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Nebraska Supreme Court Advance S

301 Nebraska Report

STATE v. THOMPSON

Cite as 301 Neb. 472

State of Nebraska, appellee, v.

Benjamin M. Thompson, app

___ N.W.2d ___

Filed November 2, 2018. No. S-17-952.

1. Judges: Recusal. A recusal motion is initially addressed to the discretion of the judge to whom the motion is directed.

2. Constitutional Law: Search and Seizure: Motions to Suppress: 

Appeal and Error. In reviewing a trial court’s ruling on a motion to 

suppress based on a claimed violation of the Fourth Amendment, an 

appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court’s findings for clear 

error, but whether those facts trigger or violate Fourth Amendment protection is a question of law that an appellate court reviews independently 

of the trial court’s determination.

3. Appeal and Error. Plain error may be found on appeal when an error 

unasserted or uncomplained of at trial, but plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, if uncorrected, would result in damage to the integrity, reputation, and fairness 

of the judicial process.

4. Trial: Judges: Words and Phrases. An ex parte communication occurs 

when a judge communicates with any person concerning a pending or 

impending proceeding without notice to an adverse party.

5. Trial: Judges: Recusal. A judge who initiates or invites and receives 

an ex parte communication concerning a pending or impending proceeding must recuse himself or herself from the proceedings when a litigant 

requests such recusal.

6. Judges: Recusal. A judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances 

of the case would question the judge’s impartiality under an objective 

standard of reasonableness, even though no actual bias or prejudice 

was shown.

Nebraska Supreme Court Online Library

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

11/02/2018 09:11 AM CDT
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STATE v. THOMPSON

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7. 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.

8. 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.

9. 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.

10. 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.

Appeal from the District Court for Douglas County: Gregor

M. Schatz, Judge. Affirmed in part, and in part vacated a

remanded for resentencing.

Thomas C. Riley, Douglas County Public Defender, and Zoë 

R. Wade for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Sta

Papik, and Freudenber

Heavican, 

INTRODUCTION

Benjamin M. Thompson was operating a motor vehicle in 

which his three children were passengers. Thompson’s vehicle 

was struck by another vehicle, resulting in severe injury to 

two of the children. Following a jury trial, Thompson was 

convicted of driving under the influence, fifth offense; two 

counts of child abuse resulting in serious bodily injury; a 

single count of child abuse; and leaving the scene of an 

injury accident. Thompson now appeals from the district 

court’s denial of several pretrial motions, including a motion 
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301 Nebraska Report

STATE v. THOMPSON

Cite as 301 Neb. 472

to recuse, a motion to suppress the results of his blood alcohol testing, and a Franks v. Delaware 1

 motion to exclude the 

results of his blood testing. We affirm Thompson’s convictions, but vacate the sentences imposed and remand the cause 

for resentencing.

BACKGROUND

On October 24, 2016, at approximately 2 p.m., police and 

medical personnel were dispatched to an injury accident near 

the intersection of Sorensen Parkway and 30th Streets in 

Omaha, Nebraska. One of the responding officers spoke to 

Randall Plugge, who reported that he had been involved in the 

accident. Plugge further reported that another vehicle, a white 

Nissan, had also been involved in the accident, but had left the 

scene and was heading north.

Based on this information, an officer drove his cruiser 

north on 30th Street, following a noticeable gouge mark 

in the pavement, to a local park. The officer noted a white 

Nissan automobile in the parking lot, heavily damaged, with 

a man, later identified as Thompson, running from the Nissan 

to a trash can. In making contact with Thompson, the officer 

noted that Thompson’s hands were wet and that he smelled of 

alcohol. Thompson was ordered to the ground, and was handcuffed and arrested. An officer who later processed the scene 

testified at trial that there were both full and empty hard alcohol and beer containers in the car and in the trash can. There 

was also a bottle of lorazepam, prescribed to Thompson, in 

the car.

After being arrested, Thompson reported that his children 

were in the Nissan. The officer observed three children in the 

back seat: a 1-year-old, who was conscious and crying in a car 

seat; a 6-year old, who was slumped over and unconscious; 

and an 8-year-old, who was slumped over and unconscious and 

bleeding from her chin, mouth, and head.

1 Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 

(1978).
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STATE v. THOMPSON

Cite as 301 Neb. 472

The three children were transported to the hospital. The 

1-year-old was hospitalized for 2 days for trauma caused by 

the collision. The 6-year-old was in intensive care for 3 days 

and was diagnosed with a significant and “life-threatening” 

head injury.

The 8-year-old’s condition was worse than those of the 

younger children. Her injuries were life-threatening and 

required a breathing tube and ventilator. A monitor was 

implanted in her brain to monitor swelling. One of her doctors 

testified that on a “Glasgow Coma Score,” which scores range 

from 3 to 15, with 3 being the worst, the child began as a 5, 

but later regressed to a 3. He testified that 7 months’ postcrash, 

her eyes were open, but she was unaware of her environment 

and only “stare[s] off into space.” The doctor testified that the 

child’s prognosis was poor and that she would probably never 

fully recover, would need to be fed through a feeding tube, 

and would wear diapers for the rest of her life.

Law enforcement applied for and was issued a warrant to 

obtain a blood draw from Thompson for purposes of determining his blood alcohol content. The sample tested at .115 

gram of alcohol per 100 milliliters of blood. Thompson was 

charged by information with driving under the influence, fifth 

offense; child abuse; two counts of child abuse resulting in 

serious bodily injury; and leaving the scene of an injury accident. Counsel filed three pretrial motions which are relevant 

on appeal.

Motion to Recuse.

Following his arrest, Thompson was incarcerated while 

awaiting trial. He sought a furlough to visit his daughter in 

the hospital, as her doctors testified that she was not likely to 

survive. The State opposed the motion, noting both the serious nature of the child’s injuries—specifically, that she would 

not recover and that life support was the only thing keeping 

her alive—and the fact that those injuries were the result of 

Thompson’s actions. After noting in the record that “in view 

of the seriousness of the offense, that [Thompson] is charged 
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Cite as 301 Neb. 472

with a Class IIA Felony, ‘Which may, from what the prosecutor 

tells me, change were this person to expire,’” the district court 

denied the motion.

Thompson subsequently filed a motion to recuse, basing 

the motion on the district court’s statement that it was aware 

that were the child to die, the State would amend the charges 

against Thompson. Thompson’s counsel indicated that she, 

counsel, was not present for any such communication with the 

State and that the court could have discovered that intention 

only as a result of an ex parte communication with the State. 

At a hearing on the motion, the State offered into evidence an 

affidavit from the deputy county attorney on the case, averring 

that no communication on the matter alleged was had between 

the State and the district court.

Following the hearing, the district court denied the motion 

to recuse, noting that even if the evidence was clear that such 

a communication had taken place (and, the court implied, 

such was not clear), that communication would not draw into 

the question the court’s impartiality because of the facts of 

this particular case: namely, that the accident was alleged 

to have been caused by Thompson and that it was presumed 

that had the child died, the State would amend the charges 

accordingly.

Motion to Suppress and 

Franks Motion.

Thompson also filed a motion to suppress on March 

23, 2017, and a motion seeking a hearing under Franks v. 

Delaware on April 13; both seeking to suppress the blood 

draw. The bases of the motion to suppress was Thompson’s 

assertion that the affidavit accompanying the request for 

the warrant did not contain sufficient information to establish probable cause and that it was so lacking in indicia of 

probable cause as to make the good faith exception inapplicable. The basis of the Franks motion was that the affidavit 

accompanying the request for a search warrant included false 

statements made knowingly or intentionally or with reckless 
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STATE v. THOMPSON

Cite as 301 Neb. 472

disregard for the truth. A hearing was held on both motions. 

On May 11, the district court denied both motions.

Trial.

A 7-day jury trial was held in May 2017. At trial, the 

State introduced evidence that Thompson had run a red light, 

causing the accident. The State also introduced evidence that 

Thompson admitted to drinking and offered further evidence 

indicating that after the accident, Thompson drove his car 

from the scene to a park. Following the trial, the jury found 

Thompson guilty on all counts. Thompson appeals.

ASSIGNMENTS OF ERROR

Thompson assigns that the district court erred in denying 

his motions to (1) recuse, (2) suppress blood test results, and 

(3) exclude blood test results under Franks.

STANDARD OF REVIEW

[1] A recusal motion is initially addressed to the discretion 

of the judge to whom the motion is directed.2

[2] In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of the Fourth Amendment, 

an appellate court applies a two-part standard of review. 

Regarding historical facts, an appellate court reviews the trial 

court’s findings for clear error, but whether those facts trigger or violate Fourth Amendment protection is a question of 

law that an appellate court reviews independently of the trial 

court’s determination.3

[3] Plain error may be found on appeal when an error unasserted or uncomplained of at trial, but plainly evident from the 

record, prejudicially affects a litigant’s substantial right and, if 

uncorrected, would result in damage to the integrity, reputation, and fairness of the judicial process.4

2 State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).

3 State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018).

4 State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
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STATE v. THOMPSON

Cite as 301 Neb. 472

ANALYSIS

Motion to Recuse.

In his first assignment of error, Thompson contends that the 

district court erred in denying his motion seeking the recusal 

of the district court as a result of an ex parte communication 

with the prosecution.

In this case, the district court concluded that it need not 

recuse itself, because Thompson could not show prejudice even 

if he could show that the alleged communication occurred. 

We agree that this was not the correct framework to analyze 

Thompson’s claim.

[4,5] Thompson claimed that the district court and counsel for the State engaged in an ex parte communication. An 

ex parte communication occurs when a judge communicates 

with any person concerning a pending or impending proceeding without notice to an adverse party.5

 A judge who initiates 

or invites and receives an ex parte communication concerning a pending or impending proceeding must recuse himself or herself from the proceedings when a litigant requests 

such recusal.6

[6] In addition to recusal based upon an ex parte communication, a judge should also recuse himself or herself when 

a litigant demonstrates that a reasonable person who knew the 

circumstances of the case would question the judge’s impartiality under an objective standard of reasonableness, even 

though no actual bias or prejudice was shown.7

Because Thompson alleged an ex parte communication and 

not bias or prejudice, the district court erred insofar as it found 

Thompson could not show that the court was prejudiced. But 

because Thompson failed to meet his burden to show that there 

was an ex parte communication, there was still no error in the 

district court’s decision to deny the motion to recuse.

5 State v. Thomas, supra note 2.

6 Id.

7 Id.
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STATE v. THOMPSON

Cite as 301 Neb. 472

The district court’s statement that were the child to die, it 

“presumed that the State would amend the charges . . . accordingly,” was the primary basis of Thompson’s assertion of an 

ex parte communication. But the prosecutor offered an affidavit stating that no ex parte communication occurred, and the 

district court made no such finding either. While its finding 

could have been more clear, implicit in the court’s order was 

that it only “presumed” that the child’s death would result in 

an amendment of the charges. There is no merit to Thompson’s 

first assignment of error.

Suppression of Blood Test Results.

In his second assignment of error, Thompson contends that 

the affidavit supporting the issuance of the search warrant 

allowing the blood draw did not establish probable cause. And 

in his third and final assignment of error, Thompson assigns 

that the district court erred in denying his motion to suppress 

the blood draw based upon Franks v. Delaware.

8

We need not address the questions raised about the suppression of the blood draw under either the Fourth Amendment or 

Franks, because we conclude that any admission of the blood 

draw results was harmless error.

[7,8] 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.9 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.10

[9,10] 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.11 In other words, harmless error review 

8 Franks v. Delaware, supra note 1.

9 State v. Kidder, 299 Neb. 232, 908 N.W.2d 1 (2018).

10 Id.

11 Id.
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STATE v. THOMPSON

Cite as 301 Neb. 472

looks to the basis on which the jury actually rested its verdict.12

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.13

In this case, there is a significant amount of evidence that 

Thompson was under the influence. He fled from the scene 

of the collision and stopped at a park, where an officer witnessed him discarding both empty and full bottles of alcohol 

and beer as his children sat injured in the back seat of his 

vehicle. In addition, open beer cans and a bottle of whiskey 

were found in that vehicle. Thompson admitted that he had 

consumed a beer and two wine coolers about 2 hours before 

the collision.

Also in Thompson’s vehicle was a bottle containing 12 

lorazepam pills. The label on the bottle indicated the prescription had been filled 6 days earlier and directed Thompson to 

take just one pill every 8 hours as needed. If taken as prescribed, there should have been approximately 42 pills left in 

the bottle. Thompson told officers at the time he was being 

interviewed—several hours after the collision—that he was 

still feeling the effects of the medications he had taken, which 

included lorazepam and Lyrica.

In addition, there was testimony that Thompson smelled of 

alcohol, had bloodshot eyes, had slurred speech, and repeatedly said that he was not “‘fucked up’” at a time when officers were trying only to obtain biographical information for 

him and his children. Moreover, Thompson gave inconsistent 

explanations about where he was going at the time of the collision. Thompson also gave inconsistent details about his home 

address, variously indicating that he lived in Nebraska City, 

Nebraska, and in Fort Calhoun, Nebraska, when in fact his 

registered address was in Omaha.

12 Id.

13 Id.
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STATE v. THOMPSON

Cite as 301 Neb. 472

Officers also testified that Thompson showed impairment 

during field sobriety tests. Though these tests might not have 

been performed correctly by the officers, there was testimony 

that the tests were still valid to identify signs of impairment. 

Finally, officers testified that based upon their observations 

over a 4-hour period, Thompson was intoxicated.

There was an abundance of evidence offered that Thompson 

was intoxicated. On these facts, any error in the admission 

of the blood test results was harmless. There is no merit to 

Thompson’s second or third assignments of error.

Plain Error in Sentencing.

The State argued in its brief that the district court erred 

in sentencing Thompson to license revocations for his convictions for counts 2, 3, and 5. At oral arguments, the State 

further noted that it believed the district court erred in failing 

to sentence Thompson to indeterminate sentences on counts 2 

and 3.

Thompson was sentenced for his convictions to 12 to 15 

years’ imprisonment on count 1, driving under the influence, 

a Class IIA felony; 3 years’ imprisonment on count 2, child 

abuse resulting in serious bodily injury, a Class II felony; 

3 years’ imprisonment on count 3, also the Class II felony 

of child abuse resulting in serious bodily injury; 1 year’s 

imprisonment on count 4, child abuse, a Class IIIA felony; 

and 3 years’ imprisonment on count 5, leaving the scene of 

a personal injury accident resulting in serious bodily injury, 

a Class III felony. The district court additionally revoked 

Thompson’s operator’s license in connection with his convictions on counts 1, 2, 3, and 5.

We turn first to the argument made by the State in its brief, 

that the operator’s license revocations for the convictions on 

counts 2 and 3 were plain error. We agree.

Neb. Rev. Stat. § 60-6,197.03(9) (Cum. Supp. 2016) authorizes a 15-year license revocation for driving under the influence, fifth offense, and Neb. Rev. Stat. § 60-698(2) (Cum. 

Supp. 2016) authorizes the same for leaving the scene of a 
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personal injury accident. But there is no authorization in state 

law for such a revocation for child abuse convictions.14 We 

therefore agree with the State that these revocations constituted plain error.

We turn next to the State’s assertion at oral argument that 

the determinate sentences imposed for counts 2 through 5 

were not authorized. The basis for this contention is Neb. Rev. 

Stat. §§ 29-2204 (Supp. 2017) and 29-2204.02 (Reissue 2016). 

Section 29-2204 provides in relevant part:

(1) Except when a term of life imprisonment is required 

by law, in imposing a sentence upon an offender for any 

class of felony other than a Class III, IIIA, or IV felony, 

the court shall fix the minimum and the maximum terms 

of the sentence to be served within the limits provided 

by law. The maximum term shall not be greater than the 

maximum limit provided by law, and:

(a) The minimum term fixed by the court shall be any 

term of years less than the maximum term imposed by the 

court; or

(b) The minimum term shall be the minimum limit 

provided by law.

And § 29-2204.02(4) provides:

For any sentence of imprisonment for a Class III, IIIA, 

or IV felony for an offense committed on or after August 

30, 2015, imposed consecutively or concurrently with 

(a) a sentence for a Class III, IIIA, or IV felony for an 

offense committed prior to August 30, 2015, or (b) a sentence of imprisonment for a Class I, IA, IB, IC, ID, II, or 

IIA felony, the court shall impose an indeterminate sentence within the applicable range in section 28-105 that 

does not include a period of post-release supervision, in 

accordance with the process set forth in section 29-2204.

We recently explained the distinction between determinate 

and indeterminate sentences:

14 See Neb. Rev. Stat. § 28-707 (Reissue 2016).
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A determinate sentence is imposed when the defendant 

is sentenced to a single term of years, such as a sentence 

of 2 years’ imprisonment. . . . In contrast, when imposing an indeterminate sentence, a sentencing court ordinarily articulates either a minimum term and maximum 

term or a range of time for which a defendant is to be 

incarcerated. In Nebraska, the fact that the minimum 

term and maximum term of a sentence are the same 

does not affect the sentence’s status as an indeterminate 

sentence.15

When read together and applied to these facts, §§ 29-2204(1) 

and 29-2204.02(4) require Thompson to be sentenced to indeterminate sentences on all five counts. Under § 29-2204, a 

defendant convicted of a Class IIA felony, as Thompson was 

for driving under the influence, fifth offense, must be sentenced to an indeterminate sentence. Thompson was sentenced 

to 12 to 15 years’ imprisonment for driving under the influence, and thus, this sentence was correct.

But the sentences imposed for Thompson’s convictions on 

counts 2 and 3, both counts of child abuse resulting in serious bodily injury, a Class II felony, were not indeterminate as 

required under § 29-2204.02; rather, Thompson was sentenced 

to a determinate sentence of 3 years’ imprisonment for each 

count. These sentences were plain error.

Moreover, § 29-2204.02(4) provides that for “any sentence of imprisonment for a Class III, IIIA, or IV felony . . . 

imposed consecutively or concurrently with . . . a sentence of 

imprisonment for a Class I, IA, IB, IC, ID, II, or IIA felony, 

the court shall impose an indeterminate sentence within the 

applicable range.” In count 4, Thompson was convicted of 

child abuse, a Class IIIA felony, and was sentenced to a determinate sentence of 1 year’s imprisonment. In count 5, he was 

convicted of leaving the scene of a personal injury accident, a 

15 State v. Artis, 296 Neb. 172, 179, 893 N.W.2d 421, 427-28 (2017), 

modified on denial of rehearing 296 Neb. 606, 894 N.W.2d 349.
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Class III felony, and was sentenced to a determinate sentence 

of 3 years’ imprisonment. But because these sentences were 

imposed consecutively with Thompson’s Class II and Class 

IIA felonies, these sentences should have also been indeterminate. We therefore find plain error in these sentences.

Given this plain error, we vacate Thompson’s sentences 

for his convictions on counts 2 through 5 in their entirety and 

remand those counts for resentencing.

CONCLUSION

We vacate the sentences imposed for Thompson’s convictions on counts 2 through 5 in their entirety. We otherwise 

affirm the judgments and convictions of the district court and 

remand this cause to the district court for resentencing on 

counts 2 through 5.

 Affirmed in part, and in part v

and remanded for resent