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300 Nebraska Report

STATE v. BROWN

Cite as 300 Neb. 57

State of Nebraska, appellee, v.

Darwin E. Brown, appe

___ N.W.2d ___

Filed May 25, 2018. Nos. S-17-442 through S-17-444.

1. Statutes: Judgments: Appeal and Error. The meaning of a statute is a 

question of law, on which an appellate court has an obligation to reach 

an independent conclusion irrespective of the decision made by the 

court below.

2. Sentences: Appeal and Error. A sentence imposed within statutory 

limits will not be disturbed on appeal absent an abuse of discretion by 

the trial court.

3. ____: ____. An abuse of discretion in imposing a sentence occurs when 

a sentencing court’s reasons or rulings are clearly untenable and unfairly 

deprive the litigant of a substantial right and a just result.

4. Sentences. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge’s observation of the 

defendant’s demeanor and attitude and all the facts and circumstances 

surrounding the defendant’s life.

5. ____. 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.

Appeals from the District Court for Lancaster County: Lor

A. Maret, Judge. Affirme

Joe Nigro, Lancaster County Public Defender, Bradley A. 

Sipp, and, on brief, Jennifer M. Houlden for appellant.

Douglas J. Peterson, Attorney General, and Joe Meyer for 

appellee.

Nebraska Supreme Court Online Library

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

07/06/2018 09:12 AM CDT
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STATE v. BROWN

Cite as 300 Neb. 57

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

JJ., and Harder and Noakes, District Judges

Miller-Lerman,

NATURE OF CASE

Cases Nos. S-17-442 through S-17-444 have been consolidated before us on appeal. In each of these three appeals, 

Darwin E. Brown appeals his conviction and sentence in the 

district court for Lancaster County for driving under the influence. With regard to each conviction, Brown was found to 

have had two prior convictions as defined by Neb. Rev. Stat. 

§ 60-6,197.02(1)(a) (Cum. Supp. 2016). Brown claims, inter 

alia, that a prior conviction in Missouri should not have been 

used for purposes of enhancing his sentences for these convictions. Because we conclude that the Missouri conviction was 

valid for use as a prior conviction in each of these cases, we 

affirm Brown’s convictions and sentences.

STATEMENT OF FACTS

In each of these three cases, the State filed an information 

against Brown in the district court for Lancaster County alleging that he committed the crime of driving under the influence 

(hereinafter DUI) in violation of Neb. Rev. Stat. § 60-6,196 

(Reissue 2010). The dates of the charged offenses were July 

19, 2015, and January 16 and May 6, 2016. The State also 

alleged in each information that at the time of the offense, 

Brown had a breath alcohol concentration of .15 grams or 

above of alcohol per 210 liters of breath. The State further 

alleged in each information that at the time of the offense, 

Brown had two prior convictions as defined by § 60-6,197.02: 

one for an offense that occurred on December 1, 2013, in 

Nebraska and one for an offense that occurred on December 

17, 2003, in Missouri.

Pursuant to a plea agreement, Brown pled guilty to the three 

DUI charges and, in exchange, the State refrained from filing 

additional charges and from charging a separate DUI offense, 

which was pending in the county court, as a third offense 
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rather than as a second offense. At the plea hearing, the State 

gave a factual basis as to each charge, which factual basis was 

generally that on the alleged date, Brown was subjected to a 

traffic stop by a law enforcement officer, that the officer saw 

signs of impairment and conducted preliminary tests, and that 

a breath test performed after Brown was transported to jail 

showed that he had an alcohol concentration in excess of .15. 

The court accepted Brown’s pleas and found him guilty of the 

charged offenses.

At an enhancement hearing, the district court received evidence of the two alleged prior offenses. At the hearing, the 

court found that the Nebraska conviction was a valid prior conviction for purposes of enhancement. The court reserved ruling 

on the Missouri conviction; but at the sentencing hearing, the 

court found that the Missouri conviction was a valid prior conviction for purposes of enhancement. The court concluded that 

as to each of the current offenses, Brown had two prior DUI 

convictions, including the Missouri conviction, and that he 

had a breath alcohol concentration in excess of .15. Therefore, 

under Neb. Rev. Stat. § 60-6,197.03(6) (Supp. 2013 & Cum. 

Supp. 2014), each offense was a Class IIIA felony.

The court sentenced Brown to consecutive terms of imprisonment for 3 to 5 years for the conviction of the July 2015 

incident, for 3 to 3 years for the conviction of the January 

2016 incident, and for 3 to 3 years for the conviction of the 

May 2016 incident. Because the July 2015 incident occurred 

before the August 30, 2015, effective date of statutory changes 

made by 2015 Neb. Laws, L.B. 605, a higher maximum 

penalty of 5 years’ imprisonment applied to that conviction. 

However, the two other convictions for the offenses which 

occurred after August 30, 2015, were subject to a maximum 

penalty of 3 years’ imprisonment because of changes made 

by L.B. 605. Further, Brown’s sentences for the convictions 

of the January and May 2016 offenses were not subject to 

postrelease supervision, because the court imposed the sentences in those cases consecutively to the sentence for the July 

2015 offense. In State v. Chacon, 296 Neb. 203, 894 N.W.2d 
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238 (2017), we cited Neb. Rev. Stat. § 29-2204.02(4) (Reissue 

2016), which provides:

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

or IV felony for an offense committed on or after August 

30, 2015, imposed consecutively or concurrently with 

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

offense committed prior to August 30, 2015, or (b) a 

sentence of imprisonment for a Class I, IA, IB, IC, ID, 

II, or IIA felony, the court shall impose an indeterminate 

sentence within the applicable range in section 28-105 

that does not include a period of post-release supervision, in accordance with the process set forth in section 29-2204.

Section 29-2204.02(4) became effective April 20, 2016, and 

we held in Chacon that § 29-2204.02(4) applied to a sentence that was not final on the effective date of the statute. 

Section 29-2204.02(4) applied to the sentencing in these cases, 

which sentencing occurred on April 4, 2017. In addition to the 

sentences of imprisonment in each of these cases, the court 

ordered that Brown’s driver’s license be revoked for 15 years.

Brown appeals his three convictions and sentences. We consolidated the three appeals.

ASSIGNMENTS OF ERROR

In each of these appeals, Brown claims that the district court 

erred when it used the Missouri conviction as a prior conviction to enhance his sentences for the present DUI convictions. 

He also claims the court imposed excessive sentences.

STANDARDS OF REVIEW

[1] The meaning of a statute is a question of law, on which 

an appellate court has an obligation to reach an independent 

conclusion irrespective of the decision made by the court 

below. State v. Garcia, 281 Neb. 1, 792 N.W.2d 882 (2011).

[2,3] A sentence imposed within statutory limits will not be 

disturbed on appeal absent an abuse of discretion by the trial 

court. State v. Smith, 295 Neb. 957, 892 N.W.2d 52 (2017). 
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An abuse of discretion in imposing a sentence occurs when a 

sentencing court’s reasons or rulings are clearly untenable and 

unfairly deprive the litigant of a substantial right and a just 

result. Id.

ANALYSIS

Use of Missouri Conviction as a Prior 

Conviction Was Not In Error.

Brown first claims that the district court erred when it used 

the Missouri conviction as a prior conviction to enhance his 

sentences for the present DUI convictions. We conclude that 

the use of the Missouri conviction as a prior conviction was 

not in error.

Section 60-6,197.03 sets forth penalties for DUI convictions under § 60-6,196. The promulgated penalties include 

enhanced sentences for offenders who have had prior convictions. In these cases, Brown’s convictions were sentenced as 

Class IIIA felonies pursuant to § 60-6,197.03(6) which applies 

when the defendant “has had two prior convictions and, as part 

of the current violation, had a [blood or breath alcohol] concentration” in excess of .15. Section 60-6,197.02(1)(a)(i)(C) 

provides that for purposes of sentencing for a violation of 

§ 60-6,196, a prior conviction includes, inter alia, “[a]ny conviction under a law of another state if, at the time of the 

conviction under the law of such other state, the offense for 

which the person was convicted would have been a violation 

of . . .” § 60-6,196 or one of the other enumerated Nebraska 

DUI-related statutes.

Brown argues that his Missouri conviction for driving 

while intoxicated (DWI) in 2003 would not necessarily have 

been a DUI in Nebraska, because the Missouri statute under 

which he was convicted provided a lower threshold for intoxication than under Nebraska law. Brown relies in part on our 

decision in State v. Mitchell, 285 Neb. 88, 95, 825 N.W.2d 

429, 434 (2013), in which we held that a Colorado conviction for “driving while ability impaired” (DWAI) was not a 

prior DUI conviction for enhancement purposes, because the 
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threshold for proving a DWAI in Colorado was the “slightest 

degree” of impairment and was lower than the threshold for 

proving DUI in Nebraska.

The evidence presented by the State in these cases indicated that Brown’s 2003 conviction in Missouri was for “Dwi 

- Alcohol” pursuant to Mo. Rev. Stat. § 577.010 (West 2003), 

which provided that “[a] person commits the crime of ‘driving while intoxicated’ if he operates a motor vehicle while 

in an intoxicated or drugged condition.” Another Missouri 

statute, Mo. Rev. Stat. § 577.001(2) (West 2003), defined 

“‘intoxicated condition’” as being “under the influence of 

alcohol, a controlled substance, or drug, or any combination thereof.”

At the time of Brown’s Missouri conviction, § 60-6,196(1) 

(Supp. 2003) provided that it was “unlawful for any person 

to operate or be in the actual physical control of any motor 

vehicle . . . [w]hile under the influence of alcoholic liquor or 

of any drug.” Comparing the language of the relevant statutes 

in Missouri and Nebraska, we determine that a conviction for 

the offense of DWI under the Missouri statutes would have 

established a DUI violation under § 60-6,196.

A conviction under the Missouri statutes required that 

one “operates a motor vehicle while in an intoxicated or 

drugged condition,” see § 577.010, and defined “intoxicated 

condition” as being “under the influence of alcohol, a controlled substance, or drug, or any combination thereof,” see 

§ 577.001(2). Reading the two statutes together, a conviction 

for DWI in Missouri required proof that one “operate[d] a 

motor vehicle while . . . under the influence of alcohol, a controlled substance, or . . . any combination thereof.” This statutory language setting forth the offense of DWI in Missouri 

was substantially the same as the language of § 60-6,196(1), 

which defined proof of DUI to include that one “operate[d] 

. . . any motor vehicle . . . [w]hile under the influence of 

alcoholic liquor or of any drug.” Both the Missouri and 

the Nebraska statutory schemes effectively required that one 
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operate a motor vehicle while “under the influence” of alcohol 

or a drug. Although the Missouri statute referred to the offense 

as “DWI” rather than “DUI,” it included essentially the statutory elements that were necessary to establish DUI under 

§ 60-6,196 in Nebraska.

Brown’s argument looks beyond the statutory language and 

relies on court interpretations of the two states’ statutes. He 

notes that Missouri courts clarified that “‘under the influence of alcohol’” meant “‘any intoxication that in any manner 

impairs the ability of a person to operate an automobile.’” 

State v. Edwards, 280 S.W.2d 184, 189 (Mo. App. 2009). He 

compares Missouri case law to cases in which this court has 

stated that the Nebraska statutory phrase “‘under the influence of alcoholic liquor or of any drug’” requires the ingestion 

of alcohol or drugs in an amount sufficient to impair to “any 

appreciable degree” the driver’s ability to operate a motor vehicle in a prudent and cautious manner. State v. Falcon, 260 Neb. 

119, 123, 615 N.W.2d 436, 439 (2000). Brown contends that 

Missouri and Nebraska required different levels of impairment 

and that Missouri’s standard of impairment “‘in any manner’” 

was a lower threshold than Nebraska’s requirement of impairment to “‘any appreciable degree.’” Briefs for appellant at 10. 

He likens the Missouri standard of impairment “in any manner” to the Colorado statutory language referring to impairment 

to the “slightest degree” that we found in State v. Mitchell, 

285 Neb. 88, 825 N.W.2d 429 (2015), to be a lower threshold 

than Nebraska’s standard of impairment to “‘an appreciable 

degree.’” Briefs for appellant at 13.

Contrary to Brown’s analysis, the starting point in a comparison of another state’s statutorily defined offense to Nebraska’s 

statutory DUI offenses should be to compare the statutory 

language in the other state to the language of the relevant 

Nebraska statute. The definition of “[p]rior conviction” under 

§ 60-6,197.02(1)(a)(i)(C) includes a conviction in another state 

when “the offense for which the person was convicted would 

have been a violation of” § 60-6,196 or one of the other 
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enumerated Nebraska DUI-related statutes. We read this definition as requiring an initial comparison of the other state’s statutory definition of the offense to Nebraska’s statutory definition 

of a DUI-related offense. If it is clear that the offense as statutorily defined in the other state would have been a violation of 

the relevant Nebraska statute, no further inquiry is required. 

In the present case, as we determined above, the minimum 

requirements for a conviction under the Missouri statutes under 

which Brown was convicted would have been a violation of 

§ 60-6,196.

This focus on statutory language and the statutory elements 

of the offenses in the two states was recognized in Mitchell, 

wherein we stated that the defendant’s Colorado “conviction 

of DWAI was a determination that his conduct met the minimum requirement for violation of the DWAI statute” and that 

the conviction made no other determination. 285 Neb. at 94, 

825 N.W.2d at 434. We stated that it was the fact of conviction under the other state’s statutorily defined offense, and “not 

the record of a defendant’s conduct at the time of the arrest, 

that is relevant to our analysis.” Id. We therefore concluded 

that punishment for the Nebraska conviction could not be 

enhanced solely “because the facts of his arrest and conviction in Colorado could support the higher requirement for a 

Nebraska DUI,” id., when the minimum requirements to establish the Colorado offense would not support a conviction for 

DUI in Nebraska.

The analytical lesson from Mitchell directs us to focus 

initially on a comparison of statutes and only if the outcome 

is unclear do we then expand the inquiry to case law interpretation of the statutes. And trivial differences in statutory 

language do not necessarily make the comparison unclear. In 

Mitchell, this initial comparison did not show that conduct 

meeting the minimum requirement of the Colorado DWAI 

statute would constitute a violation of the Nebraska statute, 

§ 60-6,196. The Colorado DWAI statutes required only that “a 

person has consumed alcohol . . . that affects the person to the 
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slightest degree.” See Colo. Rev. Stat. Ann. § 42-4-1301(g) 

(West Cum. Supp. 2017). Because this statutory language 

did not clearly establish a violation of § 60-6,196(1), which 

required that the defendant be “under the influence of alcoholic liquor or of any drug,” we looked to Nebraska case 

law interpreting § 60-6,196 to see whether evidence of being 

affected “to the slightest degree” would nevertheless constitute being “under the influence of alcoholic liquor” under 

Nebraska statutory law. Because case law required impairment to “any appreciable degree” rather than to “the slightest 

degree,” we concluded that a conviction establishing the minimum requirements for DWAI in Colorado did not constitute a 

violation of § 60-6,196.

Compared to the Colorado statute in State v. Mitchell, 285 

Neb. 88, 825 N.W.2d 429 (2013), if one met the minimum 

statutory requirements of the offense of DWI in the Missouri 

statutes discussed above, one would also be in violation of 

§ 60-6,196. Both statutory schemes used the standard of 

being “under the influence” of alcohol. We conclude that the 

Missouri and Nebraska statutes require the same elements, and 

the fact that case law in each state may describe that standard 

with slightly different language does not inform or change 

our determination.

One key factor in our decision in Mitchell was that in addition to the DWAI statute at issue, Colorado had a separate 

DUI subsection that required a higher level of impairment 

than was required for DWAI. See § 42-4-1301(f). We found 

Colorado’s distinction between DUI and DWAI relevant to our 

determination that conviction for DWAI in Colorado did not 

establish DUI under § 60-6,196. Brown attempts to apply this 

aspect of Mitchell to his advantage and notes that Missouri 

also had a statute, Mo. Rev. Stat. § 577.012 (West 2003), that 

set forth an offense of “‘driving with excessive blood alcohol 

content,’” which required that the person have a certain level 

of alcohol in his or her blood. Brown argues that the existence 

of this separate statute in Missouri is similar to Colorado’s 
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statutory distinction between DWAI and DUI and indicates 

that a conviction under Missouri’s DWI statute would not be a 

violation of § 60-6,196. However, the existence of § 577.012 

does not support Brown’s argument. Instead, it shows that 

Missouri’s statutory scheme is similar to § 60-6,196, which 

provides that one can commit DUI by, inter alia, being “under 

the influence” pursuant to subsection (1)(a) or by having a 

specified concentration of alcohol in one’s blood or breath 

pursuant to subsections (1)(b) and (c). The difference between 

Nebraska’s and Missouri’s statutory scheme is merely that 

Nebraska includes in one statute what Missouri included in 

more than one statute. Missouri’s separate statutes, which each 

correspond to a separate part of § 60-6,196, do not inform 

our analysis in the same way that Colorado’s two subsections, 

which set forth different levels of impairment, compelled our 

analysis in Mitchell.

We conclude that Brown’s conviction for DWI in Missouri 

would have constituted a violation of § 60-6,196. We therefore conclude that the district court’s determination that the 

Missouri conviction was a prior conviction for purposes of 

enhancing the current offenses was not in error.

District Court Did Not Abuse Its 

Discretion in Sentencing Brown.

Brown also claims that the court imposed excessive sentences. We conclude that the district court did not abuse its 

discretion in sentencing Brown.

After an enhancement hearing, each of Brown’s offenses 

in this appeal was determined to be a Class IIIA felony 

under § 60-6,197.03(6). With regard to the conviction of the 

offense that occurred in July 2015, the statutory range for a 

Class IIIA felony included imprisonment for a maximum of 5 

years. Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014). For the 

convictions of the offenses that occurred in January and May 

2016, the statutory range for a Class IIIA felony included 

imprisonment for a maximum of 3 years. § 28-105 (Supp. 
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2015). As noted above, Brown’s sentences for the convictions 

of the January and May 2016 offenses were not subject to 

postrelease supervision requirements under L.B. 605, because 

the court imposed those sentences consecutively to the sentence for the conviction of the July 2015 offense. The sentences of imprisonment for 3 to 5 years for the conviction of 

the July 2015 incident, for 3 to 3 years for the conviction of 

the January 2016 incident, and for 3 to 3 years for the conviction of the May 2016 incident are therefore within statutory 

limits, so we next consider whether the sentences were an 

abuse of discretion.

[4,5] The appropriateness of a sentence is necessarily a 

subjective judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the 

facts and circumstances surrounding the defendant’s life. State 

v. Cerritos-Valdez, 295 Neb. 563, 889 N.W.2d 605 (2017). 

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. State v. Russell, 299 Neb. 483, 908 N.W.2d 669 (2018). 

Additionally, when deciding if it is appropriate to withhold a 

sentence of imprisonment and grant probation, a sentencing 

court is guided by the statutory grounds set forth in Neb. Rev. 

Stat. § 29-2260 (Reissue 2016).

Brown notes that the court imposed the maximum sentence 

of imprisonment in each case and ordered the sentences to be 

served consecutively. He argues that the court focused almost 

exclusively on his history of committing DUI’s and did not 

give adequate consideration to mitigating factors both when 

it determined the length of his sentences and when it decided 

against imposing a sentence of probation instead of imprisonment. He acknowledges his history and his problems with alcoholism, but he argues that the court ignored his rehabilitative 
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needs, his life circumstances, his employment history, and his 

willingness to enter pleas in these cases.

With regard to Brown’s willingness to enter pleas, we note 

that as part of the plea agreement, the State agreed to refrain 

from filing additional charges and from enhancing the penalty 

in a separate case pending in county court. Although the court 

did not extensively discuss mitigating factors, such factors 

were presented to and considered by the court. The court’s 

comments at sentencing indicated that to the extent mitigating 

factors were present, the court found them to be substantially 

outweighed by concerns regarding the seriousness of Brown’s 

offenses and the danger he presented to the community. The 

court noted that including the pending case in county court 

and the three cases in this appeal, Brown had been arrested 

for driving drunk four times within a year and that at least 

in the three cases on appeal, he had an alcohol concentration 

well over .15.

We do not think the court considered inappropriate factors, nor did it fail to consider mitigating factors. The court 

determined that factors such as the seriousness of the offense 

and the danger Brown posed to the community favored the 

imposition of a long term of imprisonment; such determination was within the court’s discretion. We conclude that the 

district court did not abuse its discretion in sentencing Brown 

in these cases.

CONCLUSION

We conclude that the court’s use of the Missouri conviction as a prior conviction in these cases was not in error. 

We further conclude that the district court did not abuse its 

discretion in sentencing Brown in these cases. We therefore 

affirm Brown’s convictions and sentences in these consolidated appeals.

Affirmed