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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. MONTOYA

Cite as 29 Neb. App. 563

State of Nebraska, appellee, v. Lorenzo 

R. Montoya, appellant.

___ N.W.2d ___

Filed March 9, 2021. No. A-20-029.

1. 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 

protections is a question of law that an appellate court reviews independently of the trial court’s determination.

2. Motions to Suppress: Trial: Pretrial Procedure: Appeal and Error.

When a motion to suppress is denied pretrial and again during trial on 

renewed objection, an appellate court considers all the evidence, both 

from the trial and from the hearings on the motion to suppress.

3. Trial: Investigative Stops: Warrantless Searches: Appeal and Error.

The ultimate determinations of reasonable suspicion to conduct an 

investigatory stop and probable cause to perform a warrantless search 

are reviewed de novo, and findings of fact are reviewed for clear error, 

giving due weight to the inferences drawn from those facts by the 

trial judge.

4. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard is the 

same: An appellate court does not resolve conflicts in the evidence, pass 

on the credibility of witnesses, or reweigh the evidence; such matters 

are for the finder of fact. The relevant question for an appellate court 

is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Nebraska Supreme Court Online Library

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

03/16/2021 08:07 AM CDT
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STATE v. MONTOYA

Cite as 29 Neb. App. 563

5. 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.

6. Sentences: Probation and Parole: Appeal and Error. It is within the 

discretion of the trial court whether to impose probation or incarceration, and an appellate court will uphold the court’s decision denying probation absent an abuse of discretion.

7. Constitutional Law: Search and Seizure: Search Warrants: Probable 

Cause. The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures. The Nebraska Constitution provides a 

similar protection. The execution of a search warrant without probable 

cause is unreasonable and violates constitutional guarantees.

8. Constitutional Law: Warrantless Searches. An exception to the 

Fourth Amendment’s warrant requirement is the community care

taking exception.

9. Constitutional Law: Police Officers and Sheriffs: Motor Vehicles.

The community caretaking exception to the Fourth Amendment provides 

that local police officers, unlike federal officers, frequently investigate vehicle accidents in which there is no claim of criminal liability 

and engage in what, for want of a better term, may be described as 

community caretaking functions, totally divorced from the detection, 

investigation, or acquisition of evidence relating to the violation of a 

criminal statute.

10. Constitutional Law: Police Officers and Sheriffs: Investigative 

Stops: Search and Seizure. In order to determine whether the community caretaking exception to the Fourth Amendment applies, the court 

should assess the totality of the circumstances surrounding the stop, 

including all of the objective observations and considerations, as well 

as the suspicion drawn by a trained and experienced police officer by 

inference and deduction. If, based on the totality of the circumstances, 

the seizing officer had a reasonable basis to believe his assistance was 

necessary, the stop is not unconstitutional.

11. Constitutional Law: Search and Seizure. A search or seizure under 

the community caretaking exception to the Fourth Amendment, like any 

other search or seizure, is subject to the standard test of reasonableness. 

It must be justified at its inception, based on specific articulable facts 

which reasonably warrant the intrusion into the individual’s liberty, and 

it must be reasonably related in scope to the circumstances which justified the interference in the first place.

12. Criminal Law: Police Officers and Sheriffs: Drunk Driving: 

Controlled Substances: Blood, Breath, and Urine Tests. The material elements of the crime of refusal are (1) the defendant was arrested 

for an offense arising out of acts alleged to have been committed while 
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STATE v. MONTOYA

Cite as 29 Neb. App. 563

he or she was driving or in actual physical control of a motor vehicle 

while under the influence of alcoholic liquor or drugs; (2) a peace officer had reasonable grounds to believe the defendant was driving or in 

actual physical control of a motor vehicle in this state while under the 

influence of alcohol or drugs; (3) the peace officer required the defend

ant to submit to a chemical test of his or her blood, breath, or urine to 

determine the concentration of alcohol or the presence of drugs; (4) the 

defendant was advised that his or her failure to submit to a chemical test 

of his or her blood, breath, or urine is a separate offense for which he 

or she could be charged; and (5) the defendant refused to submit to a 

chemical test as required by the peace officer.

13. Sentences. When imposing a sentence, the sentencing court is to consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or 

record of law-abiding conduct, and (6) motivation for the offense, as 

well as (7) the nature of the offense, and (8) the amount of violence 

involved in the commission of the crime. The sentencing court is not 

limited to any mathematically applied set of factors.

14. ____. 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: Robert 

R. Otte, Judge. Affirmed.

Joseph D. Nigro, Lancaster County Public Defender, and 

Matthew Meyerle for appellant.

Douglas J. Peterson, Attorney General, and Matthew Lewis 

for appellee.

Bishop, Arterburn, and Welch, Judges.

Welch, Judge.

INTRODUCTION

Lorenzo R. Montoya appeals his jury conviction of refusal 

to submit to a chemical test with two prior convictions, a Class 

IIIA felony, and the conviction by the district court of refusal 

to submit to a preliminary breath test (PBT), a Class V mis

demeanor. For the reasons stated herein, we affirm.
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STATE v. MONTOYA

Cite as 29 Neb. App. 563

STATEMENT OF FACTS

In August 2018, two Lancaster County deputy sheriffs, 

Daniel Sarnes and Samuel Bachman, received a dispatch 

around 2:37 a.m. regarding a male slumped over the steering 

wheel of a vehicle. Deputy Sarnes was the first law enforcement officer at the scene and was informed by medical personnel that they believed the driver, identified as Montoya, was 

intoxicated. Deputy Sarnes, who was concerned Montoya was 

not fit to drive, initiated contact with Montoya, who was still 

in his vehicle. Deputy Sarnes asked Montoya for his driver’s 

license, his vehicle registration, and his proof of insurance 

documents; Montoya did not have his driver’s license in his 

possession and had difficulty retrieving his other documents. 

A short time later, Montoya refused Deputy Bachman’s request

that Montoya take a PBT. Montoya was arrested for driving 

under the influence of alcohol and was later charged with 

count I, refusal to submit to a chemical test with two prior 

convictions; count II, third-offense driving under the influence; 

and count III, refusal to submit to a PBT.

Prior to trial, Montoya filed a motion to suppress evidence 

related to the initial stop of his vehicle and the evidence seized 

as a result of the stop. The aforementioned facts were adduced 

at this hearing along with testimony from Deputies Sarnes 

and Bachman.

Deputy Sarnes testified that the nature of the dispatch call 

concerned a vehicle parked on the road with a male slumped 

over the steering wheel, with no indication of his consciousness level. When Deputy Sarnes arrived at the scene, medical 

personnel, who interacted with Montoya, informed Deputy 

Sarnes that they believed Montoya was intoxicated. Because 

Deputy Sarnes was concerned that Montoya was unable to 

drive, he approached Montoya and asked for his documents, 

which Montoya produced, after some difficulty, except for 

his driver’s license. Deputy Sarnes observed that Montoya’s 

vehicle was parked on the road within 2 feet of the grassy edge 

of the gravel road.
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STATE v. MONTOYA

Cite as 29 Neb. App. 563

Deputy Bachman recalled that around 2:37 a.m., a dispatch 

call went out, and that the nature of the call was that a man was 

slumped over the steering wheel of the vehicle. When Deputy 

Bachman arrived on the scene at approximately 2:52 a.m., 

he saw Deputy Sarnes interacting with Montoya, so Deputy 

Bachman approached the vehicle from the passenger side. He 

observed one unopened “bottle of Fireball . . . the size of a 

shooter” in the center console of the vehicle. Deputy Bachman 

also noticed that Montoya had bloodshot, watery eyes, and he 

smelled alcohol emanating from Montoya. After making these 

observations, Deputy Bachman asked Montoya to complete the 

horizontal gaze nystagmus test, the nine-step walk-and-turn 

test, and the one-legged stand test. Deputy Bachman testified 

that Montoya exhibited a level of impairment on all the tests, 

which suggested he was under the influence of alcohol. Based 

on Montoya’s field sobriety test results, Deputy Bachman 

requested that Montoya take a PBT, but Montoya refused. 

Deputy Bachman testified that he believed Montoya was unable 

to operate a motor vehicle because he was under the influence 

of alcohol as demonstrated by his appearance and field sobriety 

test results. Deputy Bachman also testified Montoya’s vehicle 

was stopped on the road but was not pulled off to the side of 

the road.

After the hearing, the court concluded that notwithstanding 

Montoya’s argument that the deputies did not have reasonable 

cause or articulable suspicion to stop or detain him, they did 

have a duty and a right to investigate someone stopped on 

the roadside in a manner similar to Montoya and that after 

contacting Montoya, their determination he had been drinking 

led to their investigation of him. In furtherance of this finding, the district court noted it had watched the video showing 

the arrest of Montoya by the deputies and noted the location where Montoya’s vehicle was parked on the road. The 

court ultimately denied Montoya’s motion to suppress in its 

entirety.
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STATE v. MONTOYA

Cite as 29 Neb. App. 563

Motions in Limine/Demand 

for Jury Trial

Prior to trial, Montoya filed motions in limine to limit the 

testimony of Deputies Sarnes and Bachman regarding the content of dispatch’s call about Montoya’s being slumped over his 

steering wheel and portions of the video showing law enforcement’s discussion thereof with Montoya. Montoya argued this 

evidence should be limited because neither deputy had personal knowledge that Montoya was slumped over his steering 

wheel and these statements constituted hearsay. The district 

court denied the motions, explaining the dispatch call provided 

information which the State could use to build its case.

Montoya filed a demand for a jury trial on count III, refusal 

to submit to a PBT, which motion was denied by the district 

court. The court explained that because there is no possibility 

of a jail sentence on count III, the count should be treated like 

an infraction, and that Montoya was not entitled to a jury trial 

on that count.

Trial

In October 2019, a jury trial was held regarding count I, 

refusal to submit to a chemical test with two prior convictions, and count II, third-offense driving under the influence. 

Testimony was elicited from Deputies Sarnes and Bachman.

Deputy Sarnes’ testimony was consistent with his testimony provided during the suppression hearing and set forth 

above. He further explained that Montoya wore wristbands, the 

kind commonly given out to bar patrons who are at least 21 

years old; that Montoya told law enforcement he left Lincoln, 

Nebraska, to return to his home in Crete, Nebraska, and 

decided to take the gravel road to “see the surroundings”; and 

that Montoya rejected the PBT by saying no and waving his 

hand at the PBT device. The State also offered the video of the 

stop of Montoya’s vehicle, which was received by the district 

court over Montoya’s objection in the form of a renewal of his 

motion in limine.
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STATE v. MONTOYA

Cite as 29 Neb. App. 563

Deputy Bachman also testified in a manner consistent with 

his testimony during the suppression hearing. When Deputy 

Bachman testified regarding the dispatch call, Montoya interposed hearsay and confrontation objections, thereby renewing 

his motion in limine, which the district court ultimately overruled. Deputy Bachman testified regarding the events leading 

to Montoya’s arrest and explained that after Montoya refused 

the PBT, law enforcement arrested him on suspicion of driving 

under the influence.

Deputy Bachman explained that following Montoya’s arrest, 

he asked Montoya to submit to a “DataMaster” breath test and 

explained that refusing this test would constitute a separate 

charge. Subsequent to this explanation, Montoya refused to 

submit to a breath test.

Verdicts and Sentencing

The jury found Montoya guilty of count I, refusal to submit 

to a chemical test, but not guilty of count II, driving under the 

influence. The court found Montoya guilty of count III, refusal 

to submit to a PBT. At an enhancement hearing, the court 

determined count I was Montoya’s third offense and sentenced 

Montoya to 30 months’ imprisonment followed by 12 months 

of postrelease supervision and revoked Montoya’s operator’s 

license for 15 years. The court ordered Montoya to pay a $100 

fine for his conviction on count III.

ASSIGNMENTS OF ERROR

Montoya’s assignments of error, consolidated and restated, 

are that (1) the district court erred in denying his motion to 

suppress, (2) the district court erred in denying his demand 

for a jury trial on the misdemeanor charge, (3) the district 

court erred in denying his motion in limine and permitting 

the testimony at trial, (4) the evidence was insufficient to support his convictions, and (5) the sentence imposed on count I 

was excessive.
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Nebraska Court of Appeals Advance Sheets

29 Nebraska Appellate Reports

STATE v. MONTOYA

Cite as 29 Neb. App. 563

STANDARD OF REVIEW

[1] 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 protections is a question of 

law that an appellate court reviews independently of the trial 

court’s determination. State v. Shiffermiller, 302 Neb. 245, 922 

N.W.2d 763 (2019).

[2] When a motion to suppress is denied pretrial and again 

during trial on renewed objection, an appellate court considers 

all the evidence, both from the trial and from the hearings on 

the motion to suppress. Id.

[3] The ultimate determinations of reasonable suspicion to 

conduct an investigatory stop and probable cause to perform a 

warrantless search are reviewed de novo, and findings of fact 

are reviewed for clear error, giving due weight to the inferences drawn from those facts by the trial judge. Id.

[4] 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). The relevant question for an appellate 

court is whether, after viewing the evidence in the light most 

favorable to the prosecution, any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt. Id.

[5,6] An appellate court will not disturb a sentence imposed 

within the statutory limits absent an abuse of discretion by the 

trial court. State v. Iddings, 304 Neb. 759, 936 N.W.2d 747 

(2020). It is within the discretion of the trial court whether 

to impose probation or incarceration, and an appellate court 

will uphold the court’s decision denying probation absent an 
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STATE v. MONTOYA

Cite as 29 Neb. App. 563

abuse of discretion. State v. Wills, 285 Neb. 260, 826 N.W.2d 

581 (2013).

ANALYSIS

Denial of Motion to Suppress

Montoya first contends that the district court erred in denying his motion to suppress his detention, arrest, and the evidence seized therefrom because the deputies lacked reasonable 

suspicion or probable cause to stop and ultimately arrest him.

[7] The Fourth Amendment to the U.S. Constitution prohibits 

unreasonable searches and seizures. See State v. Hidalgo, 296 

Neb. 912, 896 N.W.2d 148 (2017). The Nebraska Constitution 

provides a similar protection. State v. Hidalgo, supra. The 

execution of a search warrant without probable cause is unreasonable and violates constitutional guarantees. Id.

[8-11] An exception to the Fourth Amendment’s warrant 

requirement is the community caretaking exception. State v. 

Shiffermiller, supra. The community caretaking exception provides that

“‘[l]ocal police officers, unlike federal officers, frequently 

investigate vehicle accidents in which there is no claim of 

criminal liability and engage in what, for want of a better 

term, may be described as community caretaking functions, totally divorced from the detection, investigation, 

or acquisition of evidence relating to the violation of a 

criminal statute.’”

State v. Shiffermiller, 302 Neb. 245, 258, 922 N.W.2d 763, 

775 (2019). The Nebraska Supreme Court has outlined how to 

apply the community caretaking exception, stating:

[T]he court should assess the totality of the circumstances surrounding the stop, including all of the objective observations and considerations, as well as the suspicion drawn by a trained and experienced police officer 

by inference and deduction. If, based on the totality of 

the circumstances, the seizing officer had a reasonable 

basis to believe his assistance was necessary, the stop is 
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Cite as 29 Neb. App. 563

not unconstitutional. Thus, a search or seizure under the 

community caretaking exception, like any other search or 

seizure, is subject to the standard test of reasonableness. 

It must be justified at its inception, based on specific 

articulable facts which reasonably warrant the intrusion 

into the individual’s liberty, and it must be reasonably 

related in scope to the circumstances which justified the 

interference in the first place.

Id. at 259, 922 N.W.2d at 776.

The district court overruled Montoya’s motion to suppress, 

finding that the community caretaking exception justified the 

deputies’ stop and subsequent investigation of Montoya. While 

recognizing the community caretaking exception can provide 

the basis to stop and investigate a motorist without a warrant, 

Montoya argues the exception did not apply here

because no evidence was adduced to show the reliability of the initial reported information. Although officers 

were dispatched to a report that a male in the vehicle 

was slumped over, Deputy Sarnes testified that he did 

not take the names of any of the medical personnel at the 

scene, did not speak with the initial reporting party, and 

that at the time he arrived on the scene that [Montoya] 

was awake.

Brief for appellant at 18. Montoya’s argument is misplaced.

Law enforcement has the right to stop and investigate a 

motorist under the community caretaking exception when the 

specific articulable facts warrant the intrusion of an individual’s liberty and then the intrusion reasonably relates to the 

scope of circumstances which justified the interference. Here, 

a citizen informant’s tip, followed by the deputies’ discovery 

of the vehicle positioned as described by the informant with 

medical personnel on the scene, justified responding to the 

vehicle to determine whether the motorist was in need of care. 

Stated differently, the report made through dispatch, taken 

together with what the deputies found at the scene, presented 

sufficient indicia of reliability to provide the deputies, based 
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Cite as 29 Neb. App. 563

upon the totality of the circumstances, with a reasonable basis 

to believe their assistance was necessary and warranted the 

initial interference. Contrary to Montoya’s assertion, the deputies were not required to first interrogate the citizen informant 

before rendering potential assistance to the motorist whom the 

informant advised may be in need of assistance. Accordingly, 

the stop of Montoya was not unconstitutional and the district 

court did not err in denying Montoya’s motion to suppress. 

This assigned error fails.

Demand for Jury Trial

Second, Montoya contends the district court erred in denying his demand for a jury trial on count III, refusal to submit to 

a PBT. See Neb. Rev. Stat. § 60-6,197.04 (Reissue 2010). We 

note that the State concedes this argument in its brief.

On October 18, 2019, the State filed a motion to amend the 

information, and later that day, Montoya filed a demand for a 

jury trial under Neb. Rev. Stat. § 25-2705 (Reissue 2016). The 

State filed the amended information on October 21, including 

the count of refusal to submit to a PBT under § 60-6,197.04. 

Montoya argues he had a right to file a demand for a jury trial 

pursuant to § 25-2705. For clarity, Montoya is not arguing that 

he had a constitutional right to a jury trial. Instead, he argues 

that § 25-2705 provides him with a statutory right to a jury trial 

for the allegations in count III and that the district court erred 

in refusing to grant him a jury trial on that charge.

Montoya argues that although § 25-2705 applies to county 

court, the statutory language in § 25-2705(2) suggests it applies 

to charges of this nature in district court as well.

Section 25-2705 provides as follows:

(1) Either party to any case in county court, except 

criminal cases arising under city or village ordinances, 

traffic infractions, other infractions, and any matter arising under the Nebraska Probate Code or the Nebraska 

Uniform Trust Code, may demand a trial by jury. In civil 

cases, the demand shall be in writing and shall be filed 

with the court:
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STATE v. MONTOYA

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(a) By a plaintiff on the date the complaint is filed with 

the court;

(b) By a defendant on or before the date the answer is 

filed with the court;

(c) By a counterclaimant on the date the counterclaim 

is filed with the court;

(d) By a counterclaim defendant on or before the date 

the reply to the counterclaim is filed with the court;

(e) By a third-party plaintiff on the date the third-party 

complaint is filed with the court;

(f) By a third-party defendant on or before the date 

the answer to the third-party complaint is filed with 

the court;

(g) By a cross-claimant on the date the cross-claim is 

filed with the court; and

(h) By a cross-claim defendant on or before the date 

the answer to the cross-claim is filed with the court.

(2) All provisions of law relating to juries in the district 

courts shall apply to juries in the county courts, and the 

district court jury list shall be used, except that juries in 

the county courts shall consist of six persons.

Contrary to Montoya’s assertion, § 25-2705(2) provides that 

laws relating to juries in district courts apply to juries in county 

courts, not that the provisions of § 25-2705 should apply to district courts. The clear and unambiguous language of § 25-2705 

provides that if a party is entitled to a jury trial in county court 

under § 25-2705, then the statutes that govern juries in district 

court shall apply to county court juries as well. This does not 

mean that a party charged in district court is likewise afforded 

the rights set forth in § 25-2705.

Montoya next argues that because under Neb. Rev. Stat. 

§ 24-517(6) (Cum. Supp. 2020), the county court has concurrent original jurisdiction with the district court in any criminal matter classified as a misdemeanor, that provision should 

somehow bootstrap the application of this county court right to 

district court. Section 24-517(6) provides: “Concurrent original 
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jurisdiction with the district court in any criminal matter classified as a misdemeanor or for any infraction. The district 

court shall have concurrent original jurisdiction in any criminal 

matter classified as a misdemeanor that arises from the same 

incident as a charged felony.” Although § 24-517(6) did provide the district court with jurisdiction over this criminal matter, we fail to see how that likewise incorporates the right to a 

jury trial that extends only by statute to county court, and our 

research has not revealed any such application. Because the 

clear language of § 25-2705 would have provided Montoya a 

right to a jury trial for a charge of this nature only in county 

court and this matter was charged in district court, this assignment of error fails.

Motion in Limine

Third, Montoya argues the court erred in allowing Deputies 

Sarnes and Bachman to testify that Montoya was slumped over 

the steering wheel of his vehicle, because they did not show 

they had personal knowledge of this fact. Montoya explains 

that under Neb. Rev. Stat. § 27-602 (Reissue 2016), a witness may testify only to matters of which he or she has personal knowledge.

Before discussing the issue of whether the deputies had personal knowledge to testify that Montoya was slumped over the 

wheel of the vehicle, we note that this issue was first addressed 

in Montoya’s motions in limine. The district court denied his 

motions in limine regarding evidence adduced from Deputies 

Sarnes and Bachman, including the contents of the initial dispatch call that the driver of the vehicle was “slumped over at 

the wheel.” At trial, Montoya properly renewed his motions, 

which the district court denied.

Montoya argues that the district court erred in permitting 

Deputies Sarnes and Bachman to testify that Montoya was 

slumped over the steering wheel, “because no evidence was 

presented and the State heard from no witnesses who corroborated the information.” Brief for appellant at 21. The basis of 

Montoya’s argument is that the deputies’ testimony violated 
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§ 27-602, which provides: “A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Evidence to 

prove personal knowledge may, but need not, consist of the 

testimony of the witness himself.”

Although § 27-602 does require a witness to have personal 

knowledge of a matter to which he or she testified, it does 

not apply in the context posed by Montoya here. Contrary to 

Montoya’s assertion, neither deputy testified that Montoya 

was slumped over the steering wheel. During Deputy Sarnes’ 

testimony, the State asked, “What was the nature of this dispatch call?” to which he replied, “I was dispatched to a red 

SUV parked on the side of the road with one male slumped 

over.” Later, during redirect, Deputy Sarnes agreed that he was 

dispatched to check on a male slumped over a steering wheel. 

Similarly, during Deputy Bachman’s testimony, the State 

asked, “What was the nature of the dispatch that you received 

at 2:37 a.m. on August 26th of 2018?” to which he replied, “It 

was for a male parked on the roadway that was slumped over 

the steering wheel of the vehicle.” Both deputies’ testimony 

clearly states that the deputies were testifying to the nature of 

the dispatch call. Thus, both deputies demonstrated they had 

personal knowledge of the nature of dispatch’s call, and this 

testimony complies with the requirement in § 27-602. And, as 

we noted in the previous section of this opinion, that testimony 

was relevant, as it provided notice to the deputies, which triggered the community caretaking response. Accordingly, this 

error fails.

Sufficiency of Evidence

[12] Montoya next contends that there was insufficient 

evidence to sustain his convictions for refusal to submit to a 

chemical test under Neb. Rev. Stat. § 60-6,197 (Cum. Supp. 

2020) and refusal to submit to a PBT under § 60-6,197.04.

The elements of § 60-6,197 are

(1) the defendant was arrested for an offense arising out 

of acts alleged to have been committed while he or she 
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was driving or in actual physical control of a motor vehicle while under the influence of alcoholic liquor or drugs; 

(2) a peace officer had reasonable grounds to believe the 

defendant was driving or in actual physical control of 

a motor vehicle in this state while under the influence 

of alcohol or drugs; (3) the peace officer required the 

defendant to submit to a chemical test of his or her blood, 

breath, or urine to determine the concentration of alcohol 

or the presence of drugs; (4) the defendant was advised 

that his or her failure to submit to a chemical test of his 

or her blood, breath, or urine is a separate offense for 

which he or she could be charged; and (5) the defendant 

refused to submit to a chemical test as required by the 

peace officer.

State v. Rothenberger, 294 Neb. 810, 828, 885 N.W.2d 23, 

36 (2016). Refusing to submit to a PBT is governed by 

§ 60-6,197.04, which provides that

any person who operates or has in his or her actual 

physical control a motor vehicle in this state [may be 

required] to submit to a [PBT] for alcohol concentration if the officer has reasonable grounds to believe that 

such person has alcohol in his or her body, has committed a moving traffic violation, or has been involved in 

a traffic accident. Any person who refuses to submit to 

such [PBT] or whose [PBT] results indicate an alcohol 

concentration in violation of section 60-6,196 shall be 

placed under arrest.

Of the five elements needed to establish the crime of refusal 

to submit to a chemical test, Montoya contends the State 

failed to establish one of those elements, specifically that 

law enforcement officers had reasonable grounds to believe 

Montoya was driving or in actual physical control of a motor 

vehicle while under the influence of alcohol at the time of 

his arrest. Regarding his conviction for refusing to submit to 

a PBT, Montoya argues that there was insufficient evidence 

to establish he was operating or in the actual physical control 
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of the vehicle, and to establish the reasonableness of the deputies’ belief that he had been consuming alcohol.

It is well established that in reviewing a criminal conviction 

for a sufficiency of the evidence claim, whether the evidence 

is direct, circumstantial, or a combination thereof, the standard 

is the same: An appellate court does not resolve conflicts in the 

evidence, pass on the credibility of witnesses, or reweigh the 

evidence; such matters are for the finder of fact. The relevant 

question for an appellate court is whether, after viewing the 

evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt. State v. Stack, 307 Neb. 

773, 950 N.W.2d 611 (2020); State v. Martinez, 306 Neb. 516, 

946 N.W.2d 445 (2020).

Montoya alleges that there was insufficient evidence to 

establish the element under § 60-6,197 that the deputies “had 

reasonable grounds to believe [Montoya] was driving or in 

actual physical control of a motor vehicle . . . while under the 

influence of alcohol,” see State v. Rothenberger, 294 Neb. at 

828, 885 N.W.2d at 36, and the element under § 60-6,197.04 

that Montoya was “operat[ing] or [had] in his . . . actual physical control a motor vehicle [and] the [deputies had] reasonable grounds to believe that [Montoya had] alcohol in his . . . 

body.” The deputies testified that Montoya informed them he 

was in his vehicle because he had been traveling from Lincoln 

to Crete; that they detected the odor of alcohol coming from 

Montoya; and that Montoya wore wristbands commonly given 

out to bar patrons, had an unopened alcohol container in 

the vehicle, and admitted to law enforcement he was found 

“passed out” behind the wheel of his vehicle. Montoya performed poorly on the field sobriety tests. Further, both deputies testified that Montoya was in his vehicle alone when they 

arrived on the scene. Deputy Bachman testified that when he 

arrived on the scene, he observed Deputy Sarnes speaking 

with a male inside the vehicle. Deputy Bachman approached 

the vehicle and observed an unopened “bottle of Fireball” in 
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STATE v. MONTOYA

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the middle console of the vehicle and also saw that Montoya’s 

eyes were bloodshot, and he testified that Montoya smelled 

of alcohol.

Based upon this evidence, there was sufficient evidence 

to support Montoya’s convictions for refusal to submit to a 

chemical test and refusal to submit to a PBT. Accordingly, this 

assigned error fails.

Excessive Sentence

Montoya’s last assigned error is that the district court erred 

in imposing an excessive sentence by not tailoring the sentence 

on count I to fit Montoya. He asserts that the sentence of 30 

months’ imprisonment is greater than what is necessary for 

the protection of the public, the gravity of the offense, and 

Montoya’s rehabilitative needs.

Montoya was convicted of a Class IIIA felony. He was sentenced to 30 months’ imprisonment with 6 days’ credit for time 

served and had his license revoked for 15 years. Montoya’s 

sentence is within the statutory sentencing range for Class IIIA 

felonies, which are punishable by 0 to 3 years’ imprisonment 

followed by 9 to 18 months’ postrelease supervision if imprisonment is imposed, a $10,000 fine, or both. See Neb. Rev. Stat. 

§ 28-105 (Reissue 2016).

[13,14] An appellate court will not disturb a sentence 

imposed within the statutory limits absent an abuse of discretion by the trial court. State v. Manjikian, 303 Neb. 100, 927 

N.W.2d 48 (2019). Regarding criminal sentences, the Nebraska 

Supreme Court has explained:

When imposing a sentence, the sentencing court is 

to consider the defendant’s (1) age, (2) mentality, (3) 

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

conduct, and (6) motivation for the offense, as well as 

(7) the nature of the offense, and (8) the amount of violence involved in the commission of the crime. However, 

the sentencing court is not limited to any mathematically applied set of factors. The appropriateness of a 
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STATE v. MONTOYA

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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.

Id. at 114-15, 927 N.W.2d at 60-61.

Montoya’s presentence investigation report shows he has 

a criminal record, which includes convictions including driving under suspension, third-offense driving under the influence, and multiple convictions for possession of a controlled 

substance.

During the sentencing hearing, the district court considered 

relevant factors in imposing Montoya’s sentence and was not 

limited to a mathematical set of factors. At the sentencing 

hearing, the district court noted it had reviewed Montoya’s 

presentence investigation report and considered the facts that 

many people are killed by drunk drivers each year and that he 

was convicted of refusing to take a chemical test with two prior 

convictions, which is a significant felony. Based on the factors 

considered by the court on the record before pronouncing the 

sentence, we cannot say the court abused its discretion in rendering the sentence here. This assignment fails.

CONCLUSION

For the reasons previously outlined, we affirm Montoya’s 

convictions and sentence.

Affirmed.