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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

STATE V. JOHNSON

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

STATE OF NEBRASKA, APPELLEE,

V.

JEFFREY VITT JOHNSON, APPELLANT.

Filed June 18, 2019. No. A-18-463.

Appeal from the District Court for Buffalo County: WILLIAM T. WRIGHT, Judge. Affirmed.

Thomas S. Stewart, Deputy Buffalo County Public Defender, and David B. Brinegar, of 

Ross, Schroeder & George, L.L.C., for appellant.

Douglas J. Peterson, Attorney General, Erin E. Tangeman, and Derek Bral, Senior Certified 

Law Student, for appellee.

MOORE, Chief Judge, and PIRTLE and BISHOP, Judges.

MOORE, Chief Judge.

INTRODUCTION

Jeffrey Vitt Johnson was convicted in the district court for Buffalo County of driving under 

the influence, fourth offense, and ignition interlock violation. He was sentenced to consecutive 

terms of imprisonment of 2 to 6 years for the driving under the influence conviction and to 1 to 1 

year for the ignition interlock violation. Johnson appeals the convictions and sentences, and we 

affirm.

BACKGROUND

On the morning of April 5, 2017, a man later identified as Johnson visited the drive-through 

window of a fast food restaurant. While operating a pickup truck, he attempted to purchase items 

not included on the restaurant’s menu from the manager on duty, Jamie Darby. Because Johnson’s 
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speech was slurred and he had difficulty communicating, Darby believed that Johnson was driving 

while intoxicated; and she reported him to the police.

Officer Jon Loebig of the Kearney Police Department was dispatched to the restaurant. He 

saw Johnson exit the restaurant’s drive-through onto the street and observed Johnson drive up on 

to the curb “a little bit.” Loebig activated his emergency lights, after which Johnson “blew” his 

front passenger tire by driving over a curb. Loebig approached Johnson’s pickup, observing that it 

contained an interlock device and smelled of alcohol. Loebig administered field sobriety tests on 

Johnson, including the horizontal nystagmus test and the nine-step walk-and-turn test, each of 

which Johnson failed. Loebig then arrested Johnson. Johnson voluntarily consented to a blood test 

to determine his blood alcohol level. The results of the test showed that Johnson had a 

concentration of alcohol in his blood of 0.18 of a gram or more by weight of alcohol per 100 

milliliters of his blood.

Johnson was charged by amended information with driving under the influence, 0.15 or 

more, fourth offense, a Class IIA felony, under Neb. Rev. Stat. § 60-6,196(1)(b) (Reissue 2010) 

and ignition interlock device violation, a Class IV felony, under Neb. Rev. Stat. § 60-6,211.11 

(2)(b) (Supp. 2018).

Trial was held on November 9, 2017. Darby and Loebig testified as we summarized above. 

Loebig also testified that that an ignition interlock device measures the alcohol in a person’s system 

before that person starts his or her car by taking a sample of his or her breath. If the person has no

alcohol in his or her system, the vehicle will start. The device also periodically asks for breath 

samples while the vehicle is being driven. If a measurable amount of alcohol is detected by the 

device, it will not drive. Loebig did not ask Johnson how he was able to use his pickup while 

intoxicated despite the ignition interlock device. Areli Valles and Shanon Klingelhoefer, both 

medical technologists at Good Samaritan Hospital, testified about the hospital’s procedures, 

certification, and equipment for performing blood alcohol tests.

The court received a complete abstract of Johnson’s driving record, which showed that he 

had six convictions for driving under the influence. His latest conviction suspended his license for 

a period of 15 years. During that time, he was required to install an ignition interlock device in any 

vehicle in which he drove. Further, the court received excerpts from a video recording of Johnson’s 

encounter with Loebig that support Loebig’s description of the events. The court also received the 

conviction orders from three of Johnson’s driving under the influence convictions.

On November 16, 2018, the district court entered an order convicting Johnson of the 

charges contained in the State’s information. The court noted that Johnson did not argue the State 

failed to prove a prima facie case for driving under the influence and that he did not provide 

contradictory evidence. The court determined the evidence was sufficient to convict Johnson of 

this charge. In response to Johnson’s argument that the State failed to prove he tampered with an 

interlock device, the court found that Johnson would not have been able to operate his pickup if 

he had consumed a measurable amount of alcohol and the interlock device was properly operating. 

The court also stated, “[Johnson] admitted to Officer Loebig that he had ‘turned off’ the interlock 

device so as to allow him to operate his pickup at the time of his arrest . . . .” As a result, the court 

found evidence beyond a reasonable doubt to convict Johnson of ignition interlock device 

violation. The court ordered a presentence investigation report be prepared, and set a date for 

sentencing. Johnson was thereafter sentenced to consecutive terms of imprisonment of 2 to 6 years 
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on the driving under the influence charge and to 1 to 1 year on the ignition interlock violation 

charge.

Johnson appeals the convictions and sentences.

ASSIGNMENTS OF ERROR

Johnson assigns as error, restated, that (1) there was insufficient evidence to support his 

convictions and (2) the district court imposed excessive sentences.

STANDARD OF REVIEW

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. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).

An appellate court reviews criminal sentences for abuse of discretion, which occurs when 

a trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is 

clearly against justice or conscience, reason, and evidence. State v. Collins, 292 Neb. 602, 873 

N.W.2d 657 (2016).

ANALYSIS

Evidence Was Sufficient to Support Johnson’s Conviction.

Johnson does not argue that the evidence is insufficient to convict him of driving under the 

influence under § 60-6,196(1)(b). Instead, he only argues that the State failed to prove that he 

tampered with or circumvented the ignition interlock device installed in his pickup. We find, 

however, that the State provided sufficient circumstantial evidence to support the conviction.

Johnson was convicted of an ignition interlock violation under § 60-6,211.11(2), which 

provides:

Any person ordered by a court or the Department of Motor Vehicles to operate only motor 

vehicles equipped with an ignition interlock device is guilty of a Class IV felony if he or 

she (a)(i) tampers with or circumvents and then operates a motor vehicle equipped with an 

ignition interlock device installed under the court order or Department of Motor Vehicles 

order while the order is in effect or (ii) operates a motor vehicle which is not equipped with 

an ignition interlock device in violation of the court order or Department of Motor Vehicles 

order and (b) operates the motor vehicle as described in subdivision (a)(i) or (ii) of this 

subsection when he or she has a concentration of two-hundredths of one gram or more by 

weight of alcohol per one hundred milliliters of his or her blood or a concentration of 

two-hundredths of one gram or more by weight of alcohol per two hundred ten liters of his 

or her breath.

Johnson asserts that the State offered only the testimony of Loebig that he observed an 

interlock device in his pickup and a copy of his driving record. Johnson claims this evidence is 
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insufficient because Loebig did not testify as to whether or not the device was operable, and he 

did not ask whether Johnson had tampered with or circumvented the device.

Contrary to the district court’s statement in its order that Johnson admitted to Loebig that 

he had “turned off” the interlock device in order to operate his pickup before his arrest, our review 

of the record reveals no such admission, which the State confirmed at oral argument. Nevertheless, 

we must review the evidence in the light most favorable to the prosecution and determine whether 

any rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt. State v. Garcia, supra. Our review of the evidence leads us to conclude that a rational trier 

of fact could find the essential elements of an ignition interlock violation.

The record shows that Johnson operated his pickup, which was equipped with an ignition 

interlock device, while under the influence of alcohol. Loebig testified that a functioning ignition 

interlock device would not allow a person to operate a motor vehicle with any amount of alcohol 

in his or her system. Moreover, the results of the blood test showed that Johnson had a 

concentration of alcohol in his blood of 0.18 of a gram or more by weight of alcohol per 100 

milliliters of his blood. Because Johnson was able to operate his pickup with a high concentration 

of alcohol in his blood, the interlock device installed in that pickup could not have been functioning 

on the day of his arrest.

Together, these facts circumstantially show that Johnson tampered with the ignition 

interlock device in his pickup so that he could drive after having consumed alcohol, and Johnson 

offered no alternative evidence and no alternative theory of the circumstances. A fact proved by 

circumstantial evidence is nonetheless a proven fact. State v. Olbricht, 294 Neb. 974, 885 N.W.2d 

699 (2016). Circumstantial evidence is not inherently less probative than direct evidence. Id. The 

State does not have the burden of disproving every hypothesis but that of guilt in order to sustain 

a conviction based upon circumstantial evidence. State v. Nesbitt, 226 Neb. 32, 409 N.W.2d 314 

(1987). Therefore, the record supports the district court’s conviction of Johnson for ignition 

interlock violation.

District Court Did Not Impose Excessive Sentence.

Johnson next assigns that the district court erred in imposing excessive sentences for his 

convictions. He argues that he should have been given a more lenient sentence on account of his 

age, physical and emotional disorders, as well as his disability. He also argues that the absence of 

proof that he tampered with or circumvented the ignition interlock device makes his consecutive 

sentence for the ignition interlock violation “wholly untenable.” Brief for appellant at 9. We 

disagree.

Driving under the influence, 0.15 or more, fourth offense, is a Class IIA felony. Neb. Rev. 

Stat. § 60-6,197.03(8) (Supp. 2018). A Class IIA felony is punishable by a maximum of 20 years 

in prison and has no minimum sentence. Neb. Rev. Stat. § 28-105 (Supp. 2018). An ignition 

interlock device violation under § 60-6,211.11(2) is a Class IV felony. A Class IV felony is 

punishable by a maximum of 2 years in prison. § 28-105. Johnson’s sentences were within the 

statutory limits. Where a sentence imposed within the statutory limits is alleged on appeal to be 

excessive, the appellate court must determine whether a sentencing court abused its discretion in 

considering and applying the relevant factors as well as any applicable legal principles in 

determining the sentence to be imposed. State v. Tucker, 301 Neb. 856, 920 N.W.2d 680 (2018). 
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When imposing a sentence, a sentencing judge should 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 crime. State v. Spang, 

302 Neb. 285, 923 N.W.2d 59 (2019). 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. State v. Garcia, 302 

Neb. 406, 923 N.W.2d 725 (2019). And generally, it is within a trial court’s discretion to direct 

that sentences imposed for separate crimes be served either concurrently or consecutively. State v. 

Brown, 302 Neb. 53, 921 N.W.2d 804 (2019).

After reviewing the record and the presentence investigation report here, we cannot say the 

sentences the district court imposed were an abuse of discretion. Johnson, 53 years old at the time 

of sentencing, has an extensive criminal record, including seven convictions for driving under the 

influence, three driving during suspension convictions, and numerous traffic violations. He also 

has convictions for violating a harassment protection order, theft by shoplifting (three convictions), 

resisting arrest, and attempted theft by shoplifting. The presentence investigation report shows that 

Johnson is at a high risk to reoffend on the overall Level of Service/Case Management Inventory, 

and he scored in the maximum risk range for alcohol and driver’s risk on the Nebraska Driver’s 

Risk Inventory.

At the sentencing hearing, the court indicated that it had reviewed the presentence 

investigation report. The court noted Johnson’s seven prior convictions for driving under the 

influence since 1987 and that his last two convictions were for driving under the influence with a 

blood alcohol level of more than 0.15 grams of alcohol per one hundred milliliters of blood. The 

court found that Johnson was “clearly an alcoholic” and that he put the public at risk whenever he 

was on the road. The court noted that Johnson had been given multiple opportunities to correct this 

problem, but had failed to do so. The court imposed the sentences of incarceration to remove the 

threat Johnson posed to the public and to allow him to receive the necessary treatment. The court 

stated:

The reason I’m making [the sentences] consecutive is that you knew that you had an 

ignition interlock device in your vehicle and you deliberately tampered with it and caused 

it not to function as it was intended to function, that is, to keep you from driving with 

alcohol in your system.

The district court took the appropriate factors into consideration when sentencing Johnson. 

We find sufficient evidence in the record to support the sentences the district court imposed, and 

therefore, those sentences were not an abuse of discretion.

CONCLUSION

We find sufficient circumstantial evidence to support Johnson’s conviction for ignition 

interlock violation. Further, considering the circumstances, the sentences on his convictions were 

not an abuse of discretion.

AFFIRMED.