- 331 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

State of Nebraska, appellee, v. Thomas 

E. Johnson, Jr., appellant.

___ N.W.2d ___

Filed February 5, 2021. No. S-19-1226.

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

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

enforcement procured it by violating the safeguards established by the 

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

1602, 16 L. Ed. 2d 694 (1966), an appellate court applies a two-part 

standard of review. Regarding historical facts, an appellate court reviews 

the trial court’s findings for clear error. Whether those facts meet constitutional standards, however, is a question of law, which an appellate 

court reviews independently of the trial court’s determination.

2. Identification Procedures: Due Process: Appeal and Error. A district 

court’s conclusion whether an identification is consistent with due proc

ess is reviewed de novo, but the court’s findings of historical fact are 

reviewed for clear error.

3. Verdicts: Insanity: Appeal and Error. The verdict of the finder of fact 

on the issue of insanity will not be disturbed unless there is insufficient 

evidence to support such a finding.

4. Sentences: Appeal and Error. Absent an abuse of discretion by the trial 

court, an appellate court will not disturb a sentence imposed within the 

statutory limits.

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

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

and evidence.

6. Constitutional Law: Miranda Rights: Self-Incrimination. Miranda v. 

Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), prohibits the use of statements derived during custodial interrogation unless 

Nebraska Supreme Court Online Library

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

04/09/2021 08:09 AM CDT
- 332 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

the prosecution demonstrates the use of procedural safeguards that are 

effective to secure the privilege against self-incrimination.

7. ____: ____: ____. The safeguards provided by Miranda v. Arizona, 

384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), come into play 

whenever a person in custody is subjected to either express questioning 

or its functional equivalent.

8. ____: ____: ____. The safeguards of Miranda v. Arizona, 384 U.S. 436, 

86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), ensure that the individual’s 

right to choose between speech and silence remains unfettered throughout the interrogation process. If the suspect indicates that he or she 

wishes to remain silent or that he or she wants an attorney, the interrogation must cease.

9. Miranda Rights: Right to Counsel: Police Officers and Sheriffs: 

Self-Incrimination. In order to require cessation of custodial interrogation, the subject’s invocation of the right to counsel must be unambig

uous and unequivocal.

10. Miranda Rights: Police Officers and Sheriffs: Words and Phrases.

Under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966), a “custodial interrogation” takes place when questioning is 

initiated by law enforcement after a person has been taken into custody 

or is otherwise deprived of his or her freedom of action in any significant way.

11. ____: ____: ____. The term “interrogation” under Miranda v. Arizona, 

384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), refers not only to 

express questioning, but also to any words or actions on the part of the 

police (other than those normally attendant to arrest and custody) that 

the police should know are reasonably likely to elicit an incriminating 

response from the suspect.

12. ____: ____: ____. An objective standard is applied to determine whether 

there is an interrogation within the meaning of Miranda v. Arizona, 384 

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

13. Identification Procedures: Due Process: Police Officers and Sheriffs.

When considering whether due process prohibits the admission of 

an out-of-court identification at trial, the trial court must first decide 

whether the police used an unnecessarily suggestive identification procedure. If they did, the court must next consider whether the improper 

identification procedure so tainted the resulting identification as to render it unreliable and therefore inadmissible.

14. Constitutional Law: Identification Procedures: Due Process. The 

Due Process Clause does not require a preliminary judicial inquiry into 

the reliability of an eyewitness identification when the identification was 

not procured under unnecessarily suggestive circumstances arranged by 

law enforcement.
- 333 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

15. Trial: Identification Procedures: Police Officers and Sheriffs: 

Motions to Suppress. Suppression of identification evidence on the 

basis of undue suggestion is appropriate only where the witness’ ability 

to make an accurate identification is outweighed by the corrupting effect 

of improper police conduct. When no improper law enforcement activity 

is involved, it suffices to test the reliability of identification testimony 

at trial, through the rights and opportunities generally designed for that 

purpose, such as the rights to counsel, compulsory process, and confrontation and cross-examination of witnesses.

16. Identification Procedures. A determination of impermissible suggestiveness of an identification procedure is based on the totality of 

the circumstances.

17. Criminal Law: Insanity: Proof. Generally, under Nebraska’s commonlaw definition, the insanity defense requires proof that (1) the defendant 

had a mental disease or defect at the time of the crime and (2) the 

defendant did not know or understand the nature and consequences of 

his or her actions or that he or she did not know the difference between 

right and wrong.

18. ____: ____: ____. Under Neb. Rev. Stat. § 29-2203(1) (Reissue 2016), 

the defendant carries the burden to prove the insanity defense by a preponderance of the evidence.

19. Sentences: Appeal and Error. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal 

principles in determining the sentence to be imposed.

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

customarily considered and applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, 

(5) past criminal record or record of law abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the 

amount of violence involved in the commission of the crime.

21. ____. 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 Douglas County: Horacio 

J. Wheelock, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, and 

Allyson A. Mendoza for appellant.
- 334 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Thomas E. Johnson, Jr., appeals his convictions and sentences in the district court for Douglas County for five counts 

of robbery, five counts of use of a weapon (not a firearm) to 

commit a felony, one count of assault in the second degree, 

and one count of attempted escape. Johnson claims on appeal 

that the district court erred when it overruled his motion to 

suppress statements he made while in custody and evidence of 

witness identifications from the photographic lineups (photo 

lineups), when it found that he had not proved his defense of 

insanity, and when it imposed excessive sentences. We reject 

each of Johnson’s assignments of error, and we therefore affirm 

Johnson’s convictions and sentences.

STATEMENT OF FACTS

Between June 15 and 21, 2015, a string of robberies took 

place at five different businesses in Omaha, Nebraska. Each 

robbery involved a knife being used to threaten the victim, and 

victims in all the robberies gave descriptions of the assailant 

that were similar in terms of race, age, height, weight, and 

hair. Three of the five robberies occurred when the victim 

was alone; in one robbery, there were two other individuals 

present; and in the final robbery, two employees were robbed. 

In most of the robberies, the assailant used the knife only to 

threaten the victims, but in one robbery, a struggle ensued and 

the assailant stabbed the victim in the upper arm, shoulder, 

and neck several times. During the struggle, the victim bit the 

assailant’s hand.

Surveillance video from the robbery in which the victim 

had been stabbed was released to local media. Johnson’s 
- 335 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

stepdaughter contacted police to report that her son had seen 

the surveillance video on television and recognized Johnson 

as the suspect. She also reported that she had seen bite marks 

on Johnson’s hand, which was consistent with reports that the 

stabbing victim had bitten the suspect’s hand in the struggle. 

At approximately 7 a.m. on June 23, 2015, police officers went 

to the home that family members shared with Johnson. After 

officers spoke with family members, Johnson’s wife directed 

them to where Johnson was sleeping. Officers woke Johnson 

and observed that he matched the physical description of the 

suspect and that he had bite marks on his hand.

Police officers took Johnson into custody and transported 

him to police headquarters to be interviewed by Det. Jon 

Martin, who was investigating the string of robberies. After 

Martin read Johnson his Miranda rights, Johnson agreed to 

speak with Martin. Johnson generally denied being involved 

in the robberies, and he asserted that he had injured his hand 

doing yardwork. Johnson acknowledged that the person shown 

in a photograph taken from the surveillance video looked 

like him.

Martin created a photo lineup that included a photograph of 

Johnson and photographs of five other men who fit Johnson’s 

general description. While Johnson was being interviewed 

by Martin, another officer went to various locations to meet 

with witnesses from four of the five robberies. The officer 

administered photo lineups to six witnesses who all identified 

Johnson as the person who committed the robberies. The two 

victims in the fifth robbery spoke limited English and primarily spoke Spanish. Therefore, on a later day, Martin accompanied an officer who was fluent in Spanish to meet with the two 

separately. The Spanish-speaking officer administered photo 

lineups to those two victims, who both identified Johnson as 

the robber.

After the officer who conducted the six photo lineups on 

June 23, 2015, reported the identifications to Martin, Johnson 

was arrested and transported from police headquarters to 
- 336 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

jail. As Johnson was being removed from a police vehicle to 

be taken into the jail, he ran from officers. The officers chased 

after and caught Johnson.

On July 16, 2015, the State charged Johnson with five counts 

of robbery and five counts of use of a weapon, not a firearm, 

to commit a felony. The State also charged Johnson with one 

count of assault in the second degree for the robbery in which 

the victim was stabbed and with one count of attempted escape 

for having run from officers when being taken to jail.

On February 10, 2016, based in part on a competency 

evaluation completed by Dr. Bruce Gutnik, the district court 

determined that Johnson was not competent to stand trial and 

committed him to the Lincoln Regional Center (LRC) for 

restoration of competency. On May 19, the court reviewed 

a report by Dr. Farid Karimi, who was treating Johnson at 

LRC, and determined that Johnson remained incompetent to 

stand trial and should stay committed to LRC. On August 19, 

based on a new report from Karimi, the court determined that 

Johnson was then competent to stand trial, and Johnson was 

returned to jail. However, Johnson later filed a new motion 

to determine competency, and on October 6, after reviewing a 

report by Gutnik, the court found that Johnson was no longer 

competent to stand trial and should be recommitted to LRC for 

restoration of competency. On May 5, 2017, the court found 

Johnson competent to stand trial based on a report by Karimi, 

and on May 16, Johnson filed notice pursuant to Neb. Rev. 

Stat. § 29-2203 (Reissue 2016) that he intended to rely on a 

defense of not responsible by reason of insanity.

Prior to trial, Johnson also moved to suppress certain evidence. Johnson moved to suppress statements he made to 

Martin while he was being held at police headquarters on the 

morning of June 23, 2015. He alleged that the statements 

were not freely and voluntarily given and were obtained in 

violation of his constitutional rights. Johnson also moved to 

suppress evidence of identifications made by witnesses based 

on the photo lineups. He alleged that the procedures used by 
- 337 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

officers to obtain the identifications were unduly suggestive 

and prejudicial to his constitutional rights.

Martin testified at the suppression hearing regarding his 

investigation of the robberies. Turning to the morning of June 

23, 2015, Martin testified that he was informed that Johnson 

was being brought to police headquarters by officers who had 

responded to reports from Johnson’s family members. While 

waiting for Johnson to be brought in, Martin retrieved information regarding Johnson from the police computer system, 

including photographs of Johnson. Martin noted that Johnson 

fit the physical description of the suspect and that he “bore a 

very strong resemblance to the party that [Martin] had observed 

in the surveillance video” of one of the robberies. Martin used 

police software to create a photo lineup that included a photograph of Johnson and photographs of five other individuals 

with a similar appearance to Johnson’s in terms of “gender, 

race, age, height and weight.”

Martin then met with Johnson in an interview room at 

approximately 7:47 a.m. Martin began by obtaining general 

biographical information from Johnson. After determining that 

Johnson was responsive and did not appear to be suffering any 

sort of medical condition or to be under the influence of narcotics or alcohol, Martin read Johnson the police department’s 

rights advisory form.

The court received into evidence at the suppression hearing the completed rights advisory form, which indicated that 

Johnson had been informed of his rights and that, knowing his 

rights, he was willing to talk to Martin. The court also received 

into evidence at the suppression hearing a video recording 

of Martin’s interview and interactions with Johnson on June 

23, 2015.

Martin testified that his interview of Johnson regarding the 

robberies began at approximately 7:53 a.m. About 5 minutes 

later, Johnson stated to Martin that the interview was over, 

but Johnson continued talking for some minutes thereafter. 

Martin testified that at approximately 8:03 a.m., Johnson stated 
- 338 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

that Martin could speak with Johnson’s lawyer. Martin testified 

that Johnson remained in the interview room until shortly after 

noon but that Martin did not further interview Johnson during 

that time. Martin testified that Johnson was alone in the room 

most of that time other than during certain brief interactions. 

Martin testified that at his request, police personnel entered the 

room in order to photograph Johnson’s hand because Martin 

had noted injuries which were consistent with bite marks that 

were reported to have been sustained by the suspect in one of 

the robberies. Martin testified that at one point, he brought 

Johnson water and coffee and that at other times, other officers 

had responded to Johnson’s requests to be taken to the bathroom and to adjust the temperature in the room.

The video recording that was received into evidence at the 

suppression hearing showed that at approximately 8:03 a.m., 

Johnson said he was done talking, and that Martin could conduct photo lineups or talk to Johnson’s lawyer or “whatever.” 

The video recording shows that Martin stopped talking and 

left the interview room shortly thereafter. However, Martin 

returned to bring Johnson a drink at approximately 9:45 a.m. 

When Johnson began asking about what the charges against 

him would be, Martin left to get a notepad and returned shortly 

thereafter. Martin and Johnson spoke for approximately 5 to 

10 minutes. During that time, Martin informed Johnson of 

potential charges and informed Johnson that police would be 

obtaining a search warrant for Johnson’s residence. Martin did 

not ask specific questions of Johnson, but Martin made statements to Johnson to the effect that Martin was willing to listen 

if Johnson wanted to explain what happened at the robberies. 

Johnson continued to deny involvement, and Martin left the 

room. Thereafter, at approximately 10:30 a.m., Johnson asked 

other officers if he could talk to a lawyer. When Martin next 

returned to the interview room, he informed Johnson that he 

was being arrested and set forth the charges. Johnson asked if 

they could talk more, but Martin said that they could not talk 

because Johnson had told other officers that he wanted to talk 

to a lawyer.
- 339 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

Martin also testified at the suppression hearing that during 

the hours that Johnson spent in the interview room, another 

police detective, Kerry Windels, was working on contacting 

witnesses to four of the robberies in order to administer the 

photo lineups that Martin had created. Martin testified that after 

Windels reported that all the witnesses from those four robberies had identified Johnson as the robber based on the photo 

lineups, Johnson was arrested at approximately 12:15 p.m. 

Martin and another detective transported Johnson from police 

headquarters to jail to be booked on robbery and assault 

charges. While they were moving Johnson from the vehicle to 

the jail, Johnson ran out the doors of the jail garage and did 

not respond to Martin’s verbal orders. Martin and the other 

detective gave chase and caught Johnson a few feet outside the 

garage door.

Martin further testified that on June 25, 2015, he and another 

police officer, Sgt. Nick Yanez, met with the two victims of the 

fifth robbery, who spoke limited English. Martin had created 

a version of the photo lineup that included instructions and 

questions in Spanish but included the same photographs as 

the original English language version. Yanez administered the 

photo lineups to the two witnesses at separate locations. When 

Yanez administered the photo lineups, Martin was present but 

“stepped several feet away.” Yanez reported to Martin that both 

witnesses had identified Johnson as the robber.

On cross-examination, Johnson elicited from Martin testimony that in July or August 2016, the Omaha Police Department 

had changed its procedures for conducting photo lineups. 

Martin testified that the changes included, inter alia, providing 

each photograph on a separate page rather than including all 

six photographs together on one page, showing a witness one 

photograph at a time and asking the witness to make a decision 

on each photograph before moving on to the next, and asking 

a witness after an identification had been made to state his or 

her level of certainty. Martin testified that the photo lineups in 

this case were conducted under the prior procedures.
- 340 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

Windels and Yanez both testified at the suppression hearing. 

Windels testified that on June 23, 2015, she administered photo 

lineups to six witnesses. Windels testified that she had no part 

in the creation of the photo lineups. Windels was not aware of 

any specifics of the robberies that were being investigated and 

was informed only of the locations in which she would find the 

witnesses. Windels met with three of the six witnesses at locations different from the locations in which she met any other 

witness. She met with three witnesses who were all witnesses 

to one of the robberies at the same location, but she immediately told the three witnesses she would need to separate them 

in order to administer the photo lineups. She told the witnesses 

that they should not talk with one another about the robbery 

or the identification of photographs. Windels administered a 

photo lineup to each witness while that witness was in a room 

with only Windels and the other witnesses were in a room in 

which they could not see or hear what was occurring in the 

room where the photo lineup was being administered. Windels 

read the admonishment and questions provided on the photo 

lineups to each of the six witnesses with whom she met, and 

each of the six witnesses identified the photograph of Johnson 

as depicting the robber.

Yanez testified that he was qualified to act as a Spanish language translator. On June 25, 2015, Martin asked Yanez to 

accompany him to speak with two witnesses and to conduct 

photo lineups. Martin informed Yanez only that he was investigating a series of robberies and that the two witnesses spoke 

little English. Yanez testified that the Spanish language admonishment and questions provided on the photo lineups he administered included the same information used in the English language photo lineups. Both witnesses identified the photograph 

of Johnson as depicting the robber. Yanez testified that Martin 

did not speak with the witnesses while Yanez was administering the photo lineups.

After the suppression hearing, the district court filed an 

order in which it overruled Johnson’s motion to suppress as to 
- 341 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

both his statements to Martin and evidence of the identifications from the photo lineups. Regarding Johnson’s statements 

to Martin, the court found that after Martin read Johnson the 

rights advisory, Johnson “readily waived” such rights and 

agreed to talk with Martin. The court found no evidence to 

indicate that Martin’s questions were not appropriate or to support a finding that Martin’s behavior or questioning was unduly 

coercive. The court therefore found that the State had proved 

that “Johnson’s statements and Miranda waiver were voluntary 

and in no way a product of coercive questioning or methods 

offensive to due process.” The court further found that when 

Johnson invoked his right to counsel, Martin appropriately 

stopped questioning him.

Regarding the witness identifications, the court determined 

that the photo lineups in this case were not unduly suggestive. The court found no evidence of improper suggestive 

circumstances arranged by law enforcement. The court noted 

that Johnson’s photograph did not stand out from the others 

included in the photo lineups in any way and that neither 

Windels nor Yanez encouraged the witnesses to choose one 

photograph over another. The court further noted that neither 

Windels nor Yanez knew which photograph depicted the suspect or who the “‘target’” was. The court rejected Johnson’s 

argument that the police department’s subsequent change in 

its procedure for conducting photo lineups indicated that the 

procedure used in this case was impermissibly suggestive. The 

court found that there was “nothing fatal in the presentation 

of the photo lineups” and that the procedure further protected 

Johnson’s due process rights “by having law enforcement officers who knew nothing about the case and did not know the 

identity of the ‘target’ administer all the lineups.”

Although it concluded that the photo lineups were not 

unduly suggestive, the court further considered the indicators 

of reliability of the identifications. The court noted that the 

witnesses had identified Johnson in photo lineups “only days 

after the robberies,” that each witness had “individualized contact” with the robber for a period of minutes which included 
- 342 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

“close contact” and “adequate lighting,” that the witnesses 

“unequivocally identif[ied]” Johnson, and that there was no 

indication of suggestiveness by the officers administering the 

photo lineups. The court concluded that indicators of reliability 

were sufficient to outweigh any improper suggestiveness.

Johnson waived a jury trial, and the matter was submitted to 

the court in a stipulated bench trial. The State offered into evidence various exhibits, including exhibits that had previously 

been admitted at the suppression hearing. Johnson renewed the 

objections he raised in his motion to suppress his statements 

to Martin and evidence of the identifications from the photo 

lineups. The court overruled the objection and allowed the 

exhibits into evidence. In addition to the identifications and the 

recording of the June 23, 2015, interview by Martin at police 

headquarters that had been reoffered from the suppression 

hearing, other evidence admitted for the bench trial included 

police reports regarding the robberies, as well as surveillance 

videos from two of the robberies. The court also admitted a 

transcript of testimony by Martin, Windels, and Yanez from the 

suppression hearing.

The court did not receive live testimony regarding the elements of the charged offense, but it did receive live testimony 

regarding Johnson’s insanity defense. Johnson offered testimony by Gutnik, and in response, the State called Karimi as 

a witness. The court received into evidence reports by both 

Gutnik and Karimi regarding their respective evaluations of 

Johnson to determine his sanity or insanity at the time of the 

charged offenses.

Gutnik testified regarding his education, training, and 

experience as a psychiatrist. He testified that he had evaluated Johnson four times. The first three times, in November 

2015, September 2016, and April 2017, were to determine 

Johnson’s competence to stand trial. The fourth time, in May 

2017, was to determine his sanity or insanity at the time of 

the alleged offenses. Gutnik’s reports from all four evalua

tions were received into evidence. In connection with the 

competency evaluations, Gutnik had diagnosed Johnson with 
- 343 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

certain conditions, including schizoaffective disorder and posttraumatic stress disorder. In the first two evaluations, Gutnik 

opined that Johnson was not competent to stand trial, and in 

the third evaluation, Gutnik opined that Johnson was competent to stand trial.

After the court found Johnson competent to stand trial, 

Gutnik conducted an evaluation on May 10, 2017, to determine 

whether Johnson was sane or insane at the time of the alleged 

offenses. During Gutnik’s interview of Johnson for the sanity 

evaluation, Johnson told Gutnik that at the time of the offenses, 

he had been hearing a voice in his head which was that of a 

pirate named “Pablo.” Johnson told Gutnik that “Pablo” asked 

him to find buried treasure and threatened to kill him and his 

family if he did not comply with the request. Johnson told 

Gutnik that he had retrieved buried treasure from various locations at the direction of “Pablo” and that he carried a knife 

when retrieving treasure. Johnson told Gutnik that he had both 

auditory and visual hallucinations on a daily basis but that their 

occurrence had decreased.

In his report following the May 2017 evaluation, Gutnik 

opined that Johnson was psychotic at the time of the alleged 

crimes. He further opined that as a result of his condition, 

Johnson was unable to determine the rightness or wrongness of 

his actions, that he was unable to understand the consequences 

of his behavior, and that he did not understand the nature and 

quality of his actions. Gutnik stated that Johnson was delusional and thought that he was a pirate who was forced to 

find treasure because voices had threatened him and his family. Gutnik concluded that in his opinion, within a reasonable 

degree of medical certainty, Johnson was insane at the time of 

the alleged crimes.

The State called Karimi to testify in response to Johnson’s 

insanity defense. Karimi testified regarding his education, training, and experience as a psychiatrist. He testified that he had 

been employed as a forensic psychiatric at LRC while Johnson 

was committed to the facility and that he had opportunity to evaluate Johnson during that time. Karimi testified 
- 344 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

regarding evaluations he had completed in 2016 to determine 

Johnson’s competence to stand trial. In his May 2016 report, 

Karimi determined that Johnson was not competent, but Karimi 

noted a possibility of malingering by Johnson and stated that 

there was a good possibility that Johnson’s competency would 

be restored in the near future. In June 2016, Karimi completed 

a report opining that Johnson was then competent to stand trial. 

Based on Karimi’s June 2016 report, the court found Johnson 

competent to stand trial and ordered him moved from LRC to 

jail. However, Johnson was recommitted to LRC after the court 

in October 2016 found, based on Gutnik’s report, that Johnson 

was again not competent to stand trial. Karimi testified at trial 

regarding Johnson’s treatment during his time at LRC and 

efforts that were taken at LRC to restore his competence.

Karimi also testified regarding his evaluation and report in 

March 2017, which led the court to determine that Johnson 

was again competent to stand trial. In the report, Karimi diagnosed Johnson as malingering. Karimi based this diagnosis on 

testing, as well as his own interactions and experiences with 

Johnson and the observations of other staff and professionals at 

LRC. Karimi noted in particular that no changes in Johnson’s 

conditions had been observed after LRC discontinued his anti

psychotic medication.

Karimi also testified regarding his October 2017 report in 

which he concluded that Johnson did not qualify for an insanity defense at the time of the offenses. Based on his experience with Johnson at LRC and his diagnosis of Johnson as 

malingering, Karimi opined that Johnson was faking symptoms 

of psychosis and had made up the story of the pirate named 

“Pablo” and buried treasure. Karimi opined that it was possible that at the time of the offenses, Johnson may have been 

under the influence of drugs which would have given rise to 

hallucination and delusions, but Karimi noted that a temporary condition caused by ingestion of drugs would not qualify 

under the legal standard for insanity. Karimi also allowed that 

Johnson may have been suffering depression at the time of 
- 345 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

the offenses, but Karimi stated that depression would not have 

impaired Johnson’s mental capacity to the point that he did 

not understand the nature and consequences of his actions or 

did not know the difference between right and wrong. Karimi 

noted that Johnson’s behavior at the time of the offenses indicated that he knew that what he was doing was wrong and that 

he attempted to avoid punishment.

After testimony was completed, the parties submitted written arguments to the district court. The court announced its 

verdict in court on October 22, 2019, and filed a written order 

that same day. The court found that the State had proved each 

element of the charged offenses beyond a reasonable doubt. 

The court then considered Johnson’s defense that he was insane 

at the time he committed the offenses. The court set forth 

the elements of an insanity defense and noted that Johnson 

had the burden to prove the defense. The court stated that it 

had heard testimony by Gutnik and Karimi, whose respective 

professional opinions “diverge[d] drastically” with regard to 

whether Johnson suffered from a mental illness and whether 

he was not responsible by reason of insanity. The court found 

both Gutnik and Karimi to be credible witnesses; however, 

the court found Karimi’s methodology and his diagnosis of 

Johnson as malingering to be more accurate and reliable than 

Gutnik’s opinion. The court noted that Gutnik had met with 

Johnson a total of four times, whereas Karimi and his team of 

professionals at LRC had “spent years living with . . . Johnson 

and had more of an opportunity to observe him and study his 

behaviors.” The court therefore accorded greater weight to 

Karimi’s testimony and the conclusions set forth in Karimi’s 

reports on Johnson’s competency and his sanity at the time 

of the offenses. The court particularly noted that LRC had 

not observed any bizarre behaviors or indication of hallucinations after staff stopped giving Johnson antipsychotic medication without informing Johnson they were discontinuing the 

medication. The court noted this evidence, as well as testing 

which indicated that Johnson was intentionally exaggerating 
- 346 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

his symptoms and wanted to stay at LRC. The court noted with 

favor Karimi’s conclusion, in short, that either Johnson was 

“completely faking his psychotic symptomology” or, alternatively, “at the time of his criminal offenses he could have been 

high on PCP that could have caused very vivid hallucinations 

and delusions.” The court concluded that the evidence showed 

that Johnson was malingering, and the court further found that 

Johnson failed to prove that he was legally insane at the time 

of the commission of the offenses. The court therefore found 

Johnson guilty of all the charged offenses.

The court thereafter held a sentencing hearing at which it 

considered the presentence investigation, as well as arguments 

by Johnson and the State. Johnson argued that although the 

court had rejected his insanity defense, the evidence related to 

his competence and sanity identified mental health issues and 

cognitive deficits, as well as the possibility that he was under 

the influence of drugs at the time of the offenses and that these 

should be considered as mitigating factors in his sentencing. 

Johnson urged sentencing that would allow him an opportunity 

for rehabilitation. The court determined that Johnson was not 

an appropriate candidate for probation and therefore imposed 

sentences of imprisonment. The court sentenced Johnson to 

imprisonment for 35 to 40 years for each of the five convictions 

for robbery and for 1 to 2 years for each of the five convictions 

for use of a weapon. The court ordered that the five sentences 

for robbery be served concurrently with one another, and it 

ordered that the five sentences for use of a weapon be served 

consecutively to the sentences for the underlying felonies and 

to one another. The court sentenced Johnson to imprisonment 

for 19 to 20 years for the second degree assault conviction 

and ordered that the sentence be served concurrently with the 

sentences for the robbery convictions. On the attempted escape 

conviction, the court originally sentenced Johnson based on 

sentencing statutes in effect at the time of sentencing. The 

court later corrected its error because the original sentence was 

outside the range set forth in the sentencing statutes in effect at 
- 347 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

the time of the offense. The court sentenced Johnson to imprisonment for 20 months to 5 years for the attempted escape conviction and ordered that the sentence be served concurrently 

with the sentences for robbery and the sentence for second 

degree assault.

Johnson appeals his convictions and sentences.

ASSIGNMENTS OF ERROR

Johnson claims that the district court erred when it (1) overruled his motion to suppress statements that he made to Martin, 

(2) overruled his motion to suppress evidence of the identifications from the photo lineups, (3) found he had not proved the 

insanity defense, and (4) imposed excessive sentences.

STANDARDS OF REVIEW

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

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

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

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

a two-part standard of review. Regarding historical facts, an 

appellate court reviews the trial court’s findings for clear error. 

Whether those facts meet constitutional standards, however, is 

a question of law, which an appellate court reviews independently of the trial court’s determination. State v. Connelly, 307 

Neb. 495, 949 N.W.2d 519 (2020).

[2] A district court’s conclusion whether an identification 

is consistent with due process is reviewed de novo, but the 

court’s findings of historical fact are reviewed for clear error. 

State v. Pope, 305 Neb. 912, 943 N.W.2d 294 (2020).

[3] The verdict of the finder of fact on the issue of insanity will not be disturbed unless there is insufficient evidence 

to support such a finding. State v. Stack, 307 Neb. 773, 950 

N.W.2d 611 (2020).

[4,5] Absent an abuse of discretion by the trial court, an 

appellate court will not disturb a sentence imposed within the 

statutory limits. State v. Senteney, 307 Neb. 702, 950 N.W.2d 
- 348 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

585 (2020). An abuse of discretion occurs when a trial court’s 

decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, 

reason, and evidence. Id.

ANALYSIS

Johnson’s first two assignments of error relate to evidence 

admitted at the stipulated bench trial over his renewed objections based on issues raised in his motion to suppress. We 

note as a preliminary matter that sufficiency of the evidence 

to convict is relevant even when the defendant has asserted 

an insanity defense. See State v. Stack, supra (considering 

both assignment of error that evidence was not sufficient to 

support conviction and assignment of error that there was not 

sufficient evidence to conclude that defendant was not legally 

insane). We have stated that “[i]t is well settled that when a 

defendant pleads insanity and offers evidence on that issue, the 

plea is an implicit, although not legally operative, admission of 

the State’s charges.” State v. Urbano, 256 Neb. 194, 203, 589 

N.W.2d 144, 152 (1999) (citing State v. Vosler, 216 Neb. 461, 

345 N.W.2d 806 (1984)). Because the plea of insanity is not a 

legally operative admission of the charges, the State still must 

prove the elements of the charged offenses. Therefore, issues 

regarding the admission of evidence to prove the elements of 

the charged offenses are relevant even when the defendant has 

asserted an insanity defense.

District Court Did Not Err When It Overruled 

Johnson’s Motion to Suppress Evidence 

of Johnson’s Custodial Statements.

Johnson first claims that the district court erred when it 

overruled his motion to suppress statements he made to Martin 

while in custody prior to his arrest. He argues that Martin 

continued to interrogate him after he had unambiguously 

invoked his right to counsel and that the district court erred 

when it found that Martin stopped questioning him after he 

requested counsel. We determine that the interrogation was not 
- 349 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

in violation of Miranda safeguards, and we conclude that the 

district court did not err when it overruled Johnson’s motion to 

suppress and allowed the statements into evidence.

[6,7] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. 

Ed. 2d 694 (1966), prohibits the use of statements derived during custodial interrogation unless the prosecution demonstrates 

the use of procedural safeguards that are effective to secure 

the privilege against self-incrimination. State v. Connelly, 307 

Neb. 495, 949 N.W.2d 519 (2020). The Miranda safeguards 

come into play whenever a person in custody is subjected to 

either express questioning or its functional equivalent. State v. 

Connelly, supra.

[8,9] The Miranda safeguards ensure that the individual’s 

right to choose between speech and silence remains unfettered 

throughout the interrogation process. State v. Said, 306 Neb. 

314, 945 N.W.2d 152 (2020). If the suspect indicates that he or 

she wishes to remain silent or that he or she wants an attorney, 

the interrogation must cease. Id. In order to require cessation of 

custodial interrogation, the subject’s invocation of the right to 

counsel must be unambiguous and unequivocal. Id.

There is no dispute that at the beginning of the interrogation on June 23, 2015, at approximately 7:52 a.m., Martin read 

the Miranda advisory to Johnson, and that Johnson waived 

his rights. However, Johnson argues that he unambiguously 

invoked his right to counsel at 8:03 a.m., when he told Martin, 

“you can talk to my lawyer.” Johnson contends that the district 

court agreed this was the point when he invoked his right to 

counsel and that it erroneously concluded Martin stopped interrogating Johnson after his invocation of the right to counsel. 

Johnson notes that although Martin temporarily stopped questioning him, Martin returned at around 9:45 a.m. and continued 

the interrogation by attempting to get him to admit that he had 

committed the robberies.

[10-12] We agree with Johnson to the extent that he contends that Martin continued the interrogation after 9:45 a.m. 

We have stated that under the Miranda rule, a “custodial 
- 350 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

interrogation” takes place when questioning is initiated by 

law enforcement after a person has been taken into custody or 

is otherwise deprived of his or her freedom of action in any 

significant way. State v. Connelly, supra. We have also stated 

that the term “interrogation” under Miranda v. Arizona, supra, 

refers not only to express questioning, but also to any words 

or actions on the part of the police (other than those normally 

attendant to arrest and custody) that the police should know 

are reasonably likely to elicit an incriminating response from 

the suspect. Id. An objective standard is applied to determine whether there is an interrogation within the meaning of 

Miranda v. Arizona, supra. State v. Connelly, supra.

After Martin resumed speaking with Johnson at approximately 9:45 a.m., he did not explicitly ask Johnson questions 

about the robberies. However, Martin told Johnson that police 

were getting a search warrant, and he made statements to 

Johnson to the effect that this was Johnson’s chance to explain 

what had happened at each robbery. We think that such statements, in the context of telling Johnson that police were gathering evidence against him, were words that were “reasonably 

likely to elicit an incriminating response from the suspect” and 

therefore would be considered “‘interrogation’” for purposes 

of Miranda safeguards. See State v. Connelly, 307 Neb. at 505, 

949 N.W.2d at 527.

Although we agree with Johnson that Martin continued the 

interrogation after 9:45 a.m., we do not agree that this interrogation occurred after Johnson had unambiguously invoked 

his right to counsel. Johnson asserts the invocation occurred 

at 8:03 a.m., when he told Martin that the conversation was 

over and that Martin could put him in a photo lineup, or talk to 

Johnson’s lawyer, or “whatever.” We do not read this statement 

as an unambiguous invocation of the right to counsel.

The right to counsel was described in the Miranda advisory 

that was signed by Johnson as “the right to consult with a 

lawyer and have the lawyer with [him] during the questioning” 

and for the court to appoint a lawyer if he could not afford 
- 351 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

one. This is consistent with case law in which we have said 

that a similar advisement was “sufficient to convey to the 

defendant his right to counsel during the questioning even if he 

could not afford one, and sufficient to convey the consequences 

of forgoing that right.” State v. Burries, 297 Neb. 367, 390-91, 

900 N.W.2d 483, 504-05 (2017) (citing Patterson v. Illinois, 

487 U.S. 285, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988)). 

Because the focus of the right to counsel is the defendant’s 

right to consult with counsel and have counsel present for 

questioning of the defendant, Johnson’s statement that Martin 

could talk to Johnson’s lawyer was not an unambiguous invocation of Johnson’s right to counsel. Johnson did not say that 

he wanted to have a lawyer appointed or to consult with a 

lawyer or to have a lawyer present for the questioning. Instead, 

he told Martin that Martin could talk to his lawyer. Although it 

is possible Johnson’s statement could be interpreted as stating 

that he only wanted to talk through his lawyer, the statement 

was not an unambiguous statement of such intent. That is particularly true when considered in context, because in the same 

sentence, Johnson said Martin could conduct a photo lineup or 

talk to Johnson’s lawyer or “whatever.” Thus, it was more an 

expression of what Martin could do than an expression of what 

Johnson wanted to do.

We note that before Martin told Johnson after 9:45 a.m. that 

he would listen if Johnson wanted to explain what happened 

in the robberies, Martin reminded Johnson of the Miranda

advisory and ensured Johnson understood those rights were 

still in effect. We further note that Martin stopped the resumed 

interrogation within approximately 10 minutes because Johnson 

continued to deny involvement. After that time, at around 

10:30 a.m., Johnson told officers other than Martin that he 

wanted to speak with a lawyer. Johnson’s statements at that 

point were unambiguous invocations of the right to counsel. 

The next time Martin spoke to Johnson after that, Martin’s 

purpose was to advise Johnson both that he was being arrested 

and of the nature of the charges against him. When Johnson 
- 352 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

asked Martin whether they could talk more, Martin appropriately responded that he could no longer speak about the robberies, because Johnson had told other officers that he wanted 

to speak with a lawyer.

We acknowledge, as Johnson asserts, that given the district court’s narrative concerning the conversation, the district 

court’s suppression order can be read as finding that Johnson 

invoked his right to counsel at 8:03 a.m. However, when the 

court made its findings, it simply stated that when “Johnson 

invoked his right to counsel . . . Martin appropriately stopped 

questioning . . . Johnson.” The court did not specify in its 

order a finding of the time when Johnson invoked his right of 

counsel. Under our standard of review, we review findings of 

fact for clear error and review independently the determination whether constitutional standards were met. See State v. 

Connelly, 307 Neb. 495, 949 N.W.2d 519 (2020). We therefore review independently the district court’s determination 

that Martin stopped questioning Johnson after Johnson unambiguously invoked his right to counsel. The record shows that 

Johnson did not unambiguously invoke his right to counsel 

until approximately 10:30 a.m. and that Martin did not there

after continue the interrogation.

We therefore conclude that the district court did not err when 

it concluded that the interrogation did not violate Miranda 

safeguards and when it therefore overruled the motion to suppress statements Johnson made to Martin on June 23, 2015. We 

reject this assignment of error.

District Court Did Not Err When It Overruled 

Johnson’s Motion to Suppress Evidence of the 

Identifications From the Photo Lineups.

Johnson next claims that the district court erred when it 

overruled his motion to suppress evidence of the witness identifications from the photo lineups. He argues that the identifications were irreparably tainted by unduly suggestive procedures 

used in conducting the photo lineups. We conclude that the 
- 353 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

court did not err when it admitted evidence of the witness 

identifications from the photo lineups.

[13] The U.S. Supreme Court has stated a two-part test for 

determining whether due process prohibits the admission of 

an out-of-court identification at trial: “‘First, the trial court 

must decide whether the police used an unnecessarily suggestive identification procedure. . . . If they did, the court must 

next consider whether the improper identification procedure 

so tainted the resulting identification as to render it unreliable 

and therefore inadmissible.’” See State v. Newman, 290 Neb. 

572, 579, 861 N.W.2d 123, 131-32 (2015) (quoting Perry v. 

New Hampshire, 565 U.S. 228, 132 S. Ct. 716, 181 L. Ed. 2d 

694 (2012)).

[14,15] The Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured 

under unnecessarily suggestive circumstances arranged by law 

enforcement. State v. Pope, 305 Neb. 912, 943 N.W.2d 294 

(2020). Suppression of identification evidence on the basis of 

undue suggestion is appropriate only where the witness’ ability to make an accurate identification is outweighed by the 

corrupting effect of improper police conduct. Id. When no 

improper law enforcement activity is involved, it suffices to 

test the reliability of identification testimony at trial, through 

the rights and opportunities generally designed for that purpose, such as the rights to counsel, compulsory process, and 

confrontation and cross-examination of witnesses. Id.

[16] A determination of impermissible suggestiveness of 

an identification procedure is based on the totality of the 

circumstances. State v. Newman, supra. Under the totality of 

the circumstances in this case, the district court found that 

the photo lineups in this case were not unduly suggestive. The 

court found no evidence of improper suggestive circumstances 

arranged by law enforcement and noted that Johnson’s photograph did not stand out from the others included in the photo 

lineups, that the officers conducting the photo lineups did 
- 354 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

not encourage the witnesses to choose one photograph over 

another, and that the officers did not know which photograph 

depicted the suspect or who the “‘target’” was.

In our de novo review, we determine that the district court’s 

findings are not clearly erroneous. We also agree with the district court’s reasoning that the police department’s subsequent 

change in its procedure for conducting photo lineups did not 

indicate that the procedure used in this case was impermis

sibly suggestive. The fact that the police department later made 

changes to improve its procedure and to comply with newly 

enacted law does not invalidate prior photo lineups that were 

not otherwise impermissibly suggestive. We conclude that the 

photo lineups were not unduly suggestive and were consistent 

with due process.

Because there is no evidence that the identifications were procured under unnecessarily suggestive circumstances arranged 

by law enforcement, there was no need for a preliminary judicial inquiry into the reliability of the witnesses’ identifications. 

State v. Pope, supra. We therefore need not review the district 

court’s further determination that indicators of reliability of 

the witness identifications were sufficient to outweigh any 

improper suggestiveness.

We conclude that the district court did not err when it overruled the motion to suppress the witness identification evidence 

and when it admitted the evidence at trial. We therefore reject 

this assignment of error.

There Was Sufficient Evidence to Support the 

District Court’s Finding That Johnson 

Failed to Prove Insanity Defense.

Johnson next claims that the district court erred when it 

rejected his insanity defense. He generally argues that Gutnik’s 

testimony was more credible and should have been given 

greater weight than Karimi’s testimony. We conclude that 

there was sufficient evidence to support the district court’s 

finding that Johnson was not insane at the time he committed 

the offenses.
- 355 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

[17,18] Generally, under Nebraska’s common-law definition, the insanity defense requires proof that (1) the defendant 

had a mental disease or defect at the time of the crime and 

(2) the defendant did not know or understand the nature and 

consequences of his or her actions or that he or she did not 

know the difference between right and wrong. State v. Stack, 

307 Neb. 773, 950 N.W.2d 611 (2020). The defendant carries 

the burden to prove the insanity defense by a preponderance 

of the evidence. See § 29-2203(1). The verdict of the finder 

of fact on the issue of insanity will not be disturbed unless 

there is insufficient evidence to support such a finding. State 

v. Stack, supra.

Both Johnson and the State presented testimony by their 

respective experts regarding the issue of Johnson’s sanity at 

the time of the offenses. Johnson presented the testimony of 

Gutnik, who generally opined that Johnson was psychotic at 

the time of the alleged crimes and that as a result of his condition, Johnson was unable to determine the rightness or wrongness of his actions, was unable to understand the consequences 

of his behavior, and did not understand the nature and quality 

of his actions. Gutnik concluded that Johnson was insane at 

the time of the alleged crimes. In response, the State called 

Karimi, who generally opined that Johnson was faking symptoms of psychosis and that at the time of the offenses, he was 

not suffering any condition that would have impaired his mental capacity to the point that he did not understand the nature 

and consequences of his actions or did not know the difference 

between right and wrong. Karimi allowed that Johnson may 

have been “using PCP” at the time of the offenses but noted 

that a temporary condition caused by ingestion of drugs would 

not qualify under the legal standard for insanity.

Johnson generally argues on appeal that Gutnik’s opinion 

established that he was insane at the time of the offenses, 

because his testimony was credible and his opinion regarding 

insanity was consistent with prior evaluations Gutnik performed in order to determine Johnson’s competence to stand 
- 356 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

trial. Johnson generally argues that Karimi’s opinion and 

testimony were less credible because they were inconsistent 

with Johnson’s extensively documented mental health history. 

Johnson further asserts Karimi’s testimony was affected by bias 

he developed while treating Johnson and an ingrained belief 

that Johnson was malingering. Johnson cites other factors that 

he argues affected Karimi’s credibility. Johnson concludes that 

Gutnik’s opinion established legal insanity and that Karimi’s 

testimony did not credibly rebut that finding.

In the order announcing its verdict in this case, the district 

court thoroughly discussed its finding that Johnson was not 

legally insane at the time of the offenses. The court found 

both Gutnik and Karimi to be credible witnesses, although 

their respective professional opinions “diverge[d] drastically” 

with regard to whether Johnson suffered from a mental illness and whether he was not responsible by reason of insanity. The court, however, accorded greater weight to Karimi’s 

opinion because it found Karimi’s methodology and his diagnosis of Johnson as malingering to be more accurate and 

reliable than Gutnik’s opinion. The court therefore found that 

Johnson failed to prove by the greater weight of the evidence 

that he was legally insane at the time of the commission of 

the offenses.

The opinions of Gutnik and of Karimi on the issue of legal 

insanity were in direct conflict with one another, and it was 

the province of the district court as the fact finder in this 

bench trial to resolve that conflict. See State v. Stack, supra

(stating appellate court does not resolve conflicts in evidence, 

pass on credibility of witnesses, or reweigh evidence; such 

matters are for finder of fact). While the court found both 

Gutnik and Karimi to be credible witnesses, the court as fact 

finder accorded greater weight to Karimi’s opinion, and in its 

order, the court explained its reasoning for how it resolved the 

conflict in professional opinions. Because it was the district 

court’s province to determine credibility, resolve conflicts, and 

weigh the evidence, we as an appellate court consider only 
- 357 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

whether there was sufficient evidence to support the finding 

of the court as fact finder. Given the opinions and reasoning 

set forth by Karimi, the record contained sufficient evidence 

for the district court to conclude that Johnson was not legally 

insane at the time of the offenses.

We conclude that there was sufficient evidence to support the district court’s finding regarding Johnson’s insanity 

defense. We therefore reject this assignment of error.

District Court Did Not Abuse Its Discretion 

When Imposing Sentences.

Johnson finally claims that the district court imposed excessive sentences. He argues that the court did not adequately 

consider relevant mitigating factors. We find no abuse of discretion in the sentencing, and we therefore reject this claim.

Johnson was convicted of five counts of robbery, Class II 

felonies under Neb. Rev. Stat. § 28-324(2) (Reissue 2016); five 

counts of use of a deadly weapon other than a firearm to commit 

a felony, Class II felonies under Neb. Rev. Stat. § 28-1205(1)(b) 

(Reissue 2016); one count of second degree assault, a Class III 

felony under Neb. Rev. Stat. § 28-309(2) (Cum. Supp. 2014) at 

the time of the offense; and one count of attempted escape, a 

Class IV felony under Neb. Rev. Stat. § 28-912(5)(a) (Reissue 

2008) and Neb. Rev. Stat. § 28-201(4)(d) (Cum. Supp. 2014). 

The offenses were committed between June 15 and 23, 2015, 

prior to the August 30 effective date of 2015 Neb. Laws, L.B. 

605, and therefore, changes made by that amendment do not 

apply to these offenses. See Neb. Rev. Stat. § 28-105(8) (Supp. 

2015). At the time of the offenses, the sentencing range for a 

Class II felony was imprisonment for 1 to 50 years; for a Class 

III felony was imprisonment for 1 to 20 years, a $25,000 fine, 

or both; and for a Class IV felony was imprisonment for a 

maximum of 5 years, a $10,000 fine, or both. § 28-105 (Cum. 

Supp. 2014). The robbery and weapon convictions were Class 

II felonies, and the district court sentenced Johnson to imprisonment for 35 to 40 years for each of the robberies and for 
- 358 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

1 to 2 years for each of the weapon convictions. The second 

degree assault conviction was for a Class III felony, and the 

district court sentenced Johnson to imprisonment for 19 to 20 

years. The attempted assault conviction was for a Class IV 

felony, and the district court sentenced Johnson to imprisonment for 20 months to 5 years. The court ordered all of the 

sentences to be served concurrently with one another except for 

the sentences for the weapon convictions, which, as required 

by § 28-1205(3), the court ordered to be served consecutively 

to one another and to all the other sentences imposed.

[19] The sentences imposed by the court were therefore 

within statutory limits. Where a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its 

discretion in considering and applying the relevant factors as 

well as any applicable legal principles in determining the sentence to be imposed. State v. Price, 306 Neb. 38, 944 N.W.2d 

279 (2020). We therefore consider whether the court abused its 

discretion when it imposed those sentences.

[20,21] Johnson argues that the district court abused its 

discretion when it sentenced him because it did not adequately 

consider relevant mitigating factors. In determining a sentence 

to be imposed, relevant factors customarily considered and 

applied are the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) 

past criminal record or record of law abiding conduct, and 

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

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

Johnson argues specifically that the court failed to adequately consider his social background, education, and mentality when it imposed sentences of imprisonment for a total of 
- 359 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

40 to 50 years. He asserts that the record is replete with evidence of his extensive history of substance abuse, as well as 

a history of being a victim of verbal, physical, and sexual 

abuse since his childhood. He argues that these experiences 

had a profound impact on his development and his long history of mental illness, which is also documented in the record. 

Johnson further notes evidence that he attended special education classes and that he had an estimated IQ of 73 and showed 

significant cognitive impairment. Johnson argues that these 

factors rendered him vulnerable to making poor decisions and 

that the lengthy total sentence imposed by the court depreciated the recognition that his mental health and substance abuse 

issues required rehabilitative measures. Johnson asserts that 

these mitigating factors warrant a lesser sentence.

The record indicates that Johnson made similar arguments 

at the sentencing hearing and that there was evidence in the 

record for the court to be aware of the mitigating factors 

asserted. At the sentencing hearing, the district court stated 

that it had considered relevant factors including, as relevant to 

Johnson’s excessive sentence arguments, Johnson’s “mentality, education and experience, [and] social and cultural background.” But the court also considered other relevant factors, 

including Johnson’s “past criminal record [and] motivation for 

the offense[s], the nature of the offense[s,] and the violence 

involved in the commission of the offenses.” Although the 

court did not extensively discuss its reasoning or its consideration of these factors, as the State notes, the record shows 

factors that support the sentences imposed, including testing 

that showed a high to very high risk to reoffend and a criminal history that included several robberies and burglaries that 

occurred prior to the series of robberies that gave rise to the 

present case.

We further note that while the sentences imposed for the 

robberies, the second degree assault, and the attempted escape 

were toward the top of the statutory ranges, the court lessened 

the severity of the sentencing by ordering these sentences to 
- 360 -

Nebraska Supreme Court Advance Sheets

308 Nebraska Reports

STATE v. JOHNSON

Cite as 308 Neb. 331

be served concurrently rather than consecutively. Furthermore, 

with regard to the sentences for the weapons convictions, 

which were statutorily required to be served consecutively to 

one another and to the other sentences, the court imposed sentences of imprisonment of 1 to 2 years when the permissible 

maximum term of imprisonment was 50 years. By imposing 

short sentences for these convictions, which are required to be 

served consecutively to other sentences, the court significantly 

lessened the potential total term of imprisonment. Considering 

all the relevant factors and all the sentences imposed in this 

case, we think the sentences imposed were justified.

We conclude that the sentences imposed by the district 

court were not an abuse of discretion, and we therefore reject 

Johnson’s claim that the district court imposed excessive 

sentences.

CONCLUSION

We conclude that the district court did not err when it overruled Johnson’s motion to suppress evidence of his statements 

to police and of the identifications from the photo lineups. 

We further conclude that the court did not err when it found 

that Johnson had not proved the insanity defense. We finally 

conclude that the court did not abuse its discretion in sentencing Johnson. We therefore affirm Johnson’s convictions 

and sentences.

Affirmed.