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STATE v. SOLLMAN

Cite as 29 Neb. App. 356

State of Nebraska, appellee, v. 

Abram K. Sollman, appellant.

___ N.W.2d ___

Filed January 12, 2021. No. A-20-172.

1. 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.

2. Criminal Law: Motions to Dismiss: Evidence. In determining whether 

a criminal defendant’s motion to dismiss for insufficient evidence should 

be sustained, the State is entitled to have all of its relevant evidence 

accepted as true, the benefit of every inference that can reasonably 

be drawn from the evidence, and every controverted fact resolved in 

its favor.

3. Criminal Law: Directed Verdict. In a criminal case, a court can direct 

a verdict only when there is a complete failure of evidence to establish 

an essential element of the crime charged or the evidence is so doubtful 

in character, lacking probative value, that a finding of guilt based on 

such evidence cannot be sustained.

4. Rules of Evidence: Hearsay: Appeal and Error. Excluding rulings 

under the residual hearsay exception, an appellate court reviews the 

factual findings underpinning a trial court’s hearsay ruling for clear 

error and reviews de novo the court’s ultimate determination whether the 

court admitted evidence over a hearsay objection or excluded evidence 

on hearsay grounds.

5. Constitutional Law: Motions to Suppress: Confessions: Miranda 

Rights: Appeal and Error. In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law 

enforcement procured it by violating the safeguards established by 

the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. 

Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a twopart standard of review. Regarding historical facts, an appellate court 

reviews the trial court’s findings for clear error. Whether those facts 

Nebraska Supreme Court Online Library

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

01/12/2021 09:07 AM CST
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meet constitutional standards, however, is a question of law, which an 

appellate court reviews independently of the trial court’s determination.

6. Judgments: Trial: Evidence: Motions for New Trial: Sentences: 

Appeal and Error. Evidentiary questions committed to the discretion 

of the trial judge, orders denying a motion for new trial, and claims of 

excessive sentencing are all reviewed for abuse of discretion.

7. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

8. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent the trial court’s abuse 

of discretion.

9. Criminal Law: Torts: Proximate Cause. The concept of proximate 

causation is applicable in both criminal and tort law, and the analysis is 

parallel in many instances.

10. Proximate Cause. As a general matter, to say one event proximately 

caused another is a way of making two separate but related assertions: 

First, it means the former event caused the latter; second, it means 

that it was not just any cause, but one with a sufficient connection to 

the result.

11. Negligence: Proximate Cause. The idea of proximate cause, as distinct 

from actual cause or cause in fact, is a flexible concept that generally 

refers to the basic requirement that there must be some direct relation 

between the injury asserted and the injurious conduct alleged.

12. ____: ____. A requirement of proximate cause serves to preclude liability in situations where the causal link between conduct and result is so 

attenuated that the consequence is more aptly described as mere fortuity.

13. Negligence: Proximate Cause: Words and Phrases. A “proximate 

cause” is a moving or effective cause or fault which, in the natural and 

continuous sequence, unbroken by an efficient intervening cause, produces a death or injury and without which the death or injury would not 

have occurred.

14. Proximate Cause: Proof. Three basic requirements must be met in 

establishing proximate cause: (1) that without the misconduct, the injury 

would not have occurred, commonly known as the “but for” rule; (2) 

that the injury was a natural and probable result of the misconduct; and 

(3) that there was no efficient intervening cause.

15. Criminal Law: Negligence: Proximate Cause: Words and Phrases.

Criminal conduct is a proximate cause of the event if the event in question would not have occurred but for that conduct; conversely, conduct 

is not a proximate cause of an event if that event would have occurred 

without such conduct.
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STATE v. SOLLMAN

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16. Negligence: Proximate Cause. An intervening cause supersedes and cuts 

off the causal link only when the intervening cause is not foreseeable.

17. Negligence: Proximate Cause: Words and Phrases. An efficient intervening cause is new and independent conduct of a third person, which 

itself is a proximate cause of the injury in question and breaks the 

causal connection between the original conduct and the injury. The 

causal connection is severed when (1) the negligent actions of a third 

party intervene, (2) the third party had full control of the situation, 

(3) the third party’s negligence could not have been anticipated by the 

defendant, and (4) the third party’s negligence directly resulted in injury 

to the plaintiff.

18. Negligence: Proximate Cause: Tort-feasors: Liability. The doctrine 

that an intervening act cuts off a tort-feasor’s liability comes into play 

only when the intervening cause is not foreseeable. But if a third party’s 

negligence is reasonably foreseeable, then the third party’s negligence is 

not an efficient intervening cause as a matter of law.

19. Negligence. Foreseeable risk is an element in the determination of negligence, not legal duty. In order to determine whether appropriate care 

was exercised, the fact finder must assess the foreseeable risk at the time 

of the defendant’s alleged negligence.

20. Trial: Negligence. The extent of foreseeable risk depends on the specific facts of the case and cannot be usefully assessed for a category of 

cases; small changes in the facts may make a dramatic change in how 

much risk is foreseeable. Thus, courts should leave such determinations 

to the trier of fact unless no reasonable person could differ on the matter. 

And if the court takes the question of negligence away from the trier of 

fact because reasonable minds could not differ about whether an actor 

exercised reasonable care, then the court’s decision merely reflects the 

one-sidedness of the facts bearing on negligence and should not be misrepresented or misunderstood as involving exemption from the ordinary 

duty of reasonable care.

21. Evidence: Hearsay: Words and Phrases. Hearsay statements are outof-court statements made by a human declarant that are offered in evidence to prove the truth of the matter asserted.

22. Drunk Driving: Blood, Breath, and Urine Tests: Proof. The State is 

not required to prove a temporal nexus between the test and the defendant’s alcohol level at the moment he or she was operating the vehicle.

23. ____: ____: ____. Matters of delay between driving and testing are 

properly viewed as going to the weight of the breath test results, rather 

than to the admissibility of the evidence.

24. Drunk Driving: Blood, Breath, and Urine Tests: Time. A valid breath 

test given within a reasonable time after the accused was stopped is 

probative of a violation.
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25. Constitutional Law: Criminal Law: Appeal and Error. Harmless 

error jurisprudence recognizes that not all trial errors, even those of 

constitutional magnitude, entitle a criminal defendant to the reversal of 

an adverse trial result.

26. Convictions: Appeal and Error. It is only prejudicial error, that is, 

error which cannot be said to be harmless beyond a reasonable doubt, 

which requires that a conviction be set aside.

27. Appeal and Error. When determining whether an alleged error is so 

prejudicial as to justify reversal, courts generally consider whether the 

error, in light of the totality of the record, influenced the outcome of 

the case.

28. Verdicts: Juries: Appeal and Error. Harmless error review looks to 

the basis on which the jury actually rested its verdict. The inquiry is 

not whether in a trial that occurred without the error, a guilty verdict 

would surely have been rendered, but whether the actual guilty verdict 

rendered was surely unattributable to the error.

29. Trial: Evidence: Verdicts: Appeal and Error. In conducting harmless 

error analysis, an appellate court looks to the entire record and views 

the erroneously admitted evidence relative to the rest of the untainted, 

relevant evidence of guilt. Overwhelming evidence of guilt can be 

considered in determining whether the verdict rendered was surely unattributable to the error, but overwhelming evidence of guilt is not alone 

sufficient to find the erroneous admission of evidence harmless. An 

additional consideration is whether the improperly admitted evidence 

was cumulative and tended to prove the same point as other properly 

admitted evidence.

30. 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.

31. Criminal Law: Convictions: Evidence: Appeal and Error. When 

reviewing a criminal conviction for sufficiency of the evidence to 

sustain the conviction, 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.

32. 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 unless 

the prosecution demonstrates the use of procedural safeguards that are 

effective to secure the privilege against self-incrimination.
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33. Miranda Rights: Self-Incrimination: Evidence. Miranda v. Arizona, 

384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), requires law 

enforcement to give a particular set of warnings to a person in custody 

before interrogation, including that he or she has the right to remain 

silent, that any statement he or she makes may be used as evidence 

against him or her, and that he or she has the right to an attorney. These 

warnings are considered prerequisites to the admissibility of any statement made by a defendant during custodial interrogation.

34. Miranda Rights. Miranda warnings are required only when a suspect 

interrogated by the police is in custody.

35. ____. 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 whether there is a formal arrest or restraint 

on freedom of movement of degree associated with a formal arrest.

36. ____. Custody under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 

1602, 16 L. Ed. 2d 694 (1966), is to be determined based on how a 

reasonable person in the suspect’s situation would perceive his or her 

circumstances.

37. Constitutional Law: Search and Seizure. A seizure under the Fourth 

Amendment occurs only if, in view of all the circumstances surrounding 

the incident, a reasonable person would have believed that he or she was 

not free to leave.

38. Miranda Rights. In considering whether a suspect is in custody for 

purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. 

Ed. 2d 694 (1966), relevant considerations include, but are not limited 

to, the location of the interaction, who initiated the interaction, the 

duration of the interaction, the type and approach of questioning, the 

freedom of movement of the suspect, the duration of the interaction, 

and whether the suspect was placed under arrest at the termination of 

the interaction.

39. Sentences: Appeal and Error. 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.

40. Sentences. In determining a sentence to be imposed, relevant factors 

customarily considered and applied are the defendant’s (1) age, (2) 

mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and 

(6) motivation for the offense, as well as (7) the nature of the offense 

and (8) the amount of violence involved in the commission of the crime. 

The sentencing court is not limited to any mathematically applied set 

of factors.
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41. ____. 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 Sarpy County: George 

A. Thompson, Judge. Affirmed.

Thomas P. Strigenz, Sarpy County Public Defender, and 

Mitchell S. Sell, Senior Certified Law Student, for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Moore, Bishop, and Welch, Judges.

Welch, Judge.

I. INTRODUCTION

Abram K. Sollman appeals his conviction of motor vehicle 

homicide, driving under the influence of alcohol (DUI), and 

reckless driving. He contends the district court erred in (1) 

overruling his motion to dismiss at the close of evidence and 

finding him guilty of count 1, because an efficient intervening cause destroys proximate cause; (2) overruling his hearsay 

objection to exhibit 5; (3) finding evidence beyond a reasonable doubt that he was guilty of count 2; (4) overruling his 

motion to dismiss at the close of evidence and finding him 

guilty of count 3; (5) overruling his motion to suppress the 

statements he made to law enforcement; and (6) imposing 

excessive sentences. For the reasons set forth herein, we affirm 

Sollman’s convictions and sentences.

II. STATEMENT OF FACTS

At about 6 p.m. on February 1, 2019, Sean Nowling was 

traveling westbound on Interstate 80 when “[a]ll of a sudden [he heard] honking of a horn like blaring” and a silver 

Volkswagen Jetta came “fl[ying] by [him] in the left lane . . . 

swerving back and forth through traffic,” outpacing all other 

cars on the road and not using turn signals. Nowling later 
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saw the same Volkswagen, which he described as a “station 

wagon car” with “real fancy rims on it” and a Wisconsin 

license plate, with a door open at the “[Highway] 370 exit” 

where its driver had pulled over onto the side of the road and 

it appeared to Nowling as if the driver “was urinating on the 

side of the road.”

After Nowling passed the silver Volkswagen, Nowling exited 

at the Gretna, Nebraska, off ramp before the Volkswagen came 

“flying by [him] on the shoulder up through three or four cars 

. . . in front of [him] . . . on the shoulder all the way through” 

and ran “the red light at the off ramp turn and Highway 31” 

toward Gretna. Nowling watched as the Volkswagen ran a 

second red light near a shopping mall, causing the vehicles 

in the area to quickly brake to avoid a collision. Nowling 

also observed the Volkswagen “swerv[e],” “whi[p] around,” 

make a “U-turn,” and “hea[d] back towards the [I]nterstate on 

Highway 31.” Shortly thereafter, Nowling saw an “ambulance 

[and] sheriffs [and saw] Highway 31 was closed off.”

Shortly thereafter, a Sarpy County sheriff’s deputy, John 

Sanderson, arrived at the scene of the accident involving the 

silver Volkswagen and another vehicle, which accident had 

resulted in injuries to both drivers. Sollman was identified as 

the driver of the Volkswagen, and a Sarpy County sheriff’s 

sergeant, Kyle Percifield, discovered a “small bottle of Fireball 

whisky . . . on the passenger side of [Sollman’s] vehicle.” 

Deputy Sanderson smelled alcohol emanating from Sollman as 

Sollman was being transported on a stretcher to a “life flight” 

helicopter and taken to the University of Nebraska Medical 

Center (UNMC). The driver of the second vehicle, Cassandra 

Clausen, later died of blunt force trauma to her torso as a result 

of the accident.

After Deputy Sanderson smelled alcohol emanating from 

Sollman, he obtained a search warrant to obtain a DUI blood 

draw from Sollman. When Deputy Sanderson arrived at 

UNMC to execute the search warrant, he informed Sollman 

that he had a search warrant for a blood draw, went over 

the post-chemical-test advisements, and, during the same 
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conversation, asked Sollman if he had had anything to drink. 

Sollman responded that he “hadn’t had anything to drink 

in 15 hours prior was his last drink.” The results from the 

blood draw taken pursuant to the search warrant, which draw 

occurred approximately 3 hours after the accident, showed that 

Sollman’s blood alcohol content was .125 plus or minus .01 

grams of ethanol per 100 milliliters of blood.

The following day, Sergeant Percifield visited Sollman at 

UNMC and inquired about Sollman’s recollection of the accident. Sollman stated that he had been traveling from Michigan 

to Lincoln and that “he didn’t feel intoxicated” prior to the 

accident. Sergeant Percifield interviewed Sollman for a second time while Sollman was in jail and began by informing 

Sollman of the charges against him and the preliminary conclusions of the investigation into the accident. During this jail 

interview, Sollman responded that he thought the speed limit 

was 65 m.p.h. Sergeant Percifield acknowledged that he did 

not advise Sollman of his Miranda rights while interviewing 

Sollman at either the hospital or the jail.

In March 2019, Sollman was charged with motor vehicle 

homicide while under the influence of alcohol or drugs, a 

Class IIA felony under Neb. Rev. Stat. § 28-306(3)(b) (Reissue 

2016) (count 1); DUI, a Class W misdemeanor under Neb. Rev. 

Stat. § 60-6,196 (Reissue 2010) (count 2); and reckless driving, a Class III misdemeanor under Neb. Rev. Stat. § 60-6,213 

(Reissue 2010) (count 3). The information alleged that Sollman 

unintentionally caused Clausen’s death while engaged in the 

unlawful operation of a motor vehicle, i.e., under the influence 

of alcohol beyond the legal limit.

1. Motion to Suppress

Prior to trial, Sollman moved to suppress statements he 

made to law enforcement at the scene of the February 1, 2019, 

accident and the following day while he was in the hospital, 

alleging the statements were obtained in violation of the 4th 

through 6th and 14th Amendments to the U.S. Constitution, 

as well as article I, §§ 7 and 12, of the Nebraska Constitution. 
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STATE v. SOLLMAN

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More specifically, Sollman asserted that the statements were 

obtained when he was hospitalized and in extreme pain and 

suffering; that he was not free to leave; that his statements 

were given neither freely nor voluntarily and were not made 

knowingly, understandingly, or intelligently; that he was not 

informed of his Miranda rights; and that his statements were 

a result of questions that law enforcement should have known 

were likely to elicit an incriminatory response.

At the suppression hearing, certain of the aforementioned 

facts that were relevant to Sollman’s motion were admitted 

into evidence. Additional testimony was adduced from Deputy 

Sanderson and Sergeant Percifield.

(a) Deputy Sanderson

When Deputy Sanderson executed the search warrant for a 

blood draw, he observed Sollman to be “conscious, alert, and 

talking”; believed Sollman knew who Deputy Sanderson was 

and what was going on; and noted Sollman was appropriately 

responsive to the questions posed to him. Deputy Sanderson 

acknowledged that he did not speak with hospital staff about 

Sollman’s condition or about any medications given to Sollman 

prior to speaking with him; however, Deputy Sanderson reiterated that Sollman was “with it . . . able to hold a conversation,” which Deputy Sanderson testified provided him with no 

indication that Sollman would be unable to coherently answer 

Deputy Sanderson’s questions. Deputy Sanderson agreed that 

Sollman’s condition likely prevented him from moving around 

the room or leaving at the time Deputy Sanderson spoke with 

him, but acknowledged that he did not know for sure. Deputy 

Sanderson noted that Sollman did not refuse to speak with him 

and did not ask for an attorney, but acknowledged that he did 

not advise Sollman of his rights.

Deputy Sanderson recalled that during his interaction with 

Sollman, he was standing “probably about five feet” from 

the foot of the bed; did not threaten Sollman, yell at him, or 

draw his weapon or display it at any point; and did not place 

Sollman under arrest or handcuff him.
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(b) Sergeant Percifield

Sergeant Percifield’s first of two meetings with Sollman 

occurred at UNMC the day after the accident. Prior to questioning Sollman, Sergeant Percifield asked hospital staff about 

Sollman’s condition and learned from Sollman that Sollman 

was on pain medication. Sergeant Percifield sought Sollman’s 

consent to obtain Sollman’s blood alcohol content result, and 

Sollman responded that Sergeant Percifield “could, and that 

[Sergeant Percifield] would get it anyway.” Sergeant Percifield 

estimated that he conversed with Sollman “[a]bout 15 minutes” 

and noted that he was the only law enforcement officer present; did not display his weapon; and did not yell at or threaten 

Sollman. Despite Sollman’s condition, Sergeant Percifield 

believed Sollman was “alert,” was able to focus on the questions asked, and responded appropriately to questions. Sergeant 

Percifield also noted that Sollman never expressed a desire not 

to speak with him and never requested an attorney. However, 

Sergeant Percifield did not believe Sollman was able to freely 

move around or leave under his own strength.

(c) Court’s Order Regarding 

Motion to Suppress

Following the hearing, the district court denied Sollman’s 

motion to suppress. The court specifically found that Sollman’s 

statements were made voluntarily, explaining that Sollman 

was “attentive to the conversation”; that “his responses were 

clear, appropriate, and articulate”; that he was not in custody 

for purposes of invoking his Miranda rights; that his statement 

“‘I thought it [the speed limit] was 65’” was admissible; and 

that Sergeant Percifield’s discussion about how he calculated 

Sollman’s speed was not intended to elicit any response.

2. Trial

A bench trial was held in December 2019. Stipulations 

were entered at trial, including that Clausen died of blunt 

force trauma to her torso received during the accident and that 

an exhibit containing a call to the 911 emergency dispatch 
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service was admissible. Additional evidence presented to the 

district court included testimony from Nowling, a witness to 

Sollman’s erratic driving immediately prior to the accident as 

previously set forth; Deputy Sanderson; Shayna Hill, the phlebotomist who performed Sollman’s DUI blood draw; forensic 

chemist Shanon Tysor; Sergeant Percifield; and a Nebraska 

State Patrol trooper, Andrew Phillips. Surveillance system 

video from a nearby business appeared to show Clausen’s 

vehicle stop at the intersection and two cars pass before her 

vehicle entered the intersection, at which time it was struck by 

Sollman’s vehicle.

(a) Phlebotomist Hill

Hill testified that when Sollman was brought to the hospital, 

he was treated as a trauma patient, which included Hill’s drawing a blood sample so Sollman’s blood alcohol content could 

be analyzed. She explained that the materials used to collect 

a blood alcohol sample do not utilize alcohol and that once a 

sample has been obtained, she submits the sample to the laboratory for testing and later reviews the test results. Sollman’s 

laboratory results obtained the night of the accident showed 

he had a blood alcohol content of .197 of a gram of alcohol 

per 100 milliliters of blood, which results were offered into 

evidence as exhibit 5. Hill identified exhibit 5, but Sollman 

objected on hearsay grounds, arguing exhibit 5 should not be 

received by the court, because Hill did not complete the testing on Sollman’s blood sample. In response, the State argued 

that deficiencies in technique go to the weight and credibility 

but not the admissibility of the exhibit. Ultimately, the district 

court received exhibit 5 for the purpose of the blood alcohol 

content reading.

(b) Deputy Sanderson

Deputy Sanderson provided some of the same testimony 

he gave at the suppression hearing, and counsel for Sollman 

renewed his objection based on his motion to suppress. In 

addition to the content of that previous testimony, Deputy 
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Sanderson noted that due to the “chaotic-ness” of the scene, 

he did not perform any field sobriety tests or give Sollman a 

preliminary breath test at the scene. Instead, Deputy Sanderson 

obtained a search warrant for a DUI blood draw. At 9:21 p.m., 

which was approximately 3 hours after the accident, Deputy 

Sanderson observed Hill remove two vials’ worth of blood 

from Sollman.

(c) Forensic Chemist Tysor

Tysor, a forensic chemist employed by the Douglas County 

sheriff’s office, testified that she holds a Class A permit from 

the Nebraska Department of Health and Human Services and 

explained the permit is a license indicating she can process 

blood samples to determine alcohol concentration. Tysor stated 

that she tests blood samples for alcohol content monthly and 

performs approximately 50 to 60 tests annually. Tysor testified that she received a request from Deputy Sanderson to test 

Sollman’s blood for alcohol and proceeded to test the blood 

sample in accordance with the specifications of title 177 of the 

Nebraska Administrative Code. Tysor further stated that all the 

scientific equipment was in proper working order. However, 

Tysor testified that the date or time the sample was collected 

was not included in her report. When Tysor was asked what 

the blood alcohol content of Sollman’s sample was, Sollman 

objected based on foundation as to the chain of custody, but 

the court overruled the objection. Tysor reviewed the notes she 

took when testing Sollman’s blood sample and testified the 

vial indicated that the sample had been collected on February 

1, 2019, at 9:21 p.m. Tysor testified Sollman’s blood alcohol 

content was .125 plus or minus .01 grams of ethanol per 100 

milliliters of blood.

(d) Sergeant Percifield

Sergeant Percifield testified that he has experience and training in investigating vehicle accidents and that as part of his 

investigation of the current accident, he recorded his interview 

with Sollman at the hospital. The district court received the 
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recording in evidence over Sollman’s renewal of his motion 

to suppress.

Sergeant Percifield also investigated and took photographs 

of the vehicles involved in the accident. The photographs 

show the silver Volkswagen’s Michigan license plate, number “EAC 7112,” and Sergeant Percifield testified that they 

show the Volkswagen’s tire imprint indicated the tires were 

larger than the manufacturer’s recommended size. Sergeant 

Percifield explained that because the Volkswagen was equipped 

with larger tires, the speedometer underreported the vehicle’s actual speed. Sergeant Percifield further testified that the 

Volkswagen’s speedometer had stopped at approximately 76 

m.p.h., which happens with older vehicles that are involved in 

an accident, but also acknowledged that a frozen speedometer 

is not definitive proof of the speed Sollman was going at the 

time of the accident.

Sergeant Percifield also used data from the airbag control 

module in Clausen’s vehicle to corroborate speed calculations. 

Sergeant Percifield determined that at the time of the accident, 

Clausen was traveling at 14.93 m.p.h. and Sollman was traveling at approximately 72.49 m.p.h. Sergeant Percifield’s investigation established that Clausen was at a stop sign when she 

failed to yield and turned left in front of Sollman onto Highway 

31. Sergeant Percifield estimated that had Sollman been traveling at 55 m.p.h. rather than over 70 m.p.h., Clausen’s vehicle 

would have cleared Sollman’s lane of travel when he was 

31 feet from the impact area. When asked hypothetically 

whether this accident would have occurred if both drivers 

had been sober, Sergeant Percifield stated that the accident 

might not have occurred, because reaction time is a factor 

considered during accident reconstruction. More specifically, 

Sergeant Percifield explained that a sober person might realize 

an obstruction is in the roadway and react to it more quickly 

than someone who was intoxicated. Sergeant Percifield opined 

that based on his calculations, the accident occurred because 

Sollman was traveling at around 72 m.p.h. in a 55-m.p.h. 
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zone, and that intoxication was a factor in the accident due 

to the slower reaction and perception of an impaired person. 

Sergeant Percifield explained that lack of tire marks attributable to Sollman’s vehicle was evidence that his reaction to the 

impending crash was slowed.

Sergeant Percifield spoke to Sollman about the oversized tires on his vehicle and the speed calculations, and 

Sollman replied that he thought the speed limit was 65 m.p.h. 

Sollman renewed his motion to suppress by objecting to those 

statements.

Sergeant Percifield testified that text message data from 

Clausen’s cell phone showed she received a text message near 

the time of the accident but did not indicate whether that message was viewed by Clausen, and Sergeant Percifield could 

not conclude whether that contributed to the accident. Sergeant 

Percifield also noted the incoming text message had the same 

time stamp as a crash assistance number that was automatically 

dialed from Clausen’s cell phone.

(e) Trooper Phillips

Trooper Phillips testified that he responded to a call for service in February 2019 because Sollman was seeking Salvation 

Army vouchers for a hotel room. After Phillips spoke with 

Sollman, he learned that Sollman had two Sarpy County warrants for his arrest for misdemeanor DUI and felony motor 

vehicle homicide. As Trooper Phillips transported Sollman to 

the Sarpy County jail, Sollman made statements related to the 

accident, including that the accident “cured him from drinking 

and driving.”

3. Verdict and Sentencing

Following the conclusion of the State’s case, Sollman moved 

to dismiss counts 1 and 3 on the basis that the State had failed 

to present a prima facie case, which motion was overruled by 

the district court. Sollman then rested without presenting any 

evidence and renewed his motion to dismiss, which the district 

court again overruled.
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Ultimately, the district court found Sollman guilty of all 

three of the charged offenses. Prior to sentencing, Sollman 

filed motions for new trial alleging that there was insufficient 

evidence to convict him and that the court failed to consider 

lesser-included offenses. The district court overruled those 

motions, finding that there was sufficient evidence to convict 

Sollman on all three charged offenses, and because the State 

met its burden beyond a reasonable doubt on count 1, the court 

did not need to consider lesser-included offenses.

At the sentencing hearing, the district court stated that it had 

considered the contents of the presentence investigation report 

(PSR), documentation that Sollman was 46 years old at the 

time of the PSR, was married, and had nine dependent children; Sollman’s criminal history and “Level of Service/Case 

Management Inventory” (LS/CMI) scores; the comments made 

at sentencing; the circumstances surrounding the accident, 

including Sollman’s intoxication level and speed; and the 

seriousness of the crimes committed by Sollman. The district 

court also noted that Sollman blamed the victim for the accident and that the court found Nowling’s account of the events 

leading up to the accident credible. Further, the court reviewed 

law enforcement’s accident reconstruction and calculations, 

which determined the accident was caused by speeding, but 

the court noted, “The accident was [caused by] an intoxication 

level more than two times the legal limit, excessive speeding and erratic driving all the way up to the point in time 

this occurred.”

As a result of those considerations, the district court found 

that imprisonment was necessary to protect the public due 

to the substantial risk Sollman would engage in additional 

criminal conduct if placed on probation and that “a lesser 

sentence would depreciate the seriousness of the offense or 

promote disrespect of the law.” For count 1, motor vehicle 

homicide, the district court sentenced Sollman to 14 to 20 

years’ imprisonment and a 15-year license suspension. For 

count 2, DUI, the district court sentenced Sollman to 60 days’ 
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imprisonment and revoked Sollman’s license for 6 months but 

provided that Sollman could install an ignition interlock device 

after 45 days. For count 3, reckless driving, the district court 

sentenced Sollman to 90 days’ imprisonment. The sentences 

were ordered to be served consecutively, but the 15-year and 

6-month license revocations were ordered to run concurrently. 

Additionally, Sollman was given credit for 378 days previously 

served. The district court also ordered Sollman to pay a fine of 

$500. Sollman has timely appealed to this court.

III. ASSIGNMENTS OF ERROR

Sollman argues the district court erred in (1) overruling his 

motion to dismiss at the close of evidence and finding him 

guilty of motor vehicle homicide (count 1), because an efficient 

intervening cause destroys proximate cause; (2) overruling his 

hearsay objection to exhibit 5; (3) finding him guilty of DUI 

(count 2); (4) overruling his motion to dismiss at the close of 

evidence and finding him guilty of reckless driving (count 3); 

(5) overruling his motion to suppress the statements he made to 

law enforcement; and (6) imposing excessive sentences.

IV. STANDARD OF REVIEW

[1-3] A motion to dismiss at the close of all the evidence has 

the same legal effect as a motion for directed verdict. State v. 

Combs, 297 Neb. 422, 900 N.W.2d 473 (2017). See, also, State 

v. Malone, 26 Neb. App. 121, 917 N.W.2d 164 (2018). In determining whether a criminal defendant’s motion to dismiss for 

insufficient evidence should be sustained, the State is entitled 

to have all of its relevant evidence accepted as true, the benefit 

of every inference that can reasonably be drawn from the evidence, and every controverted fact resolved in its favor. State 

v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002). In a criminal 

case, a court can direct a verdict only when there is a complete failure of evidence to establish an essential element of 

the crime charged or the evidence is so doubtful in character, 

lacking probative value, that a finding of guilt based on such 

evidence cannot be sustained. Id.
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[4] Excluding rulings under the residual hearsay exception, 

an appellate court reviews the factual findings underpinning a 

trial court’s hearsay ruling for clear error and reviews de novo 

the court’s ultimate determination whether the court admitted 

evidence over a hearsay objection or excluded evidence on 

hearsay grounds. See State v. Dady, 304 Neb. 649, 936 N.W.2d 

486 (2019).

[5] In reviewing a motion to suppress a statement based on 

its claimed involuntariness, including claims that law enforcement procured it by violating the safeguards established by the 

U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 

S. Ct. 1602, 16 L. Ed. 2d 694 (1966), an appellate court applies 

a two-part standard of review. State v. Montoya, 304 Neb. 96, 

933 N.W.2d 558 (2019). Regarding historical facts, an appellate court reviews the trial court’s findings for clear error. Id.

Whether those facts meet constitutional standards, however, is 

a question of law, which an appellate court reviews independently of the trial court’s determination. Id.

[6-8] Evidentiary questions committed to the discretion of 

the trial judge, orders denying a motion for new trial, and 

claims of excessive sentencing are all reviewed for abuse of 

discretion. State v. Dady, supra. An abuse of discretion occurs 

when a trial court’s decision is based upon reasons that are 

untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence. Id. An appellate court 

will not disturb a sentence imposed within the statutory limits 

absent the trial court’s abuse of discretion. State v. Lierman, 

305 Neb. 289, 940 N.W.2d 529 (2020).

V. ANALYSIS

1. Motion to Dismiss and Finding 

of Guilt on Count 1

Sollman first argues that the district court erred in overruling 

his motion to dismiss at the close of evidence and finding him 

guilty of count 1, because of the doctrine of efficient intervening cause.
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A motion to dismiss at the close of all the evidence has 

the same legal effect as a motion for directed verdict. State v. 

Combs, supra. In determining whether a criminal defendant’s 

motion to dismiss for insufficient evidence should be sustained, 

the State is entitled to have all of its relevant evidence accepted 

as true, the benefit of every inference that can reasonably be 

drawn from the evidence, and every controverted fact resolved 

in its favor. State v. Canady, supra. In a criminal case, a court 

can direct a verdict only when there is a complete failure of 

evidence to establish an essential element of the crime charged 

or the evidence is so doubtful in character, lacking probative 

value, that a finding of guilt based on such evidence cannot be 

sustained. Id.

[9-15] Sollman was charged with motor vehicle homicide, 

which is defined in § 28-306. Section 28-306(1) provides 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 or in violation of any city 

or village ordinance commits motor vehicle homicide.” Section 

28-306(3)(b) further provides:

If the proximate cause of the death of another is the operation of a motor vehicle in violation of section 60-6,196 

or 60-6,197.06, motor vehicle homicide is a Class IIA 

felony. The court shall, as part of the judgment of conviction, order the person not to drive any motor vehicle 

for any purpose for a period of at least one year and not 

more than fifteen years and shall order that the operator’s 

license of such person be revoked for the same period.

Sollman argues that the State failed to prove that Sollman’s 

actions here were the proximate cause of the victim’s death. 

In support of that argument, he cites to State v. Irish, 292 Neb. 

513, 520-21, 873 N.W.2d 161, 167-68 (2016), wherein the 

Nebraska Supreme Court set forth the requirements for establishing proximate cause in the criminal context, holding:

The concept of proximate causation is applicable in 

both criminal and tort law, and the analysis is parallel 
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in many instances. As a general matter, to say one event 

proximately caused another is a way of making two 

separate but related assertions: First, it means the former 

event caused the latter; second, it means that it was not 

just any cause, but one with a sufficient connection to 

the result. The idea of proximate cause, as distinct from 

actual cause or cause in fact, is a flexible concept that 

generally refers to the basic requirement that there must 

be some direct relation between the injury asserted and 

the injurious conduct alleged. A requirement of proximate cause serves to preclude liability in situations where 

the causal link between conduct and result is so attenuated that the consequence is more aptly described as 

mere fortuity.

Proximate causation and “but for” causation are interrelated. A “proximate cause” is a moving or effective 

cause or fault which, in the natural and continuous 

sequence, unbroken by an efficient intervening cause, 

produces a death or injury and without which the death 

or injury would not have occurred. Three basic requirements must be met in establishing proximate cause: (1) 

that without the misconduct, the injury would not have 

occurred, commonly known as the “but for” rule; (2) that 

the injury was a natural and probable result of the misconduct; and (3) that there was no efficient intervening 

cause. Criminal conduct is a proximate cause of the event 

if the event in question would not have occurred but for 

that conduct; conversely, conduct is not a proximate cause 

of an event if that event would have occurred without 

such conduct. Thus, “but for” causation is encompassed 

within proximate causation.

Sollman attempts to argue here that the victim’s negligence 

in pulling out in front of Sollman’s vehicle and failing to yield 

to him was an efficient intervening cause of the accident and 

the victim’s death. More specifically, Sollman argues that 

“[b]ecause the State does not dispute the accident would not 
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have happened if [the victim] had not pulled out in front of . . . 

Sollman, the State failed to prove the absence of an efficient 

intervening cause, and as a result, failed to prove proximate 

cause.” Brief for appellant at 11.

But Sollman’s simplified argument misconstrues the concept 

of intervening cause as it relates to this record. Whereas it is 

true that there was evidence that the victim failed to yield the 

right of way to Sollman, there was also evidence that but for 

Sollman’s excessive speed and delayed reaction to the victim’s 

pulling out, the accident would have been avoided. Thus, there 

was evidence in this record that both parties’ conduct, in fact, 

contributed to the accident here.

[16] The Nebraska Supreme Court addressed the impact of 

contributing factors to an accident, as it relates to proximate 

cause, in State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016). 

In so doing, the court held:

A reasonable trier of fact could find “but for” causation 

in this case. If [the defendant] had not been driving the 

pickup while under the influence, his passenger would not 

have been seriously injured when [he] failed to negotiate 

a curve and rolled the pickup, leading to the ejection of 

the passenger. There is a causal nexus between [his] act 

of driving while under the influence and the passenger’s 

serious bodily injury; such injury did not merely occur 

while [he] was driving.

The presence of other factors combining with [the 

defendant’s] act of driving while under the influence does 

not defeat “but for” causation. [He] argues that “but for” 

causation cannot be established due to other considerations such as vehicle speed, road construction, failure 

of the passenger to wear a seatbelt, and snow and ice 

on the road. We find helpful the following explanation 

of the U.S. Supreme Court: “Thus, ‘where A shoots B, 

who is hit and dies, we can say that A [actually] caused 

B’s death, since but for A’s conduct B would not have 

died.’ . . . The same conclusion follows if the predicate 
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act combines with other factors to produce the result, 

so long as the other factors alone would not have done 

so—if, so to speak, it was the straw that broke the camel’s 

back. Thus, if poison is administered to a man debilitated 

by multiple diseases, it is a but-for cause of his death 

even if those diseases played a part in his demise, so long 

as, without the incremental effect of the poison, he would 

have lived.” The other factors to which [the defendant] 

points may have combined with [his] act of driving to 

produce the result, but a reasonable trier of fact could 

conclude that the other factors alone would not have done 

so. And [his] act of driving while under the influence was 

an independently sufficient cause of the passenger’s serious bodily injury. Thus, “but for” causation exists.

A reasonable trier of fact could also conclude that the 

passenger’s serious bodily injury was a direct and natural 

result of [the defendant’s] act of driving the pickup while 

under the influence of alcohol and that no intervening 

cause superseded and severed the causal link. An intervening cause supersedes and cuts off the causal link only 

when the intervening cause is not foreseeable. The other 

factors that [he] claims contributed to the accident were 

not efficient intervening causes, because they were foreseeable. And, as noted, there was sufficient causal connection between [his] act of driving while under the influence of alcohol and the resulting serious bodily injury to 

[his] passenger.

State v. Irish, 292 Neb. at 521-22, 873 N.W.2d at 168.

The same can be said here. A reasonable trier of fact could 

find “but for” causation in this case. If Sollman had not been 

driving nearly 20 m.p.h. over the speed limit while intoxicated, this accident could have been avoided notwithstanding 

the victim’s failure to yield. There is a causal nexus between 

Sollman’s act of driving while impaired at an excessive rate of 

speed and with delayed reaction time and this collision, which 

resulted in the victim’s death.
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A reasonable trier of fact could also conclude the victim’s 

death was a direct and natural result of Sollman’s act of driving 

his vehicle at an excessive rate of speed while under the influence of alcohol with limited reaction time and that no intervening cause superseded and severed the causal link.

In making that determination, we are mindful of Sollman’s 

argument that the victim’s negligence here was an efficient 

intervening cause which itself was the proximate cause of the 

accident. Sollman argues that the victim’s conduct in failing to 

yield to Sollman severed his negligence in operating his vehicle 

while under the influence at an excessive rate of speed and 

should have resulted in the court’s directing a verdict here.

[17,18] But a similar argument was made by the defendant 

in Wilke v. Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370 

(2009). In addressing the doctrine of efficient intervening 

cause, the Nebraska Supreme Court held:

An efficient intervening cause is new and independent 

conduct of a third person, which itself is a proximate 

cause of the injury in question and breaks the causal 

connection between the original conduct and the injury. 

The causal connection is severed when (1) the negligent 

actions of a third party intervene, (2) the third party had 

full control of the situation, (3) the third party’s negligence could not have been anticipated by the defendant, 

and (4) the third party’s negligence directly resulted in 

injury to the plaintiff. The doctrine that an intervening 

act cuts off a tort-feasor’s liability comes into play only 

when the intervening cause is not foreseeable. But if a 

third party’s negligence is reasonably foreseeable, then 

the third party’s negligence is not an efficient intervening 

cause as a matter of law.

Id. at 816-17, 774 N.W.2d at 383. Applying that doctrine, like 

in State v. Irish, 292 Neb. 513, 873 N.W.2d 161 (2016), the 

court found there was evidence in the record a jury could find 

that the alleged intervening act was reasonably foreseeable, 

thereby precluding judgment as a matter of law on the issue.
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[19,20] And more recently, in addressing the issue of 

foreseeability in cases such as these, the Nebraska Supreme 

Court held:

“[U]nder the Restatement (Third), foreseeable risk is an 

element in the determination of negligence, not legal 

duty. In order to determine whether appropriate care was 

exercised, the fact finder must assess the foreseeable risk 

at the time of the defendant’s alleged negligence. The 

extent of foreseeable risk depends on the specific facts of 

the case and cannot be usefully assessed for a category 

of cases; small changes in the facts may make a dramatic 

change in how much risk is foreseeable. Thus, courts 

should leave such determinations to the trier of fact 

unless no reasonable person could differ on the matter. 

And if the court takes the question of negligence away 

from the trier of fact because reasonable minds could 

not differ about whether an actor exercised reasonable 

care (for example, because the injury was not reasonably 

foreseeable), then the court’s decision merely reflects 

the one-sidedness of the facts bearing on negligence 

and should not be misrepresented or misunderstood as 

involving exemption from the ordinary duty of reasonable care.”

Latzel v. Bartek, 288 Neb. 1, 17, 846 N.W.2d 153, 165 (2014), 

quoting A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 

784 N.W.2d 907 (2010).

Taking these cases together, unless reasonable minds cannot differ, the issue of whether the victim’s negligent act was 

foreseeable here was a question of fact for the trier of fact. 

This is not a case where reasonable minds could not differ. 

Applying a similar rationale in Vilas v. Steavenson, 242 Neb. 

801, 496 N.W.2d 543 (1993), overruled on other grounds, 

DeWester v. Watkins, 275 Neb. 173, 745 N.W.2d 330 (2008), 

the Nebraska Supreme Court held that where there was no 

evidence in the case that the third party’s negligence was not 

reasonably foreseeable, the district court did not err in finding 
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that the third party’s negligence was not an efficient intervening cause. We reach the same conclusion here. The record in 

the instant case is devoid of evidence that Sollman could not 

have anticipated that the victim would misjudge his speed and 

enter the intersection. And the record contains evidence that 

Clausen came to a stop before entering the intersection, waited 

for two cars to pass, then proceeded into the intersection, and 

had Sollman been traveling at the posted speed, the accident 

could have been avoided. This became an issue of fact for the 

trier of fact in this case. In short, the record indicates evidence 

of a sufficient causal connection between Sollman’s act of 

driving under the influence of alcohol and the victim’s death 

here. See, also, State v. Brown, 258 Neb. 330, 603 N.W.2d 419 

(1999) (victim’s negligence cannot act to absolve defendant in 

motor vehicle homicide case unless victim’s actions were sole 

proximate cause of accident); State v. William, 231 Neb. 84, 

435 N.W.2d 174 (1989) (contributory negligence not defense 

to charge of motor vehicle homicide). Under the standards of 

review governing a motion to dismiss or in reviewing the sufficiency of the evidence established above, we determine the 

court did not err in overruling Sollman’s motion to dismiss or 

in finding for the State on the issue of proximate cause. This 

first assignment of error fails.

2. Hearsay Objection 

to Exhibit 5

Sollman next argues that the district court erred in admitting 

exhibit 5 over his hearsay objection. Exhibit 5 was a medical 

record issued by the UNMC which contained an entry from 

a UNMC clinical laboratory which indicated that Sollman’s 

blood alcohol content was .197 of a gram of alcohol per 100 

milliliters of blood on February 1, 2019, following the accident. Hill testified that test and the resulting record were a 

component part of Sollman’s medical treatment, Sollman’s 

having been admitted as a trauma patient, which treatment 

includes drawing a blood sample.
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[21] Sollman’s counsel objected to the admission of exhibit 

5 on hearsay grounds. Sollman argues that the report itself 

“contains assertions from some unnamed out-of-court declarant.” Brief for appellant at 16. He then argues that in regard to 

Hill’s testimony which laid foundation for the record:

The problem with . . . Hill’s testimony is she did not complete the testing on the samples taken from . . . Sollman; 

she was merely the phlebotomist who drew blood and 

then sent the sample through a zip tube. . . .

. . . [T]here was no evidence in the record regarding 

[the] testing procedure that produced Exhibit 5. Drawing 

blood and sending the sample through a zip tube does not 

overcome the elements of hearsay to admit the lab results 

in evidence, and the District Court should have sustained 

. . . Sollman’s objection to Exhibit 5.

Id. at 16-17. The State responds by claiming that although 

the record contains hearsay statements, which are out-of-court 

statements made by a human declarant that are offered in 

evidence to prove the truth of the matter asserted, see State 

v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008), and 

which are not admissible without exception, statements made 

for purposes of medical diagnoses or treatment are excepted 

from the hearsay rule by Neb. Rev. Stat. § 27-803(3) (Reissue 

2016). But the State further argues that even if the report is 

deemed hearsay,

the State produced additional evidence of Sollman’s 

[blood alcohol content] the night of the accident in the 

form of [a Douglas County sheriff’s office forensic laboratory report], which is more than capable of establishing 

his [blood alcohol content] after the accident in a fashion 

more customary in DUI investigations and prosecutions.

Brief for appellee at 29.

We find the State’s second argument dispositive here, so 

we do not reach the first. The State presented clear testimony 

at trial that it procured a warrant and legally determined 

Sollman’s blood alcohol content, which evidence it offered 
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through the testimony of Tysor, a forensic chemist. Even 

Sollman’s brief acknowledges that because Tysor explained 

that “she had a Class A permit, was familiar with [t]itle 177 [of 

the Nebraska Administrative Code], and testified to the various 

instruments and testing procedures she used[,] Sollman did not 

object to her testimony.” Brief for appellant at 17. As such, the 

evidence offered by Tysor came in without objection and established that Sollmon was still over the legal limit nearly 3 hours 

after the accident. The State asserts this evidence adequately 

supports the verdict regardless of evidence from the separate 

test provided in exhibit 5.

In response to the evidence offered by Tysor, and the State’s 

argument here, Sollman argues that the results of this test 

were taken at 9:21 p.m., nearly 3 hours after the accident, 

and that there were no calculations performed to estimate the 

metabolism of the sample back to the time of the accident. 

Accordingly, he argues that the evidence relating to this second 

test was not sufficient to support the verdict and further demonstrates how the first result created prejudicial error.

[22-24] But a similar temporal-based argument was made 

by the defendant in State v. Dinslage, 280 Neb. 659, 664, 

789 N.W.2d 29, 34 (2010), in which the Nebraska Supreme 

Court held:

In State v. Kubik, [235 Neb. 612, 456 N.W.2d 487 

(1990),] we explained that the State is not required to 

prove a temporal nexus between the test and the defendant’s alcohol level at the moment he or she was operating the vehicle. It would be an impossible burden on the 

State to conduct such an extrapolation when its accuracy 

depends on the defendant’s willingness to testify and his 

or her honesty in reporting all relevant factors, including 

the time and quantity of consumption. Thus, matters of 

delay between driving and testing are properly viewed as 

going to the weight of the breath test results, rather than 

to the admissibility of the evidence. And a valid breath 

test given within a reasonable time after the accused 
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was stopped is probative of a violation. We speculated in 

Kubik that there might in some cases be a “delay . . . so 

substantial as to render the test results nonprobative of 

the accused’s impairment or breath alcohol level while 

driving.” But we held that a breath test given “less than 

1 hour” after the defendant was stopped did not entail an 

unreasonable delay.

We similarly find that under the circumstances of this case, 

this valid blood test was obtained within a reasonable time 

after the motor vehicle accident which resulted in severe 

injuries to Sollman and the death of the victim. In so finding, 

we are cognizant of the facts that this accident took place at 

the outskirts of the Omaha, Nebraska, metropolitan area; that 

Sollman had to be extricated from his vehicle, “life flighted” 

to UNMC, and treated for injuries; and that Deputy Sanderson 

arrived at the scene, drafted a blood draw warrant, had it authorized by a judge, then drove to UNMC in order to locate personnel to collect the blood sample from Sollman. Under these 

circumstances, we cannot find the nearly 3 hours it took to 

obtain the blood sample pursuant to the warrant unreasonable. 

Further, there is no evidence in this record that Sollman, who 

was experiencing a serious medical condition, had consumed 

additional alcohol after the accident but before the blood test. 

The test sample, as attested by Tysor, was validly drawn and 

tested, and the results indicated Sollman was significantly 

over the legal limit nearly 3 hours after the accident. This evidence of Sollman’s alcohol-based impairment was consistent 

with testimony which described the erratic nature in which 

Sollman operated his vehicle just prior to, and at the time of, 

the accident.

[25-29] As the Nebraska Supreme Court held in State v. 

Kidder, 299 Neb. 232, 243-45, 908 N.W.2d 1, 9-10 (2018):

Pursuant to Neb. Evid. R. 103, Neb. Rev. Stat. 

§ 27-103(1) (Reissue 2016), “[e]rror may not be predicated upon a ruling which admits or excludes evidence 

unless a substantial right of the party is affected[.]” 
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When it comes to evidentiary error, this statutory authority forms the foundation for this court’s harmless error 

jurisprudence. Generally speaking, in criminal cases, the 

purpose of harmless error review is to ensure convictions 

are not set aside “‘for small errors or defects that have 

little, if any, likelihood of having changed the result of 

the trial.’”

Harmless error jurisprudence recognizes that not all 

trial errors, even those of constitutional magnitude, entitle 

a criminal defendant to the reversal of an adverse trial 

result. It is only prejudicial error, that is, error which cannot be said to be harmless beyond a reasonable doubt, 

which requires that a conviction be set aside.

When determining whether an alleged error is so prejudicial as to justify reversal, courts generally consider 

whether the error, in light of the totality of the record, 

influenced the outcome of the case. In other words, harmless error review looks to the basis on which the jury 

actually rested its verdict. The inquiry is not whether 

in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the 

actual guilty verdict rendered was surely unattributable 

to the error.

In conducting this analysis, an appellate court looks 

to the entire record and views the erroneously admitted 

evidence relative to the rest of the untainted, relevant 

evidence of guilt. Overwhelming evidence of guilt can be 

considered in determining whether the verdict rendered 

was surely unattributable to the error, but overwhelming 

evidence of guilt is not alone sufficient to find the erroneous admission of evidence harmless. An additional consideration is whether the improperly admitted evidence 

was cumulative and tended to prove the same point as 

other properly admitted evidence.

Assuming without deciding that the court erred in allowing the admission of exhibit 5, which included additional 
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evidence that Sollman’s blood alcohol level exceeded the legal 

limit, the admission of that evidence was simply cumulative to 

the properly admitted evidence that Sollman’s blood alcohol 

level exceeded the legal limit as attested by Tysor. The record 

in this case affirmatively demonstrates that any error in allowing the admission of exhibit 5 was harmless. Accordingly, this 

assignment of error fails.

3. Sufficiency of Evidence 

on Count 2—DUI

Sollman next argues that there was insufficient evidence to 

convict him of DUI, in violation of § 60-6,196(1)(b). Section 

60-6,196(1) provides, in pertinent part: “It shall be unlawful 

for any person to operate or be in the actual physical control of 

any motor vehicle . . . [w]hen such person has a concentration 

of eight-hundredths of one gram or more by weight of alcohol 

per one hundred milliliters of his or her blood.”

[30,31] 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. Smith, 302 Neb. 154, 

922 N.W.2d 444 (2019). When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, 

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. 

Williams, 306 Neb. 261, 945 N.W.2d 124 (2020).

Applying this standard, the evidence reflects that following this serious accident, investigators determined Sollman 

to have been the operator of a vehicle traveling at an excessive rate of speed just prior to the accident and to have been 

driving erratically immediately prior thereto; that while being 

extricated from his vehicle, Sollman smelled of alcohol; that 

investigators found an empty bottle of alcohol in his vehicle; 
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and that through the use of a warrant, investigators obtained 

a blood sample when Sollman became reasonably available 

to provide it which revealed Sollman’s blood alcohol level 

significantly exceeded the legal limit nearly 3 hours after 

his being involved in the accident, which resulted in the victim’s death. Although Sollman argues the temporal connection 

involving the blood test in relation to the accident should result 

in a finding that the evidence here was insufficient to convict 

him, we have already found that such evidence was probative 

of Sollman’s condition under these circumstances, and taking it 

together with all the evidence viewed in the light most favorable to the State, we hold that a rational trier of fact could have 

found the essential element of this crime beyond a reasonable 

doubt. This assignment of error fails.

4. Motion to Dismiss and Finding of 

Guilt—Wanton Disregard

Sollman next argues that there was insufficient evidence to 

convict him of operating a motor vehicle in such a manner as 

to indicate an indifferent or wanton disregard for the safety of 

persons or property, in violation § 60-6,213.

Without repeating the full scope of review governing sufficiency of the evidence determination cited above, we review 

the record to determine whether the evidence in this record 

is sufficient to find that a rational trier of fact could find that 

Sollman operated his vehicle in a manner which would indicate 

an indifferent or wanton disregard for the safety of persons or 

property, in violation of § 60-6,213. We find that it is.

Although Sollman acknowledges the evidence of his excessive speed, he argues that the speed of a defendant’s vehicle 

alone is not, in and of itself, determinative of a violation of 

§ 60-6,213, citing State v. Howard, 253 Neb. 523, 571 N.W.2d 

308 (1997). But the evidence in this record was not limited to Sollman’s excessive speed. It included the testimony 

of Nowling, who discussed the erratic nature of Sollman’s 

conduct leading up to the accident. In relation to that testimony, Sollman argues that “Nowling never identified . . . 
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Sollman as the driver [of the vehicle that he observed] at any 

point during trial” and “Nowling testified that he was unable 

to see the driver’s face despite the fact he observed the driver 

stand on the side of the road next to his car.” Brief for appellant at 19-20.

Regardless of whether Nowling could not specifically identify Sollman’s face, his testimony was sufficient to identify 

that it was Sollman’s vehicle he observed driving in an erratic 

fashion just prior to the accident, and we will not resolve 

conflicts in the evidence, pass on the credibility of witnesses, 

or reweigh the evidence. The testimony of the investigators 

here taken together with the testimony of Nowling was sufficient for a rational trier of fact to find the essential element 

of this offense beyond a reasonable doubt. This assignment of 

error fails.

5. Motion to Suppress

Sollman’s fifth assigned error is that the district court 

erred in overruling his motion to suppress the statements he 

made to law enforcement while in the hospital recovering 

from his injuries. Sollman argues that at no time prior to his 

conversations with Deputy Sanderson or Sergeant Percifield 

was he advised of his Miranda rights and that any incriminating statement made during those conversations should have 

been suppressed.

[32-38] The Nebraska Supreme Court has recognized that 

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 unless the prosecution demonstrates the use of procedural safeguards that are effective to 

secure the privilege against self-incrimination. State v. Benson, 

305 Neb. 949, 943 N.W.2d 426 (2020). More specifically, the 

court held:

Miranda requires law enforcement to give a particular set 

of warnings to a person in custody before interrogation, 

including that he or she has the right to remain silent, that 

any statement he or she makes may be used as evidence 
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against him or her, and that he or she has the right to 

an attorney. These warnings are considered prerequisites 

to the admissibility of any statement made by a defendant 

during custodial interrogation.

Miranda warnings are required only when a suspect 

interrogated by the police is in custody. The ultimate 

inquiry for determining whether a person is in custody is 

whether there is a formal arrest or restraint on freedom 

of movement of degree associated with a formal arrest. 

Custody is to be determined based on how a reasonable 

person in the suspect’s situation would perceive his or 

her circumstances. Stated another way, a seizure under 

the Fourth Amendment occurs only if, in view of all 

the circumstances surrounding the incident, a reasonable 

person would have believed that he or she was not free 

to leave.

In considering whether a suspect is in custody for 

Miranda purposes, relevant considerations include, but 

are not limited to the location of the interaction, who 

initiated the interaction, the duration of the interaction, 

the type and approach of questioning, the freedom of 

movement of the suspect, the duration of the interaction, 

and whether the suspect was placed under arrest at the 

termination of the interaction.

State v. Benson, 305 Neb. at 963-64, 943 N.W.2d at 439-40.

Applying this doctrine, Sollman argues that the investigating 

officers’ questions here amounted to a custodial interrogation. 

In furtherance of that position, Sollman argues:

Because the District Court made a factual finding that 

officers were conducting a DUI investigation when they 

interviewed . . . Sollman at the hospital, and he had three 

broken limbs, it is clear that . . . Sollman was unable 

to leave during questioning even if he wanted to. These 

facts amount to . . . Sollman[’s] being under custodial 

interrogation, just like in Mincey v. Arizona, 437 U.S. 

385[, 98 S. Ct. 2408, 57 L. Ed. 2d 290] (1978), where 

the defendant was in great pain while in the hospital, 
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and the United States Supreme Court determined he was 

under custodial interrogation.

Brief for appellant at 21.

Although the U.S. Supreme Court did find that an investigation of a defendant could ripen into a custodial interrogation 

in a hospital setting, it made that finding on facts dissimilar to 

the case at bar. In Mincey v. Arizona, 437 U.S. 385, 398-99, 98 

S. Ct. 2408, 57 L. Ed. 2d 290 (1978), the hospitalized defendant was not only in “‘unbearable’” pain, but was described 

as being depressed almost to the point of coma; encumbered 

by tubes, needles, and breathing apparatus; and in a condition so severe the Court concluded that his “statements . . . 

were not ‘“the product of a rational intellect and a free will”’” 

and remarked that even “[i]n this debilitated and helpless 

condition, [he] clearly expressed his wish not to be interrogated” by requesting a lawyer and repeatedly asking the officer 

to stop.

The same cannot be said here. Although the record indicates 

Sollman was injured and unable to leave the room without 

assistance, Deputy Sanderson described Sollman as “with it” 

and capable of carrying on a conversation. Deputy Sanderson 

described Sollman as being properly responsive to him and 

able to hold a conversation and indicated that at no time did 

Sollman make an effort to end the interview or express any 

desire to be uncooperative.

The Nebraska Supreme Court reviewed a similar factual 

scenario in State v. Melton, 239 Neb. 506, 476 N.W.2d 842 

(1991). In Melton, a police officer engaged in multiple conversations with the defendant in a hospital following an automobile accident which resulted in the death of his passenger. 

At that time, police were unable to determine the driver of 

the vehicle, so they questioned the defendant while in the 

hospital as part of their ongoing investigation governing the 

incident. Although in a recorded interview, the defendant told 

investigators that his passenger had been driving, the police 

eventually determined that the defendant had been driving. He 
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later moved to suppress statements made during his interview, 

arguing the statements were made during a custodial interrogation and provided without Miranda warnings. On those facts, 

the court in Melton concluded:

We find that [the defendant] was not in custody. He 

was admitted to the hospital for treatment, was not under 

formal arrest, and was questioned by officers during the 

routine course of an accident investigation. Although it 

is not dispositive, [the defendant] did not incriminate 

himself in his statement to the police at the hospital, in 

which statement he denied being the driver of the vehicle 

involved in the accident, the same position he maintained 

at trial.

239 Neb. at 510, 476 N.W.2d at 845.

After reviewing the record in the instant case, we likewise 

find that the officers’ questioning him was part of their routine 

investigation governing this motor vehicle accident and that 

Sollman was not in custody. Although the record indicates 

Sollman could not remove himself from the room without 

assistance, nothing about this record suggests that Sollman’s 

statements were not the “‘“product of a rational intellect and 

a free will”’” or that the officers’ questioning or conduct here 

rose to the level of a custodial interrogation. See Mincey v. 

Arizona, 437 U.S. at 398. We also note that although not dispositive, Sollman’s statements were likewise not incriminating, 

insofar as he denied drinking alcohol immediately prior to the 

accident. We hold that the district court did not err in overruling Sollman’s motion to suppress his statements made from the 

hospital or admitting those same statements during the course 

of the trial.

6. Excessive Sentences

Sollman’s final assignment of error is that the sentences 

imposed are excessive.

Sollman was convicted of count 1, motor vehicle homicide—DUI, a Class IIA felony; count 2, DUI, a Class W 
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misdemeanor; and count 3, reckless driving, a Class III misdemeanor. See, § 28-306(3)(b) (motor vehicle homicide); 

§ 60-6,196 (DUI); § 60-6,213 (reckless driving). Sollman 

was sentenced to 14 to 20 years’ imprisonment and a 15-year 

license revocation on count 1, which sentence is within the 

statutory sentencing range for Class IIA felonies of 0 to 20 

years’ imprisonment. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 

2018). Additionally, the court properly revoked Sollman’s driver’s license for a period of 15 years as is required pursuant to 

§ 28-306(3)(b).

On count 2, the court sentenced Sollman to 60 days’ imprisonment and fined him $500, which sentence is within the statutory sentencing range for Class W misdemeanors, which are 

punishable by a mandatory minimum of 7 days’ imprisonment 

and a $500 fine and a maximum of 60 days’ imprisonment and 

a $500 fine. See Neb. Rev. Stat. § 28-106 (Reissue 2016). The 

court also revoked Sollman’s license for 6 months as required 

by Neb. Rev. Stat. § 60-6,197.03 (Cum. Supp. 2018).

For count 3, reckless driving, the district court sentenced 

Sollman to 90 days’ imprisonment. See § 60-6,213. This sentence is within the statutory sentencing range for Class III 

misdemeanors, which are punishable by 0 to 3 months’ imprisonment and/or a $500 fine. See § 28-106.

[39-41] 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. Montoya, 305 Neb. 581, 941 N.W.2d 474 

(2020). In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant’s (1) 

age, (2) mentality, (3) education and experience, (4) social and 

cultural background, (5) past criminal record or record of lawabiding 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. Id. However, the 
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sentencing court is not limited to any mathematically applied 

set of factors. State v. Manjikian, 303 Neb. 100, 927 N.W.2d 

48 (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. Montoya, supra.

Here, at the sentencing hearing, the district court stated 

that it had considered the contents of the PSR, including 

documentation that Sollman was 46 years old at the time 

of the PSR, was married, and had nine dependent children; 

Sollman’s criminal history and LS/CMI scores; the comments 

made at sentencing; the circumstances surrounding the accident, including Sollman’s intoxication level and speed; and the 

seriousness of the crimes committed by Sollman. The district 

court also noted that Sollman blamed the victim for the accident and that the court found Nowling’s account of the events 

leading up to the accident credible. Further, the court reviewed 

law enforcement’s accident reconstruction and calculations, 

which determined the accident was caused by speeding, but 

the court noted, “The accident was [caused by] an intoxication 

level more than two times the legal limit, excessive speeding 

and erratic driving all the way up to the point in time this 

occurred.” The district court further found that imprisonment 

was necessary to protect the public due to the substantial risk 

that Sollman would engage in additional criminal conduct if 

placed on probation and “a lesser sentence would depreciate the seriousness of the offense or promote disrespect of 

the law.”

The PSR indicated that Sollman’s criminal history includes a 

conviction for theft in Indiana and charges of robbery, criminal 

mischief, and kidnapping in Oregon for which Sollman was 

fined, sentenced to 90 days’ imprisonment, and given 5 years’ 

probation. Further, Sollman’s LS/CMI scores were assessed 

to be in the “Medium/Low risk range to reoffend” (emphasis omitted). However, the probation officer completing the 
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PSR noted that Sollman “does not feel [Clausen] is a victim. 

He regrets his action of drinking the night of [the accident], 

but does not feel he has done anything else wrong.” Sollman’s 

victim-blaming is evident in his defendant’s statement, which 

set forth in pertinent part:

I was involved in a car accident where I had been 

drinking. Unfortunately[, the victim] pulled out from a 

stop sign to turn left right in front of me when I was 

southbound on HWY 6 and had right away [sic]. I was 

seriously injured and [a]ir lifted from the scene and she 

sadly died.

Based upon the district court’s thorough consideration of 

the relevant factors and the information contained in the PSR; 

the fact that the sentences imposed were within the relevant 

statutory sentencing ranges; Sollman’s criminal history; his 

risk to reoffend; the circumstances surrounding the accident, 

including Sollman’s intoxication level and speed; Sollman’s 

refusal to accept responsibility for his role in the offenses and 

continual victim-blaming; and the seriousness of the crimes 

committed by Sollman which resulted in the death of the victim, we determine the sentences imposed were not an abuse 

of discretion.

VI. CONCLUSION

Having considered and rejected Sollman’s assigned errors, 

we affirm his convictions and sentences.

Affirmed.