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there was no material change in circumstances in that case. 

Nonetheless, because I agree with the majority’s conclusion in 

the case before us, I concur.

State of Nebraska, appellee, v

Joshua D. Leibel, appella

___ N.W.2d ___

Filed October 25, 2013. No. S-12-1047.

1. Appeal and Error. An appellate court resolves questions of law and issues of 

statutory interpretation independently of the lower court’s conclusion.

2. Constitutional Law: Witnesses: Appeal and Error. An appellate court 

reviews de novo a trial court’s determination of the protections afforded by 

the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and 

reviews the underlying factual determinations for clear error.

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

trial court.

4. Judgments: Presumptions: Appeal and Error. A judgment of the district 

court brought to an appellate court for review is supported by a presumption 

of correctness.

5. Judgments: Appeal and Error. An appellant challenging a judgment of the district court brought to an appellate court for review must both assign and specifically argue any alleged error.

6. Constitutional Law: Trial: Hearsay. Where testimonial statements are at issue, 

the Confrontation Clause demands that such out-of-court hearsay statements be 

admitted at trial only if the declarant is unavailable and there has been a prior 

opportunity for cross-examination.

7. Public Officers and Employees: Motor Vehicles: Records: Intent. Although 

the employees who create driving records may reasonably believe the records 

will be available for some possible future prosecution, the sole purpose of creating driving records is not to create evidence for trials.

8. Records: Witnesses. Because neutral, bureaucratic information from routinely 

maintained public records is not obtained by use of specialized methodology, there is little, if any, practical benefit to applying the crucible of crossexamination against those who maintain the information.

9. Constitutional Law: Trial: Witnesses: Appeal and Error. The improper admission of statements in violation of the right to confrontation is a trial error subject 

to harmless error review.

10. Constitutional Law: Trial: Proof: Appeal and Error. Where the trial error is 

of a constitutional dimension, the burden must be on the beneficiary of the error 

to prove beyond a reasonable doubt that the error did not contribute to the verdict obtained.
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11. Sentences. 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 Lancaster County: Kar

B. Flowers, Judge. Affirme

Dennis R. Keefe, Lancaster County Public Defender, Scott 

P. Helvie, and Ariel Johnson, Senior Certified Law Student, 

for appellant.

Jon Bruning, Attorney General, and Melissa R. Vincent for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, 

Miller-Lerman, and Cassel,

McCormack, 

NATURE OF CASE

The sentencing order for the defendant’s prior conviction 

of driving under the influence allowed him to drive with an 

ignition interlock permit and device. The defendant failed 

to obtain an ignition interlock permit or device, however, 

before driving. He was convicted of the felony offense of 

driving with a revoked license in violation of Neb. Rev. Stat. 

§ 60-6,197.06(1) (Reissue 2010). The defendant argues that in 

State v. Hernandez,

1

 we held that § 60-6,197.06(1) is ambiguous and that ignition interlock device violations fall under a 

different misdemeanor statute specific to such violations. The 

defendant also asserts that his Department of Motor Vehicles 

(DMV) record and accompanying documents, as well as statements certifying their authenticity, were inadmissible hearsay 

and violated his right to confrontation. Finally, he asserts that 

his sentence was excessive. We affirm.

BACKGROUND

Joshua D. Leibel was charged under § 60-6,197.06 with 

operating a motor vehicle while his operator’s license had 

been revoked, a Class IV felony. Leibel had previously been 

1 State v. Hernandez, 283 Neb. 423, 809 N.W.2d 279 (2012).
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sentenced to 5 years of license revocation for a conviction 

of driving under the influence, third offense. The sentencing 

order specified that Leibel would be permitted to drive after he 

obtained an ignition interlock permit and equipped his vehicle 

with an ignition interlock device.

At the bench trial for the charge of driving with a revoked 

license, the State presented the testimony of a Lincoln police 

officer. The officer testified that on October 3, 2011, he pulled 

Leibel’s vehicle over after observing expired tags on the license 

plates of the vehicle. The officer testified that during the stop, 

Leibel told him that his driver’s license was suspended. The 

officer did not observe an ignition interlock device on the 

vehicle Leibel was driving.

The State also offered into evidence two exhibits. Exhibit 2 

contained a certified copy of the 2011 sentencing order and 

other documents relating to the 2011 conviction. Exhibit 2 was 

admitted without objection.

Exhibit 1 contained the administrative order of revocation 

of Leibel’s driver’s license by the DMV and related DMV 

documents, as well as the “Complete Abstract of Record” for 

Leibel with the DMV. There was no indication in the complete DMV record that Leibel had been issued an ignition 

interlock permit before October 3, 2011. The abstract instead 

reflects that Leibel was issued an ignition interlock permit on 

October 4.

Each page of the abstract and accompanying DMV documents contains either the seal of the DMV or a file stamp. The 

abstract contains an apparent photocopy of a signed certification by a custodian of the records division, Betty Johnson, 

attesting it is a true and correct abstract of the operating 

record. This certification page also contains the raised seal of 

the DMV.

The DMV abstract and accompanying documents were prefaced by a letter written by the DMV program manager, Kathy 

Hraban, certifying that the copies of the DMV record were true 

and exact copies of the originals on file at the DMV. In the letter, Hraban also states that on October 3, 2011, Leibel’s driving 

privileges had not been reinstated and Leibel did not have an 

ignition interlock permit.
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Defense counsel objected to the entirety of exhibit 1 on foundation, relevance, hearsay, and Confrontation Clause grounds. 

The district court overruled Leibel’s objections and received 

the exhibit.

After the close of the State’s case in chief, defense counsel 

moved to dismiss the charges for failure to establish a prima 

facie case. Defense counsel presented no evidence in Leibel’s 

defense and, after resting, renewed his motion to dismiss. 

Defense counsel argued that Leibel should have been charged 

with misdemeanor ignition interlock permit violations and not 

with the felony of driving with a revoked license.

The district court overruled Leibel’s motion to dismiss. The 

court reasoned that Neb. Rev. Stat. § 60-6,211.05(5) (Reissue 

2010) applied to persons who had obtained their ignition 

interlock permit as allowed by the sentencing order, while 

§ 60-6,197.06 applied to persons who had failed to obtain their 

ignition interlock permit.

The district court found Leibel guilty of violating 

§ 60-6,197.06(1). At the sentencing hearing, Leibel explained 

that he had been relying on his girlfriend to drive him around, 

but they broke up. He lives in a rural area and does not have 

access to public transportation. Leibel stated he had finally 

saved up the money to install an ignition interlock device and 

was going to apply for a permit. But before getting the permit, 

he was called into the probation office for a test. He made 

the decision to drive to his probation visit. After the probation visit, Leibel went to work, made a telephone call while 

at work to obtain the necessary car insurance, and went to get 

the ignition interlock device installed. According to Leibel, the 

person able to install the device was not available at that time 

and Leibel was directed to come back the next day. On his way 

home, Leibel was stopped by the police officer.

The court sentenced Leibel to 90 days’ jail time and a 

15-year license revocation. The court reasoned that it was inappropriate to simply place Leibel on probation when the offense 

was a probation violation. Leibel’s presentence investigation 

report indicated multiple misdemeanor offenses and two prior 

convictions of driving with a suspended license, in addition to 

his prior convictions of driving under the influence. The court 
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stated it would allow Leibel the opportunity to drive with an 

ignition interlock device and permit as soon as he was eligible 

by statute; and the court deferred the 90-day jail sentence until 

Leibel could request a work release. Leibel appeals the conviction and sentence, which was deferred until the resolution of 

this appeal.

ASSIGNMENTS OF ERROR

Leibel asserts that the district court erred in (1) admitting 

exhibit 1, (2) failing to apply the reasoning of Hernandez, (3) 

convicting him on insufficient evidence, and (4) imposing an 

excessive sentence.

STANDARD OF REVIEW

[1] An appellate court resolves questions of law and issues 

of statutory interpretation independently of the lower court’s 

conclusion.2

[2] An appellate court reviews de novo a trial court’s determination of the protections afforded by the Confrontation 

Clause of the Sixth Amendment to the U.S. Constitution and 

reviews the underlying factual determinations for clear error.3

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

within the statutory limits absent an abuse of discretion by the 

trial court.4

ANALYSIS

Hearsay and Confro

Leibel first asserts that the court erred in admitting exhibit 

1 over his hearsay and Confrontation Clause objections. He 

points out that without exhibit 1, there would be little evidence 

he violated either the felony statute under which he was convicted or the misdemeanor statute he believes he should have 

been charged with violating. Leibel’s principal argument is 

that both the certificates of authenticity and the DMV records 

to which the certificates pertained were testimonial in nature; 

2 Fox v. Whitbeck, 280 Neb. 75, 783 N.W.2d 774 (2010).

3 State v. Sorensen, 283 Neb. 932, 814 N.W.2d 371 (2012).

4 State v. McGuire, ante p. 494, ___ N.W.2d ___ (2013).
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therefore, their admission without the opportunity to crossexamine violated his right to confrontation. Leibel alternatively 

asserts that the State waived any argument on appeal that 

exhibit 1 was admissible hearsay under the rules of evidence. 

We address Leibel’s rules of evidence argument first.

The parties agree that exhibit 1 contains hearsay. The general rule is that hearsay evidence is inadmissible unless it fits 

within a recognized exception to the rule against hearsay.5

But besides a bare assertion that exhibit 1 was inadmissible, 

Leibel fails to present any argument that the district court 

was incorrect in its implicit determination that the statements therein fit within a recognized exception to the rule 

against hearsay. Instead, Leibel argues that because the State 

failed to articulate at trial the specific hearsay exception 

under which it claimed admissibility of the exhibit, the State 

waived for purposes of this appeal any argument that exhibit 1 

was admissible.

[4,5] Leibel misunderstands the respective responsibilities 

of the parties on appellate review. A judgment of the district court brought to our court for review is supported by a 

presumption of correctness.6 An appellant challenging that 

judgment must both assign and specifically argue any alleged 

error.7 Thus, an appellant whose hearsay objection was overruled by the trial court has the onus on appeal of showing that 

such statements were in fact hearsay and that no exception to 

or exclusion from the hearsay rule permitted its admission.8

Leibel has failed to sufficiently argue grounds for reversal of 

the district court’s ruling on his hearsay objection. We turn to 

his argument that the admission of exhibit 1 violated his confrontation rights.

[6] Where testimonial statements are at issue, the 

Confrontation Clause demands that such out-of-court hearsay statements be admitted at trial only if the declarant is 

5 See Neb. Rev. Stat. §§ 27-802 and 27-803 (Reissue 2008).

6 See Flood v. Keller, 214 Neb. 797, 336 N.W.2d 549 (1983).

7 State v. Rodriguez, 272 Neb. 930, 726 N.W.2d 157 (2007).

8 See Menorah Medical Center v. Davis, 463 S.W.2d 618 (Mo. App. 1971).
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unavailable and there has been a prior opportunity for crossexamination.9

 There is no argument that the declarants of the 

hearsay statements contained in exhibit 1 were unavailable 

and that Leibel had a prior opportunity to cross-examine them. 

Whether Leibel’s right to confrontation was violated thus 

depends entirely on whether the statements contained in the 

DMV records and in the certifications of those records were 

“testimonial.” This presents an issue of first impression for 

our court.

To properly address this issue, a brief examination of the 

U.S. Supreme Court decision Crawford v. Washington,

10 and 

its progeny, is necessary. In Crawford, the U.S. Supreme 

Court held that, at a minimum, testimonial statements include 

formal statements by an accuser to government officers.11

Thus, the wife’s recorded statement during a police interrogation was subject to the Confrontation Clause. Later, in 

Davis v. Washington,

12 the Court similarly concluded that 

statements made during a police interrogation of a victim 

were “testimonial” if directed at establishing the facts of a 

past crime and not directed at current circumstances requiring 

police assistance.13

The Court explained in Crawford that the Confrontation 

Clause was crafted in response to the practice in England of 

reading in lieu of live testimony pretrial examinations of suspects and witnesses, which had previously been conducted by 

justices of the peace or other officials.14 The Court said that 

the “Sixth Amendment must be interpreted with this focus 

in mind.”15

9 See State v. Sorensen, supra note 3.

10 Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 

(2004).

11 See id.

12 Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 

(2006).

13 See Michigan v. Bryant, ___ U.S. ___, 131 S. Ct. 1143, 179 L. Ed. 2d 93 

(2011).

14 Crawford v. Washington, supra note 10.

15 Id., 541 U.S. at 50.
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In Crawford, the Court overruled Ohio v. Roberts,

16 which 

for a quarter of a century had stood for the proposition that the 

confrontation right does not bar admission of ex parte statements bearing adequate “‘“indicia of reliability.”’”17 Thus, 

falling under a firmly rooted hearsay exception or otherwise 

bearing “‘particularized guarantees of trustworthiness,’” no 

longer defined when an ex parte statement was admissible 

without being subject to cross-examination.18 The Court said 

in Crawford that the framers of the Constitution did not mean 

“to leave the Sixth Amendment’s protection to the vagaries 

of the rules of evidence, much less to amorphous notions 

of ‘reliability.’”19

Subsequently, in Melendez-Diaz v. Massachusetts,

20 a more 

divided Court held that in a trial on charges of distributing cocaine, forensic analysis certifications that the substance 

seized from the defendant was cocaine, were “testimonial.” 

A plurality of the Court similarly held in Bullcoming v. New 

Mexico,

21 that ex parte statements certifying the results of 

the gas chromatograph machine, and prepared for a trial on 

charges for driving under the influence, were “testimonial.” 

The Court in Bullcoming rejected the idea that the analyst 

was not an “‘“accuser,”’”22 and thus did not fall under the 

Sixth Amendment protection to be confronted with the “witnesses against him.” The Court noted in Melendez-Diaz that 

the analysts “prov[ed] one fact necessary for [the defendant’s] conviction.”23

16 Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980).

17 Michigan v. Bryant, supra note 13, 131 S. Ct. at 1152.

18 Crawford v. Washington, supra note 10, 541 U.S. at 60.

19 Id., 541 U.S. at 61.

20 Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. 

Ed. 2d 314 (2009).

21 Bullcoming v. New Mexico, ___ U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 

610 (2011).

22 Id., 131 S. Ct. at 2714.

23 Melendez-Diaz v. Massachusetts, supra note 20, 557 U.S. at 313. Accord 

Bullcoming v. New Mexico, supra note 21.
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In both Melendez-Diaz and Bullcoming, the Court took pains 

to point out that the analysts were not “‘mere scrivener[s].’”24

The Court in Bullcoming noted that the analyst had also certified that he received the blood sample intact, had adhered to 

a precise protocol in conducting the test, and had observed no 

circumstance or condition affecting the integrity of the sample 

or the validity of the analysis.25 The Court in Melendez-Diaz 

explained at length how the scientific testing at issue in that 

case was not “immune from the risk of manipulation.”26

In Melendez-Diaz, the Court explicitly endorsed the “‘[v]arious formulations’” of the “‘core class of testimonial statements,’” which it had first noted in Crawford.27 That list 

included “‘ex parte in-court testimony or its functional equivalent,’” “‘similar pretrial statements that declarants would reasonably expect to be used prosecutorially,’” and “‘statements 

that were made under circumstances which would lead an 

objective witness reasonably to believe that the statement[s] 

would be available for use at a later trial.’”28 Specific examples 

falling under these formulations included affidavits, depositions, prior testimony, confessions, custodial examination, and 

other formalized testimonial materials.29

The Court said in Melendez-Diaz that “the paradigmatic 

case identifies the core of the right to confrontation, not its 

limits.”30 But, most recently, in Williams v. Illinois,

31 the Court 

said that “any further expansion [beyond the ‘modern-day 

practices that are tantamount to the abuses that gave rise to 

the recognition of the confrontation right’] would strain the 

constitutional text.”

24 Bullcoming v. New Mexico, supra note 21, 131 S. Ct. at 2714.

25 Id.

26 Melendez-Diaz v. Massachusetts, supra note 20, 557 U.S. at 318.

27 Id., 557 U.S. at 310.

28 Id.

29 Id.

30 Id., 557 U.S. at 315.

31 Williams v. Illinois, ___ U.S. ___, 132 S. Ct. 2221, 2242, 183 L. Ed. 2d 89 

(2012).
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Apparently to limit such further expansion of Crawford, 

several principles have “weaved in and out of the Crawford 

jurisprudence.”32 The U.S. Supreme Court said in Davis

that “formality” is “essential to testimonial utterance.”33 In 

Michigan v. Bryant,

34 the Court noted that there can be “mixed 

motives” for a statement and that the proper inquiry is whether 

the declarant’s “primary purpose” is “testimonial.” The Court 

in Bryant further said that “[i]n making the primary purpose 

determination, standard rules of hearsay, designed to identify 

some statements as reliable, will be relevant.”35

Finally, in Williams, the Court focused on whether the “primary purpose” of the out-of-court statement was to “accus[e] 

a targeted individual” of engaging in criminal conduct.36 The 

Court found that an analyst’s results from an independent 

laboratory conducting DNA testing on samples taken from the 

victim before any suspect was identified were not testimonial.37 The Court explained that because there was no targeted 

individual at the time of testing, there was “no ‘prospect of 

fabrication’ and no incentive to produce anything other than 

a scientifically sound and reliable profile.”38 Furthermore, in 

contrast to the attestations that were found to be “testimonial” 

in Melendez-Diaz and Bullcoming, the Court found it “significant” that due to the way the work of a DNA laboratory was 

divided up, “it is likely that the sole purpose of each technician 

[was] simply to perform his or her task in accordance with 

accepted procedures.”39

We have applied Crawford and its progeny to conclude 

that calibration certifications of alcohol breath simulator 

32 Bullcoming v. New Mexico, supra note 21, 131 S. Ct. at 2725 (Kennedy, J., 

dissenting; Bryer, C.J., and Alito, J., join).

33 Davis v. Washington, supra note 12, 547 U.S. at 830 n.5.

34 Michigan v. Bryant, supra note 13, 131 S. Ct. at 1161, 1155.

35 Id., 131 S. Ct. at 1155.

36 Williams v. Illinois, supra note 31, 132 S. Ct. at 2242.

37 Id.

38 Id., 132 S. Ct. at 2244.

39 Id.
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solutions40 and documents certifying the accuracy of tuning 

forks for an officer’s radar unit,41 created in the course of 

routine duties at a time when they did not pertain to any particular pending matter, were not testimonial. In contrast, we 

have held that a certificate that a blood specimen was taken 

in “a medically acceptable manner,” prepared at the request of 

law enforcement in connection with the arrest of the defendant, was testimonial.42 We have never addressed whether 

public records or certifications of those public records that 

are prepared for the purpose of a pending prosecution are 

testimonial.

[7] We agree with numerous other courts that hold driving 

records are not testimonial.43 In Melendez-Diaz, the Court said 

that unless the regularly conducted activity of the business is 

the production of evidence for use at trial, business records 

are not testimonial.44 They are “created for the administration 

of an entity’s affairs and not for the purpose of establishing or 

proving some fact at trial.”45 Although the employees who create driving records may reasonably believe the records will be 

available for some possible future prosecution, the sole purpose 

of creating driving records is not to create evidence for trials.46

The creation and maintenance of driving records is a ministerial duty for the benefit of the public,47 utilized by drivers for 

many purposes, including the procurement of insurance or of 

40 State v. Britt, 283 Neb. 600, 813 N.W.2d 434 (2012); State v. Fischer, 272 

Neb. 963, 726 N.W.2d 176 (2007).

41 State v. Jacobson, 273 Neb. 289, 728 N.W.2d 613 (2007).

42 State v. Sorensen, supra note 3, 283 Neb. at 937, 814 N.W.2d at 377.

43 See, e.g., State v. King, 213 Ariz. 632, 146 P.3d 1274 (Ariz. App. 2006); 

Card v. State, 927 So. 2d 200 (Fla. App. 2006); State v. Shipley, 757 

N.W.2d 228 (Iowa 2008); Com. v. McMullin, 76 Mass. App. 904, 923 

N.E.2d 1062 (2010); State v. Vonderharr, 733 N.W.2d 847 (Minn. App. 

2007); State v. Davis, 211 Or. App. 550, 156 P.3d 93 (2007).

44 Melendez-Diaz v. Massachusetts, supra note 20.

45 Id., 557 U.S. at 324.

46 See State v. Vonderharr, supra note 43.

47 See, e.g., Neb. Rev. Stat. § 60-483 (Reissue 2010). See, also, State v. 

Vonderharr, supra note 43.
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commercial driving licenses.48 It is clear that driving records 

do not fit within any of the U.S. Supreme Court’s articulations 

of the “testimonial” test. Rather, they are prepared during routine duties at a time when they do not pertain to any particular 

pending matter. DMV employees, in such circumstances, are 

not “accusers” against a defendant.

Johnson’s signature certifying that the driving abstract represented a true and exact copy of Leibel’s operating record and 

Hraban’s certification of authenticity of the abstract and its 

accompanying DMV documents present a more complex question. Johnson’s signature was required for the admissibility of 

the driving abstract as a self-authenticating official record.49

Hraban’s signature was necessary for the admission of the 

accompanying documents.50

Read expansively, Melendez-Diaz might be interpreted to 

include sworn certificates that authenticate and summarize routine governmental records.51 After all, such certifications are 

solemn statements “‘made under circumstances which would 

lead an objective witness reasonably to believe that the statement would be available for use at a later trial.’”52

Yet most courts have determined that such certifications are 

not testimonial.53 Put most simply, if “‘the records themselves 

do not fall within the constitutional guarantee provided by the 

Confrontation Clause, it would be odd to hold that the foundational evidence authenticating the records do[es].’”54

Interestingly, in Melendez-Diaz, the majority opinion commented that the dissent had identified but “a single class of 

48 See Neb. Rev. Stat. § 60-2907 (Reissue 2010).

49 See Neb. Rev. Stat. § 27-902 (Reissue 2008).

50 See id.

51 State v. Murphy, 991 A.2d 35 (Me. 2010).

52 Crawford v. Washington, supra note 10, 541 U.S. at 52.

53 See, U.S. v. Adefehinti, 510 F.3d 319 (D.C. Cir. 2007); State v. Bennett, 

216 Ariz. 15, 162 P.3d 654 (Ariz. App. 2007); State v. Murphy, supra note 

51; Com. v. McMullin, supra note 43; State v. Vonderharr, supra note 43; 

Jasper v. Com., 49 Va. App. 749, 644 S.E.2d 406 (2007). But see Com. v. 

Parenteau, 460 Mass. 1, 948 N.E.2d 883 (2011).

54 State v. Adefehinti, supra note 53, 510 F.3d at 328.
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evidence which, though prepared for use at trial, was traditionally admissible: a clerk’s certificate authenticating an 

official record—or a copy thereof—for use as evidence.”55

The Court did not explicitly hold that such certifications were 

testimonial, but the Court distinguished traditional certifications from the analyst’s report the Court found testimonial in 

that case. Unlike a clerk’s certificate authenticating an official record, the Court explained, the analyst’s certificate was 

created for “the sole purpose of providing evidence against 

a defendant.”56

As the Court in Melendez-Diaz alluded to and other courts 

have reasoned, certificates of authenticity are not really 

offered to “prov[e] one fact necessary for [the defendant’s] 

conviction.”57 They do not have the “primary purpose of accusing a targeted individual,”58 in the sense that they do not, 

in and of themselves, describe any criminal wrongdoing of 

the defendant.59 The purpose of the certification is merely to 

establish the authenticity of documents that were prepared in 

a nonadversarial setting before the institution of the criminal 

proceeding.60 It was the attached abstract and documents, not 

the certifications, which proved Leibel was driving without an 

ignition interlock permit.61

[8] Records custodians, in the capacity of authenticating 

documents as true and exact copies of the records on file, are 

more akin to the “scriveners,” and the process of certifying the 

authenticity of a public record leaves little room for manipulation or fabrication. “Because neutral, bureaucratic information 

from routinely maintained public records is not obtained by 

use of specialized methodology, there is little, if any, practical 

benefit to applying the crucible of cross-examination against 

55 Melendez-Diaz v. Massachusetts, supra note 20, 557 U.S. at 322.

56 Id., 557 U.S. at 323.

57 Id., 557 U.S. at 313.

58 Williams v. Illinois, supra note 31, 132 S. Ct. at 2225.

59 See Jasper v. Com., supra note 53.

60 See, State v. Shipley, supra note 43; Jasper v. Com., supra note 53.

61 See State v. Bennett, supra note 53.
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those who maintain the information.”62 “[C]ross-examination 

is a tool used to flesh out the truth, not an empty procedure.”63

We conclude that Hraban’s and Johnson’s statements authenticating that the records contained in exhibit 1 were true and 

exact copies, and were not “testimonial.”

Leibel points out, however, that Hraban’s certification went 

beyond the traditional bounds of a records custodian when 

she stated, “I further add that this person did not have a Work 

or Ignition Interlock Permit on 10/03/2011.” The Court in 

Melendez-Diaz, when discussing certifications of authenticity, distinguished certifications by records custodians under 

a “‘“narrowly circumscribed”’” authority to “‘certify to the 

correctness of a copy of a record kept in his office’” from circumstances where a clerk attests, ex parte, that he or she had 

“searched for a particular relevant record and failed to find 

it.”64 The Court explained that, traditionally, a clerk certifying a record had “‘no authority to furnish, as evidence for the 

trial of a lawsuit, his interpretation of what the record contains 

or shows, or to certify to its substance or effect.’”65 Later, in 

Norwood v. United States,

66 the Court vacated a Ninth Circuit 

decision that deemed nontestimonial a clerk’s certification 

of the absence of a fact relevant to the prosecution, upon a 

diligent search of the department’s files. The U.S. Supreme 

Court remanded the cause for further consideration in light 

of Melendez-Diaz.

Hraban’s statement was an “‘interpretation of what the 

record contains or shows.’”67 It was “testimonial” under the 

stated dictum in Melendez-Diaz. Nevertheless, because of 

the continuing evolution of Crawford, courts are divided on 

whether this kind of rote summarization of an attached record 

62 State v. Murphy, supra note 51, 991 A.2d at 43.

63 Crawford v. Washington, supra note 10, 541 U.S. at 74 (Rehnquist, C.J., 

concurring in the judgment; O’Connor, J., joins).

64 Melendez-Diaz v. Massachusetts, supra note 20, 557 U.S. at 322-23.

65 Id., 557 U.S. at 322.

66 Norwood v. United States, 558 U.S. 983, 130 S. Ct. 491, 175 L. Ed. 2d 339 

(2009) (granting petition for writ of certiorari).

67 Melendez-Diaz v. Massachusetts, supra note 20, 557 U.S. at 322.
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is “testimonial.”68 We find the resolution of this particular point 

unnecessary in this case. Even if Hraban’s statement was “testimonial,” it was plainly redundant to the information contained 

in the abstract itself. And because this was a bench trial, there 

was little risk that the finder of fact was unduly influenced 

by this “official” summary of the record or was unable to 

glean the relevant fact from the unsummarized DMV record. 

Any possible violation of Leibel’s right to confrontation was 

undoubtedly harmless.

[9,10] The improper admission of statements in violation 

of the right to confrontation is a trial error subject to harmless error review.69 The U.S. Supreme Court in Chapman v. 

California70 held that where the trial error is of a constitutional dimension, the burden must be on the beneficiary of the 

error to prove beyond a reasonable doubt that the error did 

not contribute to the verdict obtained. This standard applies 

equally to both jury and bench trials.71 We have sometimes 

said that in a bench trial, it is the appellant’s burden to show 

that the trial court made a finding of guilt based exclusively on 

the erroneously admitted evidence; if there is other sufficient 

evidence supporting the finding of guilt, the conviction will 

not be reversed.72 But this rule of expediency has never been 

68 See State v. Woodbury, 13 A.3d 1204 (Me. 2011). Compare Washington v. 

State, 18 So. 3d 1221 (Fla. App. 2009).

69 See, Delaware v. Van Arsdall, 475 U.S. 673, 106 S. Ct. 1431, 89 L. Ed. 2d 

674 (1986); State v. Sorensen, supra note 3; State v. Quintana, 261 Neb. 

38, 621 N.W.2d 121 (2001).

70 Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 

(1967).

71 See, Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171 

(1963) (approved of in Chapman v. California, supra note 70); Robert E. 

Larsen, Navigating the Federal Trial § 13:19 (2013). See, also, Hawkins 

v. LeFevre, 758 F.2d 866 (2d Cir. 1985); Matter of Juvenile Action No. 

97036-02, 164 Ariz. 306, 792 P.2d 769 (Ariz. App. 1990); Gipson v. State,

844 S.W.2d 738 (Tex. Crim. App. 1992); State v. Read, 147 Wash. 2d 238, 

53 P.3d 26 (2002).

72 See, State v. Thompson, 278 Neb. 320, 770 N.W.2d 598 (2009); State v. 

Craigie, 19 Neb. App. 790, 813 N.W.2d 521 (2012); State v. McCurry, 5 

Neb. App. 526, 561 N.W.2d 244 (1997).
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740 286 NEBRASKA REPORTS

clearly applied to constitutional rights, and we will not apply 

a presumption here that would shift the burden of proof to 

the defendant.73

Nevertheless, whether the error is harmless in a particular case depends “upon a host of factors,”74 and we find the 

fact of a bench trial a proper consideration in conducting 

our Chapman harmless error review. Harmless error review 

ultimately looks to the basis on which the trier of fact 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, rather, whether the actual guilty verdict 

rendered in the questioned trial was surely unattributable to the 

error.75 The admission of Hraban’s gratuitous statement summarizing a fact clearly discernible by the district court from the 

attached driving abstract surely did not contribute to the guilty 

verdict in this case.

Finding no merit to Leibel’s assignments of error concerning 

exhibit 1, we turn to Leibel’s assignments of error relating to 

the statute under which he was charged.

73 See, State v. Twohig, 238 Neb. 92, 469 N.W.2d 344 (1991); State v. 

Schroder, 232 Neb. 65, 439 N.W.2d 489 (1989). But see, e.g., State v. 

Harms, 263 Neb. 814, 643 N.W.2d 359 (2002); State v. Lara, 258 Neb. 

996, 607 N.W.2d 487 (2000). See, also, e.g., Note, Applicability of Rules 

of Evidence Where the Judge Is the Trier of Facts in an Action at Law, 42 

Harv. L. Rev. 258 (1928).

74 Delaware v. Van Arsdall, supra note 69, 475 U.S. at 684. See, also, e.g., 

U.S. v. Mohamed, No. 12-2835, 2013 WL 4259495 (8th Cir. Aug. 16, 

2013); U.S. v. Rosalez, 711 F.3d 1194 (10th Cir. 2013), cert. denied No. 

13-5782, 2013 WL 4199989 (U.S. Oct. 7, 2013); U.S. v. Cameron, 699 

F.3d 621 (1st Cir. 2012), cert. denied ___ U.S. ___, 133 S. Ct. 1845, 

185 L. Ed. 2d 850 (2013); State v. Mitchell, 296 Conn. 449, 996 A.2d 

251 (2010); State v. Levell, 128 Haw. 34, 282 P.3d 576 (2012); People v. 

Stechly, 225 Ill. 2d 246, 870 N.E.2d 333, 312 Ill. Dec. 268 (2007); State 

v. Holman, 295 Kan. 116, 284 P.3d 251 (2012); State v. Wille, 559 So. 2d 

1321 (La. 1990); Com. v. Vasquez, 456 Mass. 350, 923 N.E.2d 524 (2010); 

State v. Pradubsri, 403 S.C. 270, 743 S.E.2d 98 (S. C. App. 2013); State 

v. Tribble, 67 A.3d 210 (Vt. 2012); State v. Jasper, 174 Wash. 2d 96, 271 

P.3d 876 (2012).

75 State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).
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STATE v. LEIBEL 741

Cite as 286 Neb. 725

§ 60-6,197.06(1)

Leibel asserts that § 60-6,197.06(1) was not the proper statute under which to charge him. A violation of § 60-6,197.06(1) 

is a Class IV felony. Leibel argues that § 60-6,197.06(1) 

clearly encompasses only those drivers who are operating a 

vehicle during a time when they are ineligible by court order 

to drive even with an ignition interlock device and permit. 

Because he was eligible to drive with a device and permit, 

Leibel claims the State should have instead charged him 

with violating § 60-6,211.05(5). Section 60-6,211.05(5), since 

repealed,76 set forth the misdemeanor offense of driving a 

vehicle without an ignition interlock device “in violation of 

the requirements of the court order.” The relevant language 

of § 60-6,197.06(1) states: “Unless otherwise provided by law 

pursuant to an ignition interlock permit, any person operating 

a motor vehicle . . . while his or her operator’s license has 

been revoked . . . shall be guilty of a Class IV felony.” Section 

60-6,211.05(5) stated in full:

A person who tampers with or circumvents an ignition 

interlock device installed under a court order while the 

order is in effect, who operates a motor vehicle which is 

not equipped with an ignition interlock device in violation of a court order made pursuant to this section, or 

who otherwise operates a motor vehicle equipped with an 

ignition interlock device in violation of the requirements 

of the court order under which the device was installed 

shall be guilty of a Class II misdemeanor.

In Hernandez,

77 we considered whether a driver who had 

a permit but then drove without the ignition interlock device 

committed a felony under § 60-6,197.06(1). We said that the 

introductory exclusionary clause of § 60-6,197.06(1) must 

be read in pari materia with other applicable statutes specifically crafted for ignition interlock device violations, such as 

§ 60-6,211.05(5). We concluded that a driver who operated a 

vehicle with a permit but without an ignition interlock device 

violated § 60-6,211.05(5), instead of § 60-6,197.06(1).

76 See 2011 Neb. Laws, L.B. 667, § 40.

77 State v. Hernandez, supra note 1.
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742 286 NEBRASKA REPORTS

We said that the introductory exclusionary clause of 

§ 60-6,197.06(1) meant “‘unless a person has an [ignition] 

interlock permit.’”78 “[O]ther statutes,” such as § 60-6,211.05(5) 

“charge a person who violates the terms of his or her ignition 

interlock permit.”79

The State argues that Leibel’s conduct is distinguishable 

from the conduct of the defendant in Hernandez because Leibel 

did not obtain a permit before driving without an ignition interlock device. We agree. Section 60-6,197.06(1) states that “any 

person operating a motor vehicle . . . while his or her operator’s 

license has been revoked” is guilty of a Class IV felony under 

that section “[u]nless otherwise provided by law pursuant to an 

ignition interlock permit.” (Emphasis supplied.) For whatever 

reason, the Legislature chose to draw the line at obtaining 

a permit. While the exclusionary clause of § 60-6,197.06(1) 

does not clearly encompass drivers (such as the defendant in 

Hernandez) who obtain a permit but who then drive without 

an ignition interlock device, we find no similar ambiguity 

for drivers who neglect to obtain the permit. One cannot be 

operating a vehicle “provided by law pursuant to an ignition 

interlock permit,” if the driver does not have a permit.80 Leibel 

did not have a permit, and thus, he did not fall under this 

exception to the felony provisions of § 60-6,197.06(1). The 

district court accordingly did not err in convicting Leibel of 

violating § 60-6,197.06(1).

Excessive Sent

[11] Lastly, Leibel asserts that the sentence of 90 days’ 

jail time was excessive. 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.81 Given Leibel’s criminal record and the fact that, 

78 Id. at 427, 809 N.W.2d at 283 (emphasis supplied).

79 Id. (emphasis supplied).

80 See § 60-6,197.06(1) (emphasis supplied).

81 State v. Hamilton, 277 Neb. 593, 763 N.W.2d 731 (2009).
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STATE v. LEIBEL 743

Cite as 286 Neb. 725

as the district court noted, this was a probation violation, we 

conclude that the district court did not abuse its discretion in 

sentencing Leibel to 90 days in jail.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the 

district court.

Affirm