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State of Nebraska, appellee, v.

Carla Montoya, appella

___ N.W.2d ___

Filed September 27, 2019. No. S-18-342.

1. Constitutional Law: Motions to Suppress: Confessions: 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. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower 

court’s determination.

3. Constitutional Law: Statutes: Judgments: Appeal and Error. The 

constitutionality and construction of statutes are questions of law, 

regarding which appellate courts are obligated to reach conclusions 

independent of those reached by the court below.

4. Trial: Convictions: Evidence: Appeal and Error. An appellate court 

will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the 

State, is sufficient to support that conviction. In making this determination, an appellate court does not resolve conflicts in the evidence, 

pass on the credibility of witnesses, evaluate explanations, or reweigh 

the evidence presented, which are within a fact finder’s province for 

disposition. Instead, the relevant question is whether, after viewing the 

evidence in the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime beyond a 

reasonable doubt.

Nebraska Supreme Court Online Library

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

10/18/2019 01:06 AM CDT
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5. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

6. Miranda Rights. The warnings required by Miranda v. Arizona, 384 

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

when a suspect interrogated by the police is “in custody.”

7. ____. The ultimate inquiry for determining whether a person is “in custody” for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 

16 L. Ed. 2d 694 (1966), is simply whether there is a formal arrest or 

restraint on freedom of movement of the degree associated with a formal arrest.

8. ____. The test for custody under Miranda v. Arizona, 384 U.S. 436, 86 

S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is to be determined based on how 

a reasonable person in the suspect’s situation would perceive his or her 

circumstances. It is an objective inquiry and does not depend on the subjective views harbored by either the interrogating officer or the person 

being interrogated.

9. ____. The test for determining custody under Miranda v. Arizona, 384 

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

inquiries: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person 

have felt he or she was not at liberty to terminate the interrogation 

and leave.

10. Constitutional Law: Confessions. The 5th Amendment to the U.S. 

Constitution, along with the Due Process Clause of the 14th Amendment, 

prevents the use of involuntary confessions in criminal convictions.

11. Miranda Rights. The question of whether a custodial interrogation 

complies with Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. 

Ed. 2d 694 (1966), is distinct from the question of whether statements 

made during a custodial interrogation were sufficiently voluntary.

12. Confessions: Proof. The State has the burden to prove that a defendant’s statement was voluntary and not coerced.

13. Confessions. Whether a defendant’s statement was voluntarily given 

depends on the totality of the circumstances. Factors to consider include 

the interrogator’s tactics, the details of the interrogation, and any characteristics of the accused that might cause his or her will to be easily overborne.

14. Confessions: Police Officers and Sheriffs. While the confession of an 

accused may be involuntary and inadmissible if obtained in exchange 

for a promise of leniency, mere advice or exhortation by the police that 

it would be better for the accused to tell the truth, when unaccompanied 

by either a threat or promise, does not make a subsequent confession 
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involuntary. In order to render a statement involuntary, any benefit 

offered to a defendant must be definite and must overbear his or her 

free will.

15. Statutes: Appeal and Error. Statutory language is to be given its plain 

and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.

16. Criminal Law: Minors: Intent. Neb. Rev. Stat. § 28-707(1)(a) through 

(f) (Reissue 2016) defines the offense of child abuse. Then, § 28-707(3) 

through (8) classifies the level of any such offense based on two factors: 

the actor’s state of mind when committing the offense and the degree of 

harm to the child resulting from the offense.

17. Criminal Law: Minors: Intent: Proof. To convict a defendant of the 

Class IB felony of knowing and intentional child abuse resulting in 

death under Neb. Rev. Stat. § 28-707 (Reissue 2016), the State must 

prove the defendant knowingly and intentionally caused or permitted the 

child to be abused in one or more of the ways defined in § 28-707(1), 

and also must prove the offense resulted in the child’s death, as required 

by § 28-707(8). It is not necessary, however, to prove the defendant 

intended the abuse to result in death.

18. Statutes. It is not within the province of the courts to read a meaning 

into a statute that is not there or to read anything direct and plain out of 

a statute.

19. Plea in Abatement: Evidence: Appeal and Error. An error in a ruling on a plea in abatement challenging whether there was sufficient 

evidence to bind a case over for trial is cured by a subsequent finding 

at trial of guilt beyond a reasonable doubt which is supported by sufficient evidence.

20. Criminal Law: Evidence: Appeal and Error. When a criminal defendant challenges the sufficiency of the evidence upon which a conviction 

is based, the relevant question for an appellate court is whether, after 

viewing the evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt.

21. Constitutional Law: Statutes: Standing: Proof. Standing to challenge 

the constitutionality of a statute under the federal or state Constitution 

depends upon whether one is, or is about to be, adversely affected by the 

language in question. To establish standing, the contestant must show 

that as a consequence of the alleged unconstitutionality, the contestant 

is, or is about to be, deprived of a protected right.

22. Constitutional Law: Statutes. Courts will not decide a question concerning the constitutionality of a statute unless such question has been 
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raised by a litigant whose interests are adversely affected by the questioned statute.

23. Constitutional Law: Statutes: Presumptions. Courts will presume 

a statute to be constitutional and will resolve all reasonable doubts in 

favor of its constitutionality.

24. Constitutional Law: Statutes: Proof. The burden to clearly demonstrate that a statute is unconstitutional rests upon the party making the 

claim of unconstitutionality.

25. Constitutional Law: Criminal Law: Statutes. A penal statute must be 

construed so as to meet constitutional requirements if such can reasonably be done.

26. Equal Protection. The Equal Protection Clause does not forbid classifications; it simply keeps governmental decisionmakers from treating 

differently persons who are in all relevant respects alike.

27. ____. When a classification created by state action does not jeopardize 

the exercise of a fundamental right or categorize because of an inherently suspect characteristic, the Equal Protection Clause requires only 

that the classification rationally further a legitimate state interest.

28. Constitutional Law: Statutes: Legislature: Intent: Appeal and Error.

Under rational basis review, an appellate court will uphold a classification created by the Legislature where it has a rational means of promoting a legitimate government interest or purpose. In other words, the 

difference in classification need only bear some relevance to the purpose 

for which the difference is made.

29. Equal Protection: Proof. Under the rational basis test, whether an equal 

protection claim challenges a statute or some other government act or 

decision, the burden is upon the challenging party to eliminate any reasonably conceivable state of facts that could provide a rational basis for 

the classification.

30. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness 

doctrine requires that a penal statute define the criminal offense with 

sufficient definiteness that ordinary people can understand what conduct 

is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

31. Constitutional Law: Statutes: Standing. The test for standing to assert 

a vagueness challenge is the same whether the challenge asserted is 

facial or as applied. To assert a claim of vagueness, a defendant must 

not have engaged in conduct which is clearly prohibited by the questioned statute. Furthermore, a defendant cannot maintain that the statute 

is vague when applied to the conduct of others, because a court will not 

examine the vagueness of the law as it might apply to the conduct of 

persons not before the court.
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32. 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.

33. 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.

34. 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.

35. 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.

36. ____. 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 Madison County: James

G. Kube, Judge. Affirmed

Ronald E. Temple, of Fitzgerald, Vetter, Temple & Bartell, 

for appellant.

Douglas J. Peterson, Attorney General, and Austin N. Relph 

for appellee.

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

Papik, and Freudenberg,

Stacy, 

Carla Montoya was convicted of knowing and intentional 

child abuse resulting in death, in violation of Neb. Rev. 

Stat. § 28-707(1) and (8) (Reissue 2016). She was sentenced 

to prison for a term of 55 to 75 years. Finding no merit to 
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any of her assignments of error, we affirm her conviction 

and sentence.

I. FACTS

At approximately 1 a.m. on March 13, 2016, Montoya 

brought her 41⁄2-year-old daughter, C.H., to the emergency room 

at Faith Regional Health Services (Faith Regional) in Norfolk, 

Nebraska. C.H. was unresponsive, tremoring, and posturing, 

and she had bruising on her body. A CT scan revealed bilateral bleeding between the brain and the skull. C.H. was “lifeflighted” to Children’s Hospital in Omaha, Nebraska, where 

she subsequently died from her injuries. The cause of death 

was blunt force trauma to the head.

1. Police Investi

Shortly after C.H. was brought to the emergency room, 

staff there contacted police to report possible child abuse. The 

police conducted a series of three interviews with Montoya; 

two of those interviews occurred the same day that C.H. was 

taken to Faith Regional, and the third interview occurred the 

next day.

(a) First Interview

When police arrived at Faith Regional, an officer asked to 

speak with Montoya in a private area. They proceeded to a 

family waiting room where the officer questioned Montoya 

about how C.H. had sustained her injuries. This interview, 

which was recorded on the officer’s body microphone, was 

suppressed by the trial court. That suppression ruling has not 

been challenged on appeal.

(b) Second Interview

Shortly after the first interview ended, the lead investigator, 

Josh Bauermeister, arrived at Faith Regional. After C.H. was 

life-flighted to Children’s Hospital in Omaha, Bauermeister 

was introduced to Montoya and told her he wanted “to find out 

a little bit about what happened.” He asked whether Montoya 

would allow police to search and photograph her apartment 
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and whether she would give a recorded interview at the police 

station. Montoya agreed to both requests. Montoya’s boyfriend 

then took officers to the apartment, and Montoya—who did not 

have a car available—rode with Bauermeister to the police station in the front seat of his unmarked patrol car.

The recorded interview occurred in an interview room at the 

police station, and lasted about 1 hour. At the beginning of the 

interview, Bauermeister told Montoya that she was not under 

arrest, that she did not have to speak with him, and that she 

could leave at any time. Bauermeister also explained how to 

leave the police station from the interview room.

During the interview, Montoya explained that around noon 

on March 12, 2016, she became frustrated that C.H. would not 

stay in her bed and would not stop crying, so she squeezed 

C.H.’s torso hard enough to leave marks and then threw C.H. 

onto her bed three times. Montoya said that C.H. struck her 

head on the wall the third time she was thrown. After that, 

C.H. fell asleep around 1 p.m. and slept until around 4 p.m., 

when she woke briefly before falling asleep again. Around 9 

p.m., C.H. began to vomit. Montoya put C.H. into the bathtub 

to wash her off, but C.H. would not stand; Montoya described 

C.H.’s body as “Jell-O.” Montoya said that when she turned on 

the cold water, C.H. became responsive and was able to answer 

questions. Montoya asked C.H. whether her head hurt, and 

C.H. answered yes. Montoya also asked whether C.H. wanted 

ice cream, and C.H. again answered yes.

Montoya and her boyfriend put C.H. in the car to get some 

ice cream. They proceeded to drive several places with C.H., 

including to Montoya’s mother’s house, a grocery store, a 

discount department store, and a fast-food restaurant. When 

they returned home, C.H. was unresponsive. Montoya called a 

friend who convinced her to take C.H. to the hospital.

At the end of the recorded interview, Bauermeister asked 

Montoya to write a statement summarizing her interview, and 

she complied. When Montoya finished writing out her threepage statement, she left the police station.
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Bauermeister subsequently obtained an arrest warrant, and 

Montoya was arrested at Children’s Hospital in Omaha on 

March 14, 2016. She was transported to the downtown Omaha 

police station, where she was interviewed a third time.

(c) Third Interview

Montoya’s third interview was conducted by Bauermeister 

on March 14, 2016, at 1:30 p.m. and lasted 11⁄4 hours. 

Before questioning Montoya, Bauermeister spoke about the 

importance of telling the truth during the interview, saying, 

“Whatever you do today though, don’t lie about it, because if 

you lie about anything or fail to tell me anything, it’s going to 

look really bad for you when you go to court.” Bauermeister 

also advised Montoya of her rights under Miranda v. 

Arizona1 before questioning her. Throughout the interview, 

Bauermeister continued to emphasize the importance of being 

truthful. His statements in that regard are addressed more 

fully in our analysis of Montoya’s assignment of error relating 

to the third interview.

During the third interview, Montoya admitted she slammed 

C.H. into the wall as hard as she could and held her there. 

Montoya explained that she also pushed C.H. against the wall 

three or four times to stop her from getting away, all while 

screaming and yelling at her to “shut up” and to stop crying. 

Montoya said that C.H.’s head slammed into the wall and that 

Montoya pressed C.H. so hard against the wall that she worried 

it would break her ribs. Additionally, Montoya said that when 

she threw C.H. onto her bed, she did it forcefully and C.H. hit 

her head on the bedframe both the first and last time she was 

thrown. Montoya said she did not take C.H. to the hospital 

sooner, because she was afraid what people might think about 

the bruises and because she was in denial about hurting C.H. 

and was hoping she might recover.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966).
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Toward the end of the third interview, Bauermeister asked 

Montoya to write out what happened, and she complied. Her 

written statement tracked generally with her statements to 

police during the interview.

C.H. died from her injuries on March 20, 2016, after which 

the State charged Montoya with knowing and intentional child 

abuse resulting in death, a Class IB felony.2

2. Pretrial Procee

(a) Motions to Suppress

Montoya moved to suppress all of her oral and written 

statements to police. She claimed she was in custody during 

all three interviews and argued her statements should be suppressed, because (1) in the first and second interviews, she was 

not advised of her Miranda rights, and (2) in the second and 

third interviews her will was overborne by coercive interrogation tactics.

After a hearing, the trial court sustained in part and denied 

in part Montoya’s motion to suppress. Regarding the first interview, the trial court sustained the motion to suppress, finding 

Montoya was in custody during police questioning at Faith 

Regional and should have received the Miranda advisement. 

As stated, the State has not challenged the suppression of the 

first interview.

Regarding the second interview, the court found that under 

the totality of the circumstances, Montoya was not in custody and her statements were made freely and voluntarily. 

Regarding the third interview, the trial court found that the 

officer’s interrogation tactics did not amount to improper 

threats, inducements, or lies and that Montoya’s confession 

was freely and voluntarily made. The court thus overruled 

Montoya’s motion to suppress as it regarded both the second 

and third interviews.

2 § 28-707(1) and (8).
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(b) Plea in Abatement

After the court ruled on Montoya’s motion to suppress, 

Montoya was permitted to withdraw her plea of not guilty in 

order to file a plea in abatement challenging the sufficiency of 

the evidence to bind the case over to district court. In support 

of her plea in abatement, Montoya argued the State had not 

offered any evidence that she intended to kill C.H., and she 

suggested that a finding of guilt under § 28-707 requires the 

State to prove the defendant had specific intent to cause the 

resulting harm. The trial court rejected Montoya’s interpretation of § 28-707, reasoning it was inconsistent with the plain 

language of the statute and with settled precedent from both 

this court3 and the Nebraska Court of Appeals.4 The trial court 

found the evidence offered at the preliminary hearing was sufficient to establish probable cause that Montoya committed 

the crime of intentional child abuse resulting in death under 

§ 28-707, and it overruled the plea in abatement.

(c) Motion to Quash

Once the plea in abatement was overruled, Montoya filed 

a motion to quash the information. In support of the motion, 

Montoya argued that unless § 28-707 was construed to require 

proof that she intended to cause the resulting harm to the 

child, the statute would be unconstitutional, both facially and 

as applied. The trial court overruled the motion to quash, 

rejecting all of Montoya’s facial constitutional challenges and 

reserving ruling on the as-applied challenges.

3. Bench Trial and

After Montoya reentered a plea of not guilty, she waived her 

right to a jury and a bench trial was held. Montoya renewed 

her motion to suppress and her constitutional challenges to 

§ 28-707, and the court overruled them. In an order entered 

3 See State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006).

4 See State v. Parks, 5 Neb. App. 814, 565 N.W.2d 734 (1997), reversed on 

other grounds 253 Neb. 939, 573 N.W.2d 453 (1998).
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February 1, 2018, the district court found beyond a reasonable 

doubt that

on March 12, 2016, [Montoya] knowingly and intentionally placed her minor child, [C.H.], in a situation 

that endangered that child’s life, and that [Montoya] did 

knowingly and intentionally cruelly punish this child, 

which ultimately caused and resulted in the death of 

[C.H.] approximately one week later, on March 20, 2016. 

Additionally, the Court specifically finds that this offense 

was not committed negligently, nor did [Montoya] act 

recklessly. Her actions directed against the child . . . 

were intentional.

Montoya was found guilty of intentional child abuse resulting 

in death, a Class IB felony. She was sentenced to an indeterminate prison term of 55 to 75 years. Montoya filed this timely 

appeal, which we moved to our docket.

II. ASSIGNMENTS OF ERROR

Montoya assigns, consolidated and restated, that the trial 

court erred in (1) overruling her motion to suppress, (2) overruling her plea in abatement, (3) overruling her motion to 

quash and rejecting her constitutional challenges, (4) finding 

her guilty of intentional child abuse resulting in death, and (5) 

imposing an excessive sentence.

III. STANDARD 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,

5

 an appellate court applies 

a two-part standard of review.6 Regarding historical facts, an 

appellate court reviews the trial court’s findings for clear error.7

Whether those facts meet constitutional standards, however, is 

5 Miranda, supra note 1.

6 State v. Clifton, 296 Neb. 135, 892 N.W.2d 112 (2017).

7 Id.
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a question of law, which an appellate court reviews independently of the trial court’s determination.8

[2] Statutory interpretation presents a question of law, which 

an appellate court reviews independently of the lower court’s 

determination.9

[3] The constitutionality and construction of statutes are 

questions of law, regarding which appellate courts are obligated to reach conclusions independent of those reached by the 

court below.10

[4] An appellate court will sustain a conviction in a bench 

trial of a criminal case if the properly admitted evidence, 

viewed and construed most favorably to the State, is sufficient 

to support that conviction.11 In making this determination, we 

do not resolve conflicts in the evidence, pass on the credibility 

of witnesses, evaluate explanations, or reweigh the evidence 

presented, which are within a fact finder’s province for disposition.12 Instead, the relevant question is whether, after viewing 

the evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.13

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

within the statutory limits absent an abuse of discretion by the 

trial court.14

IV. ANALYSIS

1. Motion to Suppr

Montoya argues the trial court erred in overruling her 

motion to suppress statements made in the second and third 

8 Id.

9 State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018).

10 See State v. Scott, 284 Neb. 703, 824 N.W.2d 668 (2012).

11 State v. Schuller, 287 Neb. 500, 843 N.W.2d 626 (2014).

12 Id.

13 Id.

14 State v. Leahy, 301 Neb. 228, 917 N.W.2d 895 (2018).
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police interviews. Regarding the second interview, Montoya 

claims her statements should have been suppressed because 

police questioned her without first giving her the Miranda

advisement. Regarding both the second and third interviews, 

Montoya claims her will was overborne by coercive police 

tactics and argues her statements should have been suppressed 

as involuntary. We address each argument in turn.

(a) Miranda Advisement

[6] In Miranda, the U.S. Supreme Court concluded that 

“without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains 

inherently compelling pressures which work to undermine 

the individual’s will to resist and to compel him to speak 

where he would not otherwise do so freely.”15 To combat against these pressures and protect the privilege against 

self-incrimination, Miranda announced a set of prophylactic 

warnings that law enforcement officers must give before 

interrogating someone who is in custody. “Prior to any questioning, the person must be warned that he has a right to 

remain silent, that any statement he does make may be 

used as evidence against him, and that he has a right to 

the presence of an attorney, either retained or appointed.”16

These warnings are considered “prerequisites to the admissibility of any statement made by a defendant” during custodial interrogation.17 But Miranda warnings are required only 

when a suspect interrogated by the police is “in custody.”18

And the fact that a suspect is questioned by police at 

15 Miranda, supra note 1, 384 U.S. at 467.

16 Id., 384 U.S. at 444. Accord, State v. Schriner, 303 Neb. 476, 929 

N.W.2d 514 (2019); State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 

(2014).

17 Miranda, supra note 1, 384 U.S. at 476.

18 Thompson v. Keohane, 516 U.S. 99, 116 S. Ct. 457, 133 L. Ed. 2d 383 

(1995).
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the station house does not necessarily render the questioning custodial.19

[7-9] Both the U.S. Supreme Court and this court have 

emphasized that the ultimate inquiry for determining whether 

a person is “in custody” for purposes of Miranda “‘is simply 

whether there is a formal arrest or restraint on freedom of 

movement of the degree associated with a formal arrest.’”20

The Miranda custody test is to “be determined based on how 

a reasonable person in the suspect’s situation would perceive 

his [or her] circumstances.”21 It is an objective inquiry and 

does not depend on the subjective views harbored by either 

the interrogating officer or the person being interrogated.22

The U.S. Supreme Court has described the Miranda custody 

test as involving two discrete inquiries: “‘first, what were 

the circumstances surrounding the interrogation; and second, 

given those circumstances, would a reasonable person have 

felt he or she was not at liberty to terminate the interrogation 

and leave.’”23

In State v. Rogers,

24 we observed that a “large body of 

case law” had developed to assist courts in identifying which 

circumstances may be most relevant to the Miranda custody 

inquiry. Rogers mentioned eight such circumstances, including: (1) the location of the interrogation and whether it was a 

place where the defendant would normally feel free to leave; 

19 See, e.g., California v. Beheler, 463 U.S. 1121, 103 S. Ct. 3517, 77 L. Ed. 

2d 1275 (1983); Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711, 50 L. 

Ed. 2d 714 (1977).

20 Yarborough v. Alvarado, 541 U.S. 652, 662, 124 S. Ct. 2140, 158 L. Ed. 

2d 938 (2004) (quoting Beheler, supra note 19). Accord In re Interest of 

Tyler F., 276 Neb. 527, 755 N.W.2d 360 (2008).

21 Yarborough, supra note 20, 541 U.S. at 662. Accord In re Interest of Tyler 

F., supra note 20.

22 Yarborough, supra note 20.

23 Id., 541 U.S. at 663 (quoting Thompson, supra note 18).

24 State v. Rogers, 277 Neb. 37, 57, 760 N.W.2d 35, 54 (2009).
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(2) whether the contact with the police was initiated by them 

or by the person interrogated and, if by the police, whether the 

defendant voluntarily agreed to the interview; (3) whether the 

defendant was told he or she was free to terminate the interview and leave at any time; (4) whether there were restrictions 

on the defendant’s freedom of movement during the interrogation; (5) whether neutral parties were present at any time during the interrogation; (6) the duration of the interrogation; (7) 

whether the police verbally dominated the questioning, were 

aggressive, were confrontational, were accusatory, threatened 

the defendant, or used other interrogation techniques to pressure the suspect; and (8) whether the police manifested to the 

defendant a belief that the defendant was culpable and that they 

had the evidence to prove it.25

In Rogers and several other cases analyzing custody under 

Miranda,

26 we also discussed the six “indicia of custody” 

outlined by the Eighth Circuit Court of Appeals in U.S. v. 

Axsom.

27 The Axsom indicia include: (1) whether the suspect 

was informed at the time of questioning that the questioning 

was voluntary, that the suspect was free to leave or request the 

officers to do so, or that the suspect was not considered under 

arrest; (2) whether the suspect possessed unrestrained freedom of movement during questioning; (3) whether the suspect 

initiated contact with authorities or voluntarily acquiesced to 

official requests to respond to questions; (4) whether strongarm tactics or deceptive stratagems were used during questioning; (5) whether the atmosphere of the questioning was police 

dominated; and (6) whether the suspect was placed under arrest 

at the termination of the proceeding.28 The first three Axsom 

25 Rogers, supra note 24.

26 See, id.; State v. McKinney, 273 Neb. 346, 730 N.W.2d 74 (2007); State v. 

Mata, 266 Neb. 668, 668 N.W.2d 448 (2003), abrogated on other grounds, 

Rogers, supra note 24.

27 U.S. v. Axsom, 289 F.3d 496 (8th Cir. 2002).

28 Id.
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indicia are factors which, if present, tend to weigh against a 

finding of custody, and the last three weigh in favor of a finding of custody.29 However, Axsom emphasized that the indicia 

were intended to be representative and not exclusive; a finding 

of custody does not require the factual circumstances of a case 

to present all six indicia.30

In the instant case, Montoya was not given the Miranda

advisement before the second interrogation. In analyzing 

whether Montoya was in custody during that interrogation, the 

district court recited the governing principles outlined above, 

and it expressly analyzed each of the six Axsom indicia before 

concluding, based on a review of all the circumstances surrounding the interrogation, that Montoya was not in custody. 

On appeal, Montoya argues the district court erred when it analyzed custody using the Axsom indicia without also expressly 

addressing the eight circumstances we identified in Rogers. 

She contends this is grounds for reversal. She is incorrect.

Both Rogers and Axsom offer guidance to courts when 

analyzing the circumstances surrounding an interrogation to 

determine whether a reasonable person in those circumstances 

would have believed they were in custody, and both cases 

were decided at a time when the U.S. Supreme Court had not 

expressly identified relevant factors to consider in making the 

Miranda custody determination. But neither Rogers nor Axsom

purported to develop an exclusive test which must be applied 

in every case, and we expressly reject Montoya’s suggestion to 

the contrary.

For the sake of completeness, we note that in 2012, the U.S. 

Supreme Court, in Howes v. Fields,

31 also identified several 

“[r]elevant factors” for courts to consider when examining the 

objective circumstances to determine whether a reasonable 

29 Id.

30 Id.

31 Howes v. Fields, 565 U.S. 499, 509, 132 S. Ct. 1181, 182 L. Ed. 2d 17 

(2012).
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person would have felt he or she was not at liberty to terminate 

the interrogation and leave. These factors include the location 

of the questioning, its duration, statements made during the 

interview, the presence or absence of physical restraints during 

the questioning, and the release of the interviewee at the end 

of the questioning.32

While many appellate courts have developed factors to help 

guide the Miranda custody determination,33 neither the U.S. 

Supreme Court nor this court has developed a single set of factors that courts are required to apply in every case. So while 

the factors identified in Howes, the circumstances summarized 

in Rogers, and the indicia outlined in Axsom all provide guidance, none are meant to be applied mechanically or exclusively 

to determine whether a suspect is in custody for purposes of 

Miranda. We reject Montoya’s argument that the district court 

erred in not expressly considering each circumstance referenced in Rogers.

Here, the district court properly considered the relevant 

circumstances surrounding Montoya’s interrogation and made 

specific factual findings which we review for clear error.34

Among others, the court found that Montoya voluntarily agreed 

to ride with police to the station because she did not have a 

car available. Once Montoya was in the interview room, she 

was expressly told that she was not in custody, that she was 

free to leave at any time, that she was not under arrest, and 

that she would be walking out of the police station after the 

interview. Nothing about the officer’s subsequent questioning 

or conduct nullified these statements. In addition, Montoya 

was instructed by police how to leave the police station from 

the interview room, and during questioning, police did not 

32 Id.

33 See, e.g., U.S. v. Jones, 523 F.3d 1235 (10th Cir. 2008); U.S. v. Swanson, 

341 F.3d 524 (6th Cir. 2003); U.S. v. Hayden, 260 F.3d 1062 (9th Cir. 

2001); U.S. v. Fike, 82 F.3d 1315 (5th Cir. 1996), overruled on other 

grounds, U.S. v. Brown, 161 F.3d 256 (5th Cir. 1998).

34 See Clifton, supra note 6.
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position themselves in a way to prevent her from leaving if 

she wished. Montoya was not handcuffed at any point, and her 

freedom of movement was unrestrained. All of these findings 

pertain to the circumstances surrounding the interrogation, and 

all are supported by the record.

Based on these findings, the district court concluded that 

Montoya voluntarily agreed to an interview at the police station and that a reasonable person in her position would “not 

have necessarily felt compelled to do so.” This is a conclusion of law which an appellate court reviews independently.35

Having done so, we conclude that a reasonable person in 

Montoya’s position would not have felt he or she was not 

at liberty to terminate the interrogation and leave.36 Because 

Montoya was not “in custody” during the second interview, 

no Miranda advisement was required prior to questioning. 

The district court properly denied her motion to suppress 

to the extent it was based on the absence of a Miranda

advisement.

(b) Voluntariness of Montoya’s Statements

With respect to both the second and third interviews, 

Montoya argues that her statements should have been suppressed, because they were not voluntarily made and her will 

was overborne by coercive police tactics.

[10,11] The 5th Amendment to the U.S. Constitution, applicable to state governments by incorporation through the 14th 

Amendment, protects against compelled self-incrimination by 

providing that “[n]o person shall be . . . compelled in any 

criminal case to be a witness against himself . . . .”37 This 

amendment, along with the Due Process Clause of the 14th 

Amendment, prevents the use of involuntary confessions in 

35 Id.

36 Accord, Beheler, supra note 19; Mathiason, supra note 19.

37 U.S. Const. amend. V; State v. Hernandez, 299 Neb. 896, 911 N.W.2d 524 

(2018).
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criminal convictions.38 Although the Miranda rule and the 

requirement that confessions be made voluntarily both arise out 

of the Fifth Amendment, the question of whether a custodial 

interrogation complies with Miranda is distinct from the question of whether statements made during a custodial interrogation were sufficiently voluntary.39

[12,13] The State has the burden to prove that a defendant’s statement was voluntary and not coerced.40 Whether a 

statement was voluntarily given depends on the totality of 

the circumstances.41 Factors to consider include the interrogator’s tactics, the details of the interrogation, and any characteristics of the accused that might cause his or her will to be 

easily overborne.42 While the circumstances surrounding the 

statement and the characteristics of the individual defendant 

at the time of the statement are potentially material considerations, coercive police activity is a necessary predicate 

to the finding that a confession is not voluntary within the 

meaning of the Due Process Clause of the 14th Amendment.43

With this in mind, we consider Montoya’s contention that 

her confessions during the second and third interviews were 

not voluntary.

(i) Second Interview

The district court’s order overruling Montoya’s motion to 

suppress made several factual findings that are relevant to the 

voluntariness inquiry. It found that no “strong-arm tactics” 

or deceptive stratagems were employed and that Montoya 

did not react to the questioning with emotional outbreaks. It 

38 Hernandez, supra note 37.

39 Id.

40 State v. Bormann, 279 Neb. 320, 777 N.W.2d 829 (2010).

41 See, State v. Turner, 288 Neb. 249, 847 N.W.2d 69 (2014); State v. 

McClain, 285 Neb. 537, 827 N.W.2d 814 (2013).

42 McClain, supra note 41.

43 See id.
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found that Bauermeister made no threats or promises during 

the interview and maintained a serious and calm tone throughout. These findings are supported by the record and are not 

clearly erroneous.

Based on these factual findings and our de novo review of 

the record, including the video recording of the second interview, we conclude the statements Montoya made during the 

second interview were voluntary and were not the result of 

police coercion. There was no error in overruling the motion to 

suppress as to the second interview.

(ii) Third Interview

Montoya argues her statements in the third interview were 

not voluntary, because improper inducements were made to 

her by police in the form of either promises of leniency or 

threats of harsher punishment. Some additional factual background is necessary to understand her arguments.

Before questioning Montoya, Bauermeister spoke at length 

about the importance of telling the truth during the interview, 

saying, “Whatever you do today though, don’t lie about it, 

because if you lie about anything or fail to tell me anything, 

it’s going to look really bad for you when you go to court.” 

Bauermeister went on to say:

You can choose not to talk to me and that’s fine, but the 

story I got, and the injuries [C.H.] has, I can prove that 

you had something to do with this. I can prove you are 

responsible for this at this point. Now, if you go into 

court, and you will go to court for this at some point . . 

. . If you go into court, if you stand up there on the stand 

and you say anything that is a lie and I get up there on 

the stand and say that this is what she told me and this 

is a lie and I can prove it because of this, this, and this, 

that’s going to make you look very bad to a judge or a 

jury. So right now what you need to think about is getting 

the truth out and explaining what happened. . . . Don’t 

you think that whoever listens to this story, that I’m 

gonna tell and the prosecutor’s gonna tell, and we lay out 
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the facts of the case, don’t you think they would rather 

hear, would like to hear and don’t you think that they 

would want to work with the person who says I made a 

mistake as opposed to the person who just flat out lies 

or the person who says no I didn’t make a mistake, I’m 

a bad, evil person and I wanted to hurt that child so bad 

that the child might die. I’ll guarantee you that it would 

sound better if it’s just some deal where you just couldn’t 

take it anymore. . . . I would rather have somebody say 

“I made a horrible mistake” and tell me the entire truth 

about what happened as opposed to having someone just 

lie to me, and then later on I will prove that those are lies. 

Don’t you think the person who lies is going to be treated 

. . . I don’t want to say more harshly, but who would you 

want to work with?

Bauermeister then advised Montoya of her Miranda rights and 

began questioning her. Throughout the interview, Bauermeister 

continued to emphasize the importance of being truthful. He 

told Montoya he did not think she was being completely honest, and he commented that judges and juries do not like liars, 

that it would be better for Montoya to tell the truth, and that 

prosecutors and police would be more likely to “work” with 

someone who was truthful.

[14] While the confession of an accused may be involuntary 

and inadmissible if obtained in exchange for a promise of leniency, mere advice or exhortation by the police that it would be 

better for the accused to tell the truth, when unaccompanied by 

either a threat or promise, does not make a subsequent confession involuntary.44 In order to render a statement involuntary, 

any benefit offered to a defendant must be definite and must 

overbear his or her free will.45

The district court found that Bauermeister’s statements during the third interview did not rise to the level of promises 

44 See id.

45 Id.
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of leniency or threats of harsher punishment. After reviewing 

the video recording and considering the totality of the circumstances, we agree. Bauermeister used standard interrogation 

techniques, and nothing about the circumstances of the interrogation or the characteristics and reaction of Montoya suggest 

her will was overborne. On this record, we agree with the district court’s conclusion that Montoya’s statements in the third 

interview, both oral and written, were voluntarily made. The 

trial court did not err in overruling Montoya’s motion to suppress, and her first assignment of error is without merit.

2. Interpreting § 28

Several of Montoya’s remaining assignments of error rise 

and fall on the merits of her statutory interpretation argument, so we consider that argument as a threshold matter. 

Summarized, Montoya argues that to be found guilty of the 

Class IB felony of intentional child abuse resulting in death 

under § 28-707(1) and (8), the State was required to prove not 

only that she knowingly and intentionally committed the crime 

of child abuse, but also that she intended that abuse to result in 

the child’s death. The trial court rejected Montoya’s proposed 

interpretation of § 28-707, and so do we.

[15] Our analysis begins with the plain language of the 

statute. Statutory language is to be given its plain and ordinary 

meaning, and an appellate court will not resort to interpretation 

to ascertain the meaning of statutory words which are plain, 

direct, and unambiguous.46 Section § 28-707 provides in relevant part:

(1) A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a 

minor child to be:

(a) Placed in a situation that endangers his or her life or 

physical or mental health;

(b) Cruelly confined or cruelly punished;

46 State v. Wal, 302 Neb. 308, 923 N.W.2d 367 (2019).
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(c) Deprived of necessary food, clothing, shelter, or 

care;

(d) Placed in a situation to be sexually exploited . . . ;

(e) Placed in a situation to be sexually abused . . . ; or

(f) Placed in a situation to be a trafficking victim . . . .

. . . .

(3) Child abuse is a Class I misdemeanor if the offense 

is committed negligently and does not result in serious 

bodily injury as defined in section 28-109 or death.

(4) Child abuse is a Class IIIA felony if the offense 

is committed knowingly and intentionally and does not 

result in serious bodily injury as defined in section 28-109 

or death.

(5) Child abuse is a Class IIIA felony if the offense is 

committed negligently and results in serious bodily injury 

as defined in section 28-109.

(6) Child abuse is a Class IIA felony if the offense is 

committed negligently and results in the death of such 

child.

(7) Child abuse is a Class II felony if the offense is 

committed knowingly and intentionally and results in 

serious bodily injury as defined in such section.

(8) Child abuse is a Class IB felony if the offense is 

committed knowingly and intentionally and results in the 

death of such child.

In the present case, the district court found that Montoya 

committed the offense of child abuse by placing C.H. in a situation that endangered her life, in violation of § 28-707(1)(a), 

and by cruelly punishing C.H., in violation of § 28-707(1)(b). 

The court expressly found Montoya committed such child 

abuse knowingly and intentionally, and not negligently or 

recklessly.47 And the court found the child abuse resulted 

in the death of C.H. and thus was a Class IB felony under 

§ 28-707(8).

47 See § 28-707(9).
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Montoya does not take issue with the trial court’s conclusion that she knowingly and intentionally committed the 

offense of child abuse as defined in § 28-707(1)(a) and (b). 

Instead, she contends that in order to find her guilty of intentional child abuse resulting in death under § 28-707(1) and 

(8), the trial court also had to find that she had the “intent 

to commit the harm”48 or the “intent to commit the result”49

of the child abuse. In other words, Montoya contends that 

to be found guilty of knowing and intentional child abuse 

resulting in death, the State was required to prove not only 

that she intentionally committed the offense of child abuse, 

but also that she intended the abuse to result in death. As we 

explain below, Montoya’s construction is inconsistent with 

the plain language of the statute and is contrary to this court’s 

case law.

[16] Section 28-707(1) defines the offense of child abuse 

and states that one commits child abuse “if he or she knowingly, intentionally, or negligently causes or permits a minor 

child to be” abused in any of the six ways identified in subsections (a) through (f). Then, § 28-707(3) through (8) classify the level of any such offense based on two factors: the 

actor’s state of mind when committing the offense and the 

degree of harm to the child resulting from the offense.50 But 

neither the plain language of § 28-707 nor our cases interpreting it require the State to prove the defendant intended the 

resulting harm to the child. We said so expressly in State v. 

Molina51 when we observed that “[c]hild abuse resulting in 

death requires proof of the defendant’s intent to commit child 

abuse, as defined in the subsections of § 28-707(1), but it 

does not require proof that the defendant intended to kill the 

minor child.”

48 Brief for appellant at 29.

49 Id. at 23.

50 See State v. Muro, 269 Neb. 703, 695 N.W.2d 425 (2005).

51 Molina, supra note 3, 271 Neb. at 505-06, 713 N.W.2d at 432.
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In Molina, the defendant was convicted of both second 

degree murder and intentional child abuse resulting in death. 

He appealed, arguing his conviction for second degree murder 

should be vacated because it was a lesser-included offense 

of knowing and intentional child abuse resulting in death. 

We applied the Blockburger52 test and disagreed. First, we 

observed that intentional child abuse resulting in death requires 

proof that the death was that of a minor child, which is not 

required to prove second degree murder. We then stated:

[S]econd degree murder also requires proof of an element 

that child abuse resulting in death does not: an intent to 

kill. . . . Child abuse resulting in death requires proof of 

the defendant’s intent to commit child abuse, as defined 

in the subsections of § 28-707(1), but it does not require 

proof that the defendant intended to kill the minor child.

Second degree murder, on the other hand, requires proof 

of an intent to kill.53

Molina therefore held that second degree murder was not a 

lesser-included offense of intentional child abuse resulting 

in death.

Our opinion in State v. Muro54 is also instructive. In that 

case, we explained that under the statutory framework of 

§ 28-707, the proscribed conduct is “exactly the same” whether 

the offense is classified as a felony or a misdemeanor,55 but 

that the classification of the offense will vary depending on 

two factors: the defendant’s state of mind in committing the 

offense and the degree of harm caused by the offense. In 

Muro, the defendant left her infant in the care of another and, 

52 Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 

(1932) (requiring analysis of whether each statute requires proof of fact 

which other does not).

53 Molina, supra note 3, 271 Neb. at 505-06, 713 N.W.2d at 432 (emphasis 

supplied).

54 Muro, supra note 50.

55 Id. at 708, 695 N.W.2d at 429.
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after returning home, she found the child was unresponsive 

and “‘limp, kind of like a rag doll.’”56 The defendant waited 

approximately 4 hours before seeking medical care for the 

child. By the time the child arrived at a hospital, she was not 

breathing, her pupils were fixed and dilated, and she was limp 

and cold. Tests eventually concluded brain death had occurred, 

and the decision was made to discontinue life support. An 

autopsy showed the cause of death was a skull fracture that 

resulted in cerebral edema and ultimately brain death. The 

defendant was convicted of intentional child abuse resulting in death, a Class IB felony, and sentenced to 20 years’ 

imprisonment.

We confirmed the conviction for child abuse, reasoning the 

evidence supported a finding that the defendant knowingly 

and intentionally caused or permitted her child to be deprived 

of necessary medical care, in violation of § 28-707(1)(c). But 

for purposes of classifying the crime, we found the medical evidence was insufficient as a matter of law to establish 

beyond a reasonable doubt that the child’s death was proximately caused by the delay in seeking medical care. Notably, 

we explained that the State’s failure to prove that the child’s 

death resulted from the abuse “d[id] not relieve [the defendant] 

of criminal responsibility”57 for the offense of child abuse, but 

affected only the level of the offense under § 28-707. We thus 

concluded the evidence was “sufficient to sustain a conviction 

for Class IIIA felony child abuse under § 28-707(4) without 

any proof of resulting harm to the child.”58 So, we reclassified the offense from a Class IB felony to a Class IIIA felony 

and remanded the matter for resentencing. Muro illustrates 

that proof of the resulting harm is pertinent to classifying the 

offense of child abuse, but it does not impact criminal responsibility for the offense.

56 Id. at 705, 695 N.W.2d at 427.

57 Id. at 713, 695 N.W.2d at 432.

58 Id. at 713-14, 695 N.W.2d at 432.
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[17] Given the plain language of § 28-707 and our cases 

interpreting and applying it, we reject Montoya’s contention 

that the intent to cause the resulting harm is a necessary element of the offense of child abuse. We hold that to convict a 

defendant of the Class IB felony of knowing and intentional 

child abuse resulting in death under § 28-707, the State must 

prove the defendant knowingly and intentionally caused or 

permitted the child to be abused in one or more of the ways 

defined in § 28-707(1), and also must prove the offense 

resulted in the child’s death, as required by § 28-707(8). It is 

not necessary, however, to prove the defendant intended the 

abuse to result in the child’s death.59

[18] In arguing for a contrary interpretation, Montoya 

presents a number of different arguments which invite this 

court to ignore the statutory requirements established by the 

Legislature, to conflate the statutory provisions defining the 

offense of child abuse60 with the statutory provisions classifying the level of offense for purposes of punishment,61 and to 

read provisions into the statutory language which are not there. 

But it is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and 

plain out of a statute.62 It would add nothing to our jurisprudence to address all of Montoya’s arguments individually. We 

have considered them all and find, without exception, that they 

either are premised on a fundamentally flawed reading of the 

statute or urge a construction which is contrary to the plain and 

unambiguous language of § 28-707 and this court’s opinions 

construing it.

Having addressed the proper interpretation of § 28-707 as a 

threshold matter, we apply that interpretation when considering 

Montoya’s remaining assignments of error.

59 Molina, supra note 3.

60 See § 28-707(1).

61 See § 28-707(3) through (8).

62 State v. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019).
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3. Plea in Abatemen

Sufficiency of E

[19] Montoya’s second assignment of error challenges the 

denial of her plea in abatement and argues the evidence offered 

at her preliminary hearing was insufficient to bind the case 

over. Her fourth assignment of error argues that the State’s 

evidence at trial was insufficient to convict her of intentional 

child abuse resulting in death. We address these assignments 

together, because we have held that “an error in a ruling on 

a plea in abatement challenging whether there was sufficient 

evidence to bind a case over for trial is cured by a subsequent 

finding at trial of guilt beyond a reasonable doubt which is 

supported by sufficient evidence.”63 Consequently, Montoya’s 

second and fourth assignments both turn on whether the evidence at trial was sufficient to convict her of intentional child 

abuse resulting in death.

[20] When a criminal defendant challenges the sufficiency 

of the evidence upon which a conviction is based, the relevant 

question for an appellate court is whether, after viewing the 

evidence in the light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements 

of the crime beyond a reasonable doubt.64 The evidence that 

Montoya knowingly and intentionally committed child abuse 

was overwhelming.

Montoya admitted that on March 12, 2016, she threw 

C.H. against the bed multiple times causing her to hit her 

head on the wall and the bedframe. She admitted slamming 

C.H.’s head into the wall and pressing C.H. against the wall 

so hard she thought the child’s ribs would break. By the time 

Montoya took C.H. to the hospital some 13 hours later, C.H. 

was unresponsive, tremoring, and posturing and had bruising all over her body. Imaging revealed a skull fracture and 

bleeding in the brain, and medical evidence showed the cause 

63 State v. Chauncey, 295 Neb. 453, 464, 890 N.W.2d 453, 462 (2017).

64 State v. Draper, 295 Neb. 88, 886 N.W.2d 266 (2016).
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of C.H.’s death was blunt force trauma to the head. This 

evidence was sufficient to prove that Montoya knowingly 

and intentionally caused C.H. to be placed in a situation that 

endangered her life or physical or mental health, in violation 

of § 28-707(1)(a), and knowingly and intentionally caused 

C.H. to be cruelly punished, in violation of § 28-707(1)(b). 

The evidence was also sufficient to prove that Montoya’s 

offense resulted in C.H.’s death, making it a Class IB felony 

under § 28-707(8).

Montoya does not challenge any of this evidence, but instead 

argues the State offered no evidence that she intended to kill 

C.H. She points specifically to her own statement that she 

never intended to kill C.H. and to the investigating officer’s 

testimony that he “uncovered no evidence suggesting that 

. . . Montoya intended to cause the death of [C.H.].” But 

since intent to cause death is neither an element of the offense 

of child abuse nor a factor in determining the level of such 

offense, Montoya’s argument in that regard is simply immaterial. The evidence at trial was sufficient to support Montoya’s 

conviction for intentional child abuse resulting in death, and 

her arguments to the contrary are meritless.

4. Constitutionality of § 28-7

In her third assignment of error, Montoya argues the district 

court erred in overruling her motion to quash the information and rejecting her constitutional challenges to § 28-707. 

Montoya’s motion to quash alleged that § 28-707(1), (3), 

(6), and (8) violate equal protection, violate due process, and 

are unconstitutionally vague and overbroad both facially and 

as applied.

[21,22] As a preliminary matter, we point out that Montoya 

was convicted of child abuse under § 28-707(1)(a) and (b) and 

(8), but her constitutional challenge purports to extend to other 

portions of the statute as well. Standing to challenge the constitutionality of a statute under the federal or state Constitution 

depends upon whether one is, or is about to be, adversely 
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affected by the language in question.65 To establish standing, 

the contestant must show that as a consequence of the alleged 

unconstitutionality, the contestant is, or is about to be, deprived 

of a protected right.66 Courts will not decide a question concerning the constitutionality of a statute unless such question 

has been raised by a litigant whose interests are adversely 

affected by the questioned statute.67

Montoya can claim to be adversely affected only by the statutory provisions under which she was charged and convicted, 

and we conclude she lacks standing to challenge other portions 

of § 28-707. Furthermore, we limit our analysis to only those 

constitutional arguments specifically discussed in Montoya’s 

appellate briefing.68

Montoya’s appellate briefing focuses on just two of the constitutional claims alleged in her motion to quash. Her primary 

argument is that § 28-707 violates equal protection principles, 

because it “criminalizes the same conduct [but] imposes substantially different penalties for that conduct”69 depending on 

how the crime is classified. She also argues that § 28-707 is 

unconstitutionally vague.

[23-25] In considering these two constitutional challenges, 

we presume § 28-707 to be constitutional and resolve all reasonable doubts in favor of its constitutionality.70 The burden 

to clearly demonstrate that a statute is unconstitutional rests 

upon the party making the claim of unconstitutionality.71 A 

65 State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019).

66 Id.

67 State v. Crowdell, 234 Neb. 469, 451 N.W.2d 695 (1990).

68 See In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018) (absent 

plain error, appellate court considers only those claimed errors specifically 

assigned and argued).

69 Brief for appellant at 26.

70 See State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009).

71 State v. Carpenter, 250 Neb. 427, 551 N.W.2d 518 (1996).
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penal statute must be construed so as to meet constitutional 

requirements if such can reasonably be done.72 Applying these 

principles, we address both of Montoya’s constitutional arguments in turn.

(a) Equal Protection Claim

Montoya argues that under § 28-707, “[t]he penalties are 

disparate” but “the same conduct is at issue,” and she contends that this violates her “right to equal protection under 

Article I, Section 3 of the Nebraska Constitution and the 14th

Amendment to the U.S. Constitution.”73 We have recognized 

that the Nebraska Constitution and the U.S. Constitution have 

identical requirements for equal protection challenges,74 so we 

address her claims together.

Montoya’s equal protection claim is best understood as 

a challenge to the different classifications or gradations of 

offense under § 28-707. She generally argues, through a series 

of hypotheticals, that her criminal conduct was charged as a 

Class IB felony, yet someone else committing the same acts 

of abuse might be charged with and convicted of a lower level 

felony, or even a misdemeanor. She contends this shows a violation of equal protection. We disagree.

As explained earlier, § 28-707 differentiates between levels 

of offense based on two factors: the actor’s state of mind in 

committing the proscribed conduct and the degree of harm 

resulting to the child. Generally speaking, those who commit 

child abuse knowingly and intentionally are subject to a higher 

penalty range than those who commit the crime negligently; 

and, as the degree of harm caused to the child increases, so 

does the penalty range. As a result, depending on the actor’s 

state of mind in committing the offense and the harm caused to 

the child, the same criminal conduct can be classified as either 

72 Id.

73 Brief for appellant at 27.

74 Hibler, supra note 65.
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a Class I misdemeanor,75 a Class IIIA felony,76 a Class IIA 

felony,77 a Class II felony,78 or a Class IB felony.79

Montoya suggests that these classifications offend equal 

protection principles. She suggests the only way to classify 

her offense as a Class IB felony without offending equal 

protection is to read into the statute an “intent to kill” requirement. There are two problems with her argument: We have 

already rejected her statutory interpretation as unsound, and 

she has not presented any argument showing how the classification of crimes under § 28-707 violates the Equal Protection 

Clause.

[26,27] The Equal Protection Clause does not forbid classifications; it simply keeps governmental decisionmakers from 

treating differently persons who are in all relevant respects 

alike.80 When a classification created by state action does 

not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, the Equal 

Protection Clause requires only that the classification rationally 

further a legitimate state interest.81 Montoya does not claim 

that the classification of her crime as a Class IB felony turns on 

a suspect characterization or affects a fundamental right, and 

we have been clear that child abuse is not a constitutionally 

protected activity.82 Accordingly, Montoya’s equal protection 

claim is subject to rational basis review.

[28,29] Under rational basis review, we will uphold a classification created by the Legislature where it has a rational 

75 § 28-707(3).

76 § 28-707(4) and (5).

77 § 28-707(6).

78 § 28-707(7).

79 § 28-707(8).

80 Hibler, supra note 65.

81 Id.

82 State v. Sinica, 220 Neb. 792, 372 N.W.2d 445 (1985).
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means of promoting a legitimate government interest or purpose.83 In other words, the difference in classification need 

only bear some relevance to the purpose for which the difference is made.84 Under the rational basis test, whether an equal 

protection claim challenges a statute or some other government 

act or decision, the burden is upon the challenging party to 

eliminate any reasonably conceivable state of facts that could 

provide a rational basis for the classification.85 Montoya has 

failed to meet this burden.

As it regards her equal protection claim, Montoya’s briefing 

does little more than point out that § 28-707 proscribes the 

same criminal conduct but classifies the level of crime differently depending on certain statutory factors. She does not 

mention or discuss the rational basis test or attempt to apply 

any other level of constitutional scrutiny to the classification 

she challenges. She does not argue, or even imply, that classifying the crime of child abuse as a Class IB felony when it 

is committed intentionally rather than negligently, and when 

it results in the death of the child, somehow fails to rationally 

further a legitimate state interest.

In short, Montoya has failed to present any viable equal 

protection argument related to the classification of her crime 

under § 28-707(8). The district court did not err in rejecting 

her equal protection claim.

(b) Void for Vagueness

Montoya’s motion to quash alleged that § 28-707 was both 

“overbroad and vague” and thus facially invalid. But on appeal, 

she argues only that the statute should be found “facially unconstitutional as violative of the void-for-vagueness doctrine,”86 so 

we confine our analysis accordingly.

83 Rung, supra note 70.

84 Id.

85 Id. See, also, Hibler, supra note 65.

86 Reply brief for appellant at 3.
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[30,31] The void-for-vagueness doctrine requires that a penal 

statute define the criminal offense with sufficient definiteness 

that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and 

discriminatory enforcement.87 The test for standing to assert a 

vagueness challenge is the same whether the challenge asserted 

is facial or as applied.88 Courts consider two things: First, to 

assert a claim of vagueness, a defendant must not have engaged 

in conduct which is clearly prohibited by the questioned statute.89 Furthermore, a defendant cannot maintain that the statute 

is vague when applied to the conduct of others, because a court 

will not examine the vagueness of the law as it might apply to 

the conduct of persons not before the court.90 Montoya fails the 

test for standing under both considerations.

Montoya engaged in conduct that is clearly proscribed by 

§ 28-707 when she abused C.H., and thus lacks standing to 

assert a claim of vagueness.91 She was convicted of violating § 28-707(1)(a) and (b), and this court has previously 

upheld both those statutory provisions against challenges that 

the conduct proscribed therein is unconstitutionally vague or 

overbroad.92

Additionally, the real focus of Montoya’s vagueness argument is not on her crime at all. Instead, she focuses on the 

different criminal classifications of the crime under § 28-707 

and argues the classifications are potentially vague as applied 

to the conduct of others:

Is the situation where a child dies in an accident where 

the defendant was speeding a Class IB, a Class IIA, or a 

87 Scott, supra note 10; Rung, supra note 70.

88 Id.

89 Id.

90 Id.

91 See id.

92 See, State v. Faber, 264 Neb. 198, 647 N.W.2d 67 (2002); Crowdell, supra

note 67; Sinica, supra note 82.
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Class I misdemeanor? Is a shaken-baby case a Class IB 

Felony or a Class IIA Felony? Is the case where the child 

is inadvertently scalded in too hot bath water a Class IIA 

Felony or a Class I misdemeanor? Is a case where very 

young children are left at home and a fire ensues a Class 

IIA Felony or a Class I misdemeanor? The examples 

are endless.93

We conclude that Montoya lacks standing to assert a claim 

that § 28-707 is void for vagueness, because she was engaging in conduct that is clearly proscribed by § 28-707(1)(a) and 

(b) when she abused C.H. Furthermore, she lacks standing to 

assert a claim of vagueness on behalf of others. Montoya’s 

third assignment of error has no merit.

5. Excessive Se

[32,33] In her final assignment of error, Montoya challenges 

her sentence as excessive. She was convicted of a Class IB 

felony, which is punishable by a minimum of 20 years’ imprisonment and a maximum of life imprisonment.94 Montoya was 

sentenced to a term of 55 to 75 years in prison. Absent an 

abuse of discretion by the trial court, an appellate court will 

not disturb a sentence imposed within the statutory limits.95

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.96

[34-36] Where, as here, 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 

93 Reply brief for appellant at 7-8.

94 Neb. Rev. Stat. § 28-105 (Supp. 2015).

95 Leahy, supra note 14.

96 State v. Hunt, 299 Neb. 573, 909 N.W.2d 363 (2018).
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sentence to be imposed.97 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.98 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.99

The record on appeal demonstrates that the trial court considered all of these factors when imposing sentence in this 

case. Montoya nevertheless presents two arguments in support 

of her claim that the sentencing court abused its discretion.

First, she argues that during sentencing, the trial court 

improperly considered the State’s suggestion that a delay in 

providing medical treatment to C.H. was a factor weighing 

in favor of a harsher sentence. Montoya contends this was 

improper because there was no evidence that if she had sought 

treatment more promptly, C.H.’s injuries would have been 

reduced. But when imposing sentence, the trial judge expressly 

told Montoya: “I’m not sentencing you because of the delay. 

Could [earlier treatment] have helped? Nobody will ever know. 

The doctors evidently don’t seem to think so.” The record 

on appeal affirmatively refutes Montoya’s contention that the 

trial court improperly considered the delay in treatment when 

imposing sentence.

Next, Montoya argues the sentence imposed was excessive when compared to sentences imposed in other cases 

which defense counsel brought to the trial court’s attention 

during sentencing. Montoya suggests this was an abuse of 

97 State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).

98 Id.

99 Id.
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discretion, but the record affirmatively refutes such a conclusion. Regarding the other cases that defense counsel mentioned 

during sentencing, the trial judge remarked:

I am aware of the cases . . . which you spoke of, [defense 

counsel]. I’m also aware of a lot of other cases that you 

did not speak of that I researched and looked into and 

that were sentenced significantly greater than what you 

indicated.

. . . The law is different in some instances. Injuries are 

different, circumstances are different.

Montoya’s sentence is well within the statutory limits and 

reflects the serious nature of her crime. The district court properly considered and applied the relevant factors in determining 

an appropriate sentence, and we find no abuse of discretion in 

the sentence imposed.

V. CONCLUSION

Having found no merit to any of Montoya’s assignments of 

error, we affirm the judgment of the district court.

Affirmed