a person or property.” Neb. Rev. Stat. § 60-6,212 

(Reissue 2021). Willful reckless driving occurs when a person 

drives “in such a manner as to indicate a willful disregard 
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for the safety of persons or property.” § 60-6,214. This court 

has previously observed:

[I]ncidents of willful reckless driving commonly involve 

some combination of a high level of speeding that is particularly dangerous based on the circumstances, such as 

speeding on a heavily populated roadway; fleeing arrest; 

hitting other vehicles or property (or the threat of this 

occurring); road rage; driving through stop signs and red 

lights; or other forms of particularly erratic driving. . . .

On the other hand, reckless driving cases often involve 

less extreme actions, such as moderate speeding, erratic 

lane changes, and other forms of irresponsible driving.

State v. Scherbarth, 24 Neb. App. 897, 906-07, 900 N.W.2d 

213, 221 (2017). While the present case does not involve evidence of speeding, erratic lane changes, or aggressive driving, 

we nevertheless conclude that there is evidence of irresponsible 

driving which, when viewed in the light most favorable to 

the prosecution, is sufficient to support a finding that Knight 

exhibited an indifferent or wanton disregard for the safety of 

persons or property.

On appeal, Knight asserts he was not driving recklessly 

insofar as “[h]is driving was normal and unremarkable but for 

the moment of inattention or driver error immediately preceding the accident.” Brief for appellant at 13. It is true that the 

collision in this case could have precipitated from inattention or driver error, as opposed to aggressive or erratic driving per se. However, the evidence belies any suggestion that 

such inattention or driver error was confined to the moment 

immediately preceding the collision. Rather, Knight failed to 

attend to the flashing yellow warning signals placed 648 feet 

before the intersection. Knight then failed to attend to the traffic light which turned red as he approached the intersection. 

Finally, Knight failed to attend to the vehicles in front of him, 

which had slowed and ultimately stopped at the red light prior 

to the collision. Moreover, Knight participated in a 13-minute 

phone call which was estimated to have ended approximately 
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Cite as 31 Neb. App. 176

1 minute before the collision, and it is possible that the phone 

call itself, or continued attention to the phone after the call 

ended, contributed to Knight’s inattention.

The evidence demonstrates that Knight would have needed 

between 229 and 242 feet of road to safely stop the truck. If he 

had noticed the flashing warning signals, then he would have 

had well over twice that distance to stop the truck. Even having failed to observe the flashing warning signals, Knight had 

ample opportunity to heed the red light and vehicles stopped 

in front of him. Furthermore, even if Knight failed to observe 

the red light and stopped vehicles in time to stop the truck, any 

meaningful notice thereof would have provided an opportunity 

to hit the brakes and steer the truck away from the stopped 

vehicles. Yet, Knight apparently failed to take any action to 

avoid the collision, save possibly turning the truck ever so 

slightly to the right.

Altogether, it is clear that whatever the cause of Knight’s 

inattention, such lasted much longer than a moment. Rather, 

Knight was so distracted that he neglected to heed numerous 

warning signs and drove a loaded dump truck straight through 

a red traffic light at full speed. Sustained inattention of this 

sort, when viewed in the light most favorable to the prosecution, is evidence sufficient to allow a rational jury to conclude 

that Knight was engaged in reckless driving at the time of 

the accident. See Commonwealth v. Cady, 300 Va. 325, 863 

S.E.2d 858 (2021). Accordingly, we affirm Knight’s convictions for motor vehicle homicide by reckless driving and reckless driving.

CONCLUSION

For the foregoing reasons, we affirm Knight’s convictions 

for motor vehicle homicide by reckless driving and reckless driving.

Affirmed.