- 657 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

State of Nebraska, appellee, v

Travis T. Mitchell, appellan

___ N.W.2d ___

Filed February 23, 2016. No. A-15-086.

1. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not 

resolve conflicts in the evidence, pass on the credibility of witnesses, or 

reweigh the evidence; such matters are for the finder of fact.

2. Criminal Law: Evidence. In reviewing a sufficiency of the evidence 

claim, 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.

3. Appeal and Error. An alleged error must be both specifically assigned 

and specifically argued in the brief of the party asserting the error to be 

considered by an appellate court.

4. Drunk Driving: Words and Phrases. As used in Neb. Rev. Stat. 

§ 60-6,196 (Reissue 2008), the 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.

5. Police Officers and Sheriffs: Drunk Driving: Witnesses. After sufficient foundation is laid, a law enforcement officer may testify that in 

his or her opinion, a defendant was driving under the influence.

6. Convictions: Drunk Driving: Evidence. Either a law enforcement officer’s observations of a defendant’s intoxicated behavior or the defendant’s poor performance on field sobriety tests constitutes sufficient 

evidence to sustain a conviction of driving while under the influence of 

alcoholic liquor.

7. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial 

is properly granted in a criminal case where an event occurs during the 

Nebraska Supreme Court Online Library

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

04/07/2016 12:11 PM CDT
- 658 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

course of a trial that is of such a nature that its damaging effect cannot 

be removed by proper admonition or instruction to the jury and thus 

prevents a fair trial.

8. Motions for Mistrial: Appeal and Error. The decision whether to 

grant a motion for mistrial will not be disturbed on appeal in the absence 

of an abuse of discretion.

9. Motions for Mistrial: Motions to Strike: Proof: Appeal and Error.

Error cannot ordinarily be predicated on the failure to grant a mistrial if 

an objection or motion to strike the improper material is sustained and 

the jury is admonished to disregard such material. The defendant must 

prove that the alleged error actually prejudiced him or her, rather than 

creating only the possibility of prejudice.

10. Miranda Rights: Appeal and Error. Where the record does not indicate that a defendant received any Miranda warnings before remaining 

silent, an appellate court will treat the silence as occurring pre-Miranda.

11. Miranda Rights: Impeachment. The reading of Miranda rights is the 

key factor in determining whether the government can use a defendant’s 

silence against him or her.

12. Miranda Rights: Impeachment: Due Process. Impeaching a defendant’s version of the crime at trial by utilizing his or her postarrest, 

post-Miranda silence violates due process. In such a case, the implicit 

assurance that silence will carry no penalty renders it unfair to use the 

defendant’s silence against him or her.

13. Miranda Rights: Impeachment. The prosecution may impeach the 

defendant on the stand by utilizing his or her silence occurring after 

arrest where the record does not reflect that he or she had been given 

Miranda warnings at the time.

14. Miranda Rights: Impeachment: Mental Competency. A defendant’s 

postarrest, post-Miranda silence cannot be used as substantive evidence 

to refute the defendant’s insanity defense.

15. Miranda Rights: Impeachment. The State may utilize a defendant’s 

postarrest, pre-Miranda silence as substantive evidence of his or her 

guilt; the giving of Miranda is the key inquiry in determining when the 

State can utilize a defendant’s silence.

16. Sentences. When imposing a sentence, a sentencing judge should consider the defendant’s age, mentality, education and experience, social 

and cultural background, past criminal record, and motivation for the 

offense, as well as the nature of the offense and the violence involved in 

the commission of the crime.

17. 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 the sentencing court abused its discretion in 
- 659 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

considering and applying the relevant factors as well as any applicable 

legal principles in determining the sentence to be imposed.

Appeal from the District Court for Lancaster County: John

A. Colborn, Judge. Affirme

Joseph D. Nigro, Lancaster County Public Defender, 

Christopher Eickholt, and Nathan Sohriakoff for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Moore, Chief Judge, and Irwin and Inbody, Judg

Irwin, Judge

I. INTRODUCTION

Travis T. Mitchell appeals his conviction and sentence for 

driving under the influence (DUI), fourth offense, with refusal 

to submit to a chemical test, and for driving during revocation. 

On appeal, Mitchell argues that there was insufficient evidence 

to support his convictions for DUI with refusal to submit to a 

chemical test and for driving during revocation, that the district 

court erred in overruling his motion for mistrial based on the 

prosecutor’s comment during closing arguments, and that he 

received excessive sentences. We find no merit to Mitchell’s 

assertions on appeal and affirm.

II. BACKGROUND

The events giving rise to this case occurred on June 6, 2014. 

That morning, Mitchell and his mother, Lucille Mitchell, went 

to a home improvement store in Lincoln, Nebraska, to purchase supplies to build a dog house. Lucille drove the pair 

in a beige sport utility vehicle (SUV). On the way to the 

home improvement store, Mitchell asked Lucille to stop at a 

nearby liquor store. Lucille stopped at the store, and Mitchell 

purchased beer and a bottle of liquor. Mitchell drank a “sip 

of each” before he and Lucille went into the home improvement store.
- 660 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

At the home improvement store, Lucille and Mitchell purchased lumber and other building materials. In the parking lot, 

a store employee began tying the lumber on top of the vehicle, 

but Mitchell became impatient and drove off in the SUV, leaving Lucille behind in the parking lot. Lucille was worried that 

Mitchell might hurt himself or another driver, so she notified 

the police that Mitchell had driven off in the SUV.

After Lucille called the police, the police dispatcher notified officers patrolling the area that Mitchell had been reported 

driving a beige SUV dangerously. Officer James Quandt of the 

Lincoln Police Department was stopped at a red light when he 

observed a man he believed to be Mitchell driving a vehicle 

matching the description of the beige SUV. Officer Quandt 

was able to confirm the driver was Mitchell after matching 

his appearance to a photograph on his in-car computer system. Officer Quandt also determined that Mitchell’s driver’s 

license was revoked. Officer Quandt followed Mitchell from a 

distance. Officer Quandt observed Mitchell accelerate, change 

lanes a few times, and run a red light. Officer Quandt eventually lost sight of Mitchell’s vehicle.

Shortly after Officer Quandt observed Mitchell driving, 

Officer Sarah Williams of the Lincoln Police Department spotted a vehicle matching the SUV’s description. The driver 

resembled a photograph of Mitchell that Officer Williams was 

able to view on her in-car computer system. Officer Williams 

followed Mitchell and observed him driving erratically, including speeding more than 15 miles per hour over the speed limit 

and passing other cars in the center turn lane. Like Officer 

Quandt, Officer Williams lost sight of the SUV.

After Officer Quandt had lost sight of Mitchell’s vehicle, he 

had radioed other officers to notify them that Mitchell might be 

driving to a nearby address where Mitchell and Lucille lived. 

Officer Joseph Keiser of the Lincoln Police Department was 

near the area and arrived at Mitchell’s house before Mitchell 

did. Officer Keiser positioned himself in a nearby alleyway 

and then observed Mitchell pull into the driveway of the house 
- 661 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

at a high rate of speed. When Mitchell pulled into the driveway, he drove over the grass, leaving tire marks.

After Mitchell had parked in the driveway, Officer Keiser 

approached the SUV and instructed Mitchell several times to 

exit the vehicle. Mitchell did not comply with the instructions. 

Eventually, Officer Keiser physically removed Mitchell from 

the SUV and handcuffed him.

After Mitchell was removed from the SUV, officers located 

an alcohol container in its center console and a paper bag containing alcohol on its passenger’s side floor. In total, officers 

located one partially empty container of hard liquor without a 

lid and five beer cans, at least one of which was open.

Officer Quandt, the officer who had previously observed 

Mitchell run a red light, arrived at Mitchell’s house and 

transported Mitchell to the Lancaster County Jail. At the jail, 

Mitchell became aggressive and refused to submit to a breath 

test. Mitchell was charged both with DUI with refusal to submit to a chemical test and with driving during revocation.

The case proceeded to trial on December 1, 2014. At the 

trial, Lucille testified that Mitchell suffers from mental health 

problems. According to Lucille, the symptoms of Mitchell’s 

mental health issues resemble the behaviors he displays when 

he is intoxicated. Lucille testified that on the morning of June 

6, Mitchell was displaying behaviors that could have been consistent with him being intoxicated, including being agitated, 

making poor choices, and being impatient. Lucille also testified 

that she smelled alcohol on Mitchell’s clothes.

The police officers involved in following and arresting 

Mitchell also testified at the trial. Officer Williams testified 

that she was trained in DUI investigations. Officer Williams 

further testified that she observed Mitchell driving erratically 

and that in her opinion, Mitchell’s driving was unsafe and consistent with the behavior of a person who was under the influence. Officer Keiser testified that the manner in which Mitchell 

drove into the driveway was unsafe. Officer Keiser further 

testified that Mitchell smelled of alcohol and was generally 
- 662 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

confused. Officer Keiser stated that he had experience dealing 

with drunk individuals and that in his opinion, Mitchell was 

under the influence of alcohol.

The State also called Officer Quandt to the stand. Officer 

Quandt testified that he had extensive DUI training. Officer 

Quandt opined that Mitchell was under the influence of alcohol 

and unable to safely operate a vehicle on the day in question. 

In support of his opinion that Mitchell was intoxicated, Officer 

Quandt noted that Mitchell had a hard time balancing, staggered, could not walk in a straight line, smelled of alcohol, 

slurred his speech, and had bloodshot eyes.

The jury found Mitchell guilty of DUI with refusal to 

submit to a chemical test and of driving during revocation. 

After the verdicts, the court held an enhancement hearing and 

determined that the State had proven Mitchell had three prior 

DUI convictions. Consequently, the court sentenced Mitchell 

to 5 to 10 years’ imprisonment for fourth-offense DUI with 

refusal to submit to a chemical test and revoked his driving 

privileges and driver’s license for 15 years. The court also 

sentenced Mitchell to 1 to 2 years’ imprisonment and revoked 

his driving privileges and driver’s license for 15 years for driving during revocation. The court ordered that the sentences be 

served concurrently to one another and consecutively to any 

other sentences previously imposed. Mitchell appeals from his 

convictions and sentences. Additional facts will be discussed, 

as necessary, in the analysis section of this opinion.

III. ASSIGNMENTS OF ERROR

On appeal, Mitchell assigns three errors. First, Mitchell 

asserts there was insufficient evidence to support his convictions for DUI with refusal to submit to a chemical test and for 

driving during revocation. Second, Mitchell claims the district 

court erred when it overruled his motion for mistrial based 

on the prosecutor’s comment during closing argument that 

Mitchell did not deny being intoxicated. Third, Mitchell asserts 

that he received excessive sentences.
- 663 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

IV. ANALYSIS

1. Sufficiency of Evide

Mitchell argues that there was insufficient evidence to support his convictions for DUI with refusal to submit to a chemical test and for driving during revocation. Mitchell asserts 

that the only evidence regarding his intoxication “was simply 

anecdotal evidence from an officer or two as to the officer’s 

opinion.” Brief for appellant at 15. We find no merit to this 

assignment of error.

[1,2] In reviewing a sufficiency of the evidence claim, 

whether the evidence is direct, circumstantial, or a combination 

thereof, the standard is the same: An appellate court does not 

resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder 

of fact. State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015). 

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. State v. McClain, 285 Neb. 537, 

827 N.W.2d 814 (2013).

[3] First, we note that Mitchell assigns as error the sufficiency of the evidence to support both his DUI and his driving 

during revocation convictions. However, Mitchell makes no 

argument with respect to sufficiency of the evidence for driving during revocation. An alleged error must be both specifically assigned and specifically argued in the brief of the party 

asserting the error to be considered by an appellate court. 

State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015). Because 

Mitchell fails to specifically argue the sufficiency of the evidence to support his conviction for driving during revocation, 

we do not address that assignment of error.

[4-6] Next, we turn to Mitchell’s assertion that the evidence 

was insufficient to convict him of DUI with refusal to submit to 

a chemical test. As used in Neb. Rev. Stat. § 60-6,196 (Reissue 

2008), the phrase “under the influence of alcoholic liquor or 
- 664 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

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. Daly, 278 Neb. 903, 775 N.W.2d 47 (2009). 

After sufficient foundation is laid, a law enforcement officer 

may testify that in his or her opinion, a defendant was driving 

under the influence. State v. Baue, 258 Neb. 968, 607 N.W.2d 

191 (2000). Either a law enforcement officer’s observations of 

a defendant’s intoxicated behavior or the defendant’s poor performance on field sobriety tests constitutes sufficient evidence 

to sustain a conviction of driving while under the influence of 

alcoholic liquor. State v. Falcon, 260 Neb. 119, 615 N.W.2d 

436 (2000).

In the case at hand, the State laid foundation for various 

police officers to testify regarding their opinion that Mitchell 

was under the influence. See Baue, supra. Officer Williams 

testified that she was trained in DUI investigations and that 

she had observed Mitchell driving erratically. Officer Williams 

provided her opinion that Mitchell’s unsafe driving was consistent with the behavior of a person driving under the influence. Similarly, Officer Keiser testified that he had experience in dealing with intoxicated individuals and that, in his 

opinion, Mitchell was under the influence of alcohol. Officer 

Quandt also testified that he had extensive DUI training. 

Officer Quandt testified that Mitchell had difficulty balancing, 

smelled of alcohol, slurred his speech, and had bloodshot eyes. 

Officer Quandt opined that due to Mitchell’s having ingested 

alcohol, “I don’t feel he was safe to operate a motor vehicle 

at that time.” Lastly, Officer Quandt testified that Mitchell 

refused to submit to a chemical test after he was transported 

to the jail. This evidence, viewed in the light most favorable 

to the State, was sufficient for a rational jury to find Mitchell 

guilty beyond a reasonable doubt of DUI with refusal to submit to a chemical test. There is no merit to Mitchell’s assignment of error.
- 665 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

2. Motion for Mistrial

Mitchell argues that the trial court erred when it did not 

grant a mistrial based on the prosecutor’s stating in closing argument that Mitchell never denied being intoxicated. 

Mitchell argues the comment “is a violation of [Mitchell’s] 

right[] to remain silent, his right to a fair trial, and is inconsistent with the requirement that the [S]tate has the burden of 

proof.” Brief for appellant at 16. We find this assignment of 

error to be without merit.

[7,8] A mistrial is properly granted in a criminal case where 

an event occurs during the course of a trial that is of such a 

nature that its damaging effect cannot be removed by proper 

admonition or instruction to the jury and thus prevents a fair 

trial. State v. Dixon, 282 Neb. 274, 802 N.W.2d 866 (2011). 

The decision whether to grant a motion for mistrial will not be 

disturbed on appeal in the absence of an abuse of discretion.

Daly, supra.

[9] Additionally, error cannot ordinarily be predicated on the 

failure to grant a mistrial if an objection or motion to strike the 

improper material is sustained and the jury is admonished to 

disregard such material. State v. Robinson, 271 Neb. 698, 715 

N.W.2d 531 (2006). The defendant must prove that the alleged 

error actually prejudiced him or her, rather than creating only 

the possibility of prejudice. Id.

At the trial, Officer Quandt testified that he transported 

Mitchell to the jail after Mitchell was apprehended in his 

driveway. According to Officer Quandt, Mitchell was under 

arrest at the time he was transported. Officer Quandt testified 

that Mitchell made voluntary statements regarding his arrest 

during the ride to the jail. The State played for the jury an 

audio recording of the trip to the jail. In the recording, Mitchell 

repeatedly argues that he should not be under arrest because 

police did not catch him driving.

During closing arguments, the prosecutor made the following statement regarding the audio recording of Mitchell and 

Officer Quandt in the squad car:
- 666 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

Now, interesting, if you recall the audio, and that will 

go back with you and if you want to listen to it, you can 

listen to it again. He never says, . . . Mitchell never says, 

I’m not drunk. I wasn’t drinking. Why are you arresting 

me for [DUI], I’m not drunk. What he says is, “You didn’t 

catch me driving. You didn’t arrest me in my truck.” And 

later, “You didn’t breathalyze me in my car.” Never once 

does he say he’s not drunk. It’s all about where you got 

me. He never denied that he’s drunk, he never denied 

that he —

At that point in the closing argument, Mitchell objected. 

In a sidebar conference, Mitchell’s attorney explained that 

his objection was based on the fact that “Mitchell does not 

have to deny anything. He does not have to prove anything.” 

Mitchell argued the prosecutor’s statement referred to facts not 

in evidence and that it implied that “[Mitchell’s] got some sort 

of burden because he failed to deny that he was intoxicated.” 

Mitchell asked for a mistrial or, in the alternative, that the jury 

be ordered to disregard the prosecutor’s comment.

In response to Mitchell’s objection, the court stated that 

“there is some case law that talks about pre-arrest silence, 

which is in essence what you’re arguing, his silence, that is, 

he didn’t deny it, he didn’t say this, he didn’t say that.” The 

court went on to note that Mitchell’s silence occurred after 

he had been arrested. Mitchell’s attorney again moved for a 

mistrial, arguing the comment was “unfair and prejudicial 

and improper.” The court overruled the motion for mistrial, 

but granted the alternative motion to strike the comment and 

instruct the jury. The court told the jury, “I am going to instruct 

the jury to disregard [the prosecutor’s] comments about what 

. . . Mitchell may or may not have denied. So you are instructed 

to disregard those comments and not consider them.”

After the parties’ closing arguments, the court read the jury 

instructions aloud and submitted a copy to the jury for their 

reference. The jury instructions stated, in relevant part, “The 

burden of proof is always on the State to prove beyond a 
- 667 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

reasonable doubt the material elements of the crime charged 

and this burden never shifts.”

As a preliminary matter, we note that the State argues 

Mitchell failed to preserve error on this issue because he did 

not object to a violation of his right to remain silent at the 

trial. During the closing argument, Mitchell objected that he 

“d[id] not have to deny anything.” The trial court understood 

Mitchell’s objection to be based on the right to remain silent 

as indicated by its statement that “there is some case law that 

talks about pre-arrest silence, which is in essence what you’re 

arguing, his silence, . . . he didn’t deny it.” After this comment by the court, Mitchell again moved for a mistrial, arguing that the prosecutor’s comment was “unfair and prejudicial 

and improper.” We find this record demonstrates Mitchell’s 

objection implicated the right to remain silent and preserved 

the issue for appeal.

[10] Next, the parties state that Mitchell had not been read 

his Miranda rights at the time the silence in question occurred. 

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

Ed. 2d 694 (1966). However, the parties do not provide us 

a citation to the record for this factual assertion, nor could 

we locate evidence in the bill of exceptions reflecting when 

Mitchell was read his Miranda rights. The situation is similar 

to that in State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011). 

In Huff, the defendant argued that officers had improperly 

commented on his invocation of the right to remain silent. 

It was not apparent from the record, however, whether the 

defendant was advised of his Miranda rights at the time. 

The court “treated the defendant’s silence as pre-Miranda

[because] the record did not indicate that he had received 

any Miranda warnings.” Huff, 282 Neb. at 112, 802 N.W.2d 

at 104. In the present case, the record does not reflect when 

Mitchell received Miranda warnings and we will therefore 

treat Mitchell’s silence as occurring pre-Miranda.

[11,12] In a series of cases, the U.S. Supreme Court has 

repeatedly indicated that reading a defendant his or her 
- 668 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

Miranda rights is the key factor in determining whether the 

government can use a defendant’s silence. In Doyle v. Ohio, 

426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976), the 

Court held that it violated due process to allow the government to impeach a defendant’s version of the crime given at 

trial by utilizing his or her postarrest, post-Miranda silence. 

The Court stated:

[W]hile it is true that the Miranda warnings contain no 

express assurance that silence will carry no penalty, such 

assurance is implicit to any person who receives the 

warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the 

arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Doyle, 426 U.S. at 618.

[13,14] Employing similar reasoning, the U.S. Supreme 

Court in Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. 

Ed. 2d 490 (1982), again treated the giving of Miranda warnings as the point after which the government could not use a 

defendant’s silence against him. The Fletcher Court held that 

the government was permitted to impeach the defendant on the 

stand by utilizing his silence after arrest because the record did 

not reflect that he been read his Miranda warnings at the time. 

Lastly, in Wainwright v. Greenfield, 474 U.S. 284, 106 S. Ct. 

634, 88 L. Ed. 2d 623 (1986), the Supreme Court held that the 

government could not use a defendant’s postarrest silence as 

substantive evidence to refute the defendant’s insanity defense 

because the silence had occurred post-Miranda.

The Nebraska Supreme Court followed the Doyle line of 

cases, starting in State v. Lofquest, 223 Neb. 87, 388 N.W.2d 

115 (1986). In Lofquest, the court remanded the postconviction action for an evidentiary hearing to determine whether 

the prosecutor’s cross-examination of the defendant by means 

of his refusal to speak referred to pre- or post-Miranda

silence. The court noted that per Doyle and Fletcher, the 

giving of Miranda warnings is the point in time after which 
- 669 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

impeachment use of a defendant’s silence violates due process. Lofquest, supra.

Next, in State v. Harms, 263 Neb. 814, 643 N.W.2d 359 

(2002), the court addressed the defendant’s contention that the 

State should not be permitted to use his silence as substantive 

evidence of sanity in order to refute his insanity defense. The 

case differed from Lofquest because the defendant in Harms

did not testify at the trial and so the State did not desire to use 

his silence to impeach him, but, rather, to prove his sanity. The 

Harms court relied on the reasoning of Doyle to conclude that 

the silence of the defendant, after being arrested and receiving 

Miranda warnings, could not be used against him to refute his 

claim of insanity. However, the court concluded that the State 

could utilize the silence of the defendant in Harms before 

being arrested and read his Miranda rights. As in Lofquest, the 

Harms court relied on the line of cases stemming from Doyle, 

which treated the giving of Miranda warnings as the key point 

in time after which the government was not permitted to utilize 

the defendant’s silence. See, also, State v. Custer, 292 Neb. 

88, 871 N.W.2d 243 (2015) (determining that prosecutor’s 

comment on defendant’s prearrest, pre-Miranda silence was 

permissible because prior cases have viewed giving Miranda

warnings as triggering event that prevents State from using 

defendant’s silence).

However, these cases do not directly govern the issue presented in Mitchell’s case. In Lofquest, supra, the silence was 

used to impeach the defendant; in the present case, the prosecutor’s comment utilized Mitchell’s silence as evidence of 

his guilt. Likewise, in Harms, supra, the silence in question 

occurred before the defendant was arrested and before he had 

been read his Miranda rights, whereas in the case at hand, 

Mitchell had not yet been read his Miranda rights at the time 

of his silence even though he was under arrest. The question of 

whether a defendant’s postarrest but pre-Miranda silence can 

be used as substantive evidence of his or her guilt has not been 

addressed by any of the previously discussed cases.
- 670 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

The Eighth Circuit Court of Appeals, however, has analyzed 

the issue of postarrest, pre-Miranda silence used as substantive 

evidence. In U.S. v. Frazier, 408 F.3d 1102 (8th Cir. 2005), the 

government utilized the defendant’s postarrest, pre-Miranda

silence as substantive evidence of guilt in its case in chief. 

The Eighth Circuit stated that “[a]lthough [the defendant] 

was under arrest, there was no governmental action at that 

point inducing his silence,” since he had not yet been read 

his Miranda rights. Frazier, 408 F.3d at 1111. The Frazier

court therefore concluded that the government could utilize 

the defendant’s postarrest, pre-Miranda silence as substantive 

evidence of his guilt.

We agree with the reasoning of the Eighth Circuit. The 

Nebraska Supreme Court made it clear in Lofquest and Harms

that the giving of Miranda warnings—not the fact of being 

under arrest—is the key inquiry in determining when the State 

can utilize a defendant’s silence. See, State v. Harms, 263 

Neb. 814, 643 N.W.2d 359 (2002); State v. Lofquest, 223 Neb. 

87, 388 N.W.2d 115 (1986). Before the giving of Miranda

warnings, there is no state action inducing the defendant to 

remain silent. See Frazier, supra. This logic applies equally to 

impeachment use of silence as to the use of silence as substantive evidence of a defendant’s guilt.

[15] In the present case, we presume Mitchell had not yet 

been given his Miranda warnings at the time he remained 

silent. See State v. Huff, 282 Neb. 78, 802 N.W.2d 77 (2011). 

Because his silence occurred pre-Miranda, the prosecutor’s 

comment utilizing Mitchell’s silence as evidence of his guilt 

was not improper.

Mitchell also argues the prosecutor’s comment improperly 

implied that Mitchell had a burden to disprove the charges 

against him. However, the trial court instructed the jury to disregard the prosecutor’s comment about what Mitchell did not 

deny. Furthermore, the jury instructions correctly stated that 

the burden to prove the alleged crimes beyond a reasonable 

doubt rested on the State. In light of the court’s admonishing 
- 671 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

the jury to disregard the comment and properly instructing 

the jury, Mitchell has not demonstrated that he suffered actual 

prejudice as a result of the trial court’s denial of his motion 

for mistrial. See State v. Robinson, 271 Neb. 698, 715 N.W.2d 

531 (2006).

We conclude the trial court did not abuse its discretion in 

refusing to grant a mistrial.

3. Excessive Sentenc

Mitchell argues that the sentences he received were excessive. Mitchell asserts that the trial court did not give proper 

weight to his mental health issues and instead focused solely 

on his criminal history. We disagree.

[16,17] When imposing a sentence, a sentencing judge 

should consider the defendant’s age, mentality, education 

and experience, social and cultural background, past criminal 

record, and motivation for the offense, as well as the nature 

of the offense and the violence involved in the commission 

of the crime. State v. Howard, 282 Neb. 352, 803 N.W.2d 450 

(2011). Where a sentence imposed within the statutory limits 

is alleged on appeal to be excessive, the appellate court must 

determine whether the sentencing court abused its discretion 

in considering and applying the relevant factors as well as 

any applicable legal principles in determining the sentence 

to be imposed. State v. Dixon, 286 Neb. 334, 837 N.W.2d 

496 (2013).

Mitchell was sentenced to 5 to 10 years’ imprisonment, and 

his driving privileges and driver’s license were revoked for 

15 years for fourth-offense DUI, a Class III felony. See Neb. 

Rev. Stat. § 60-6,197.03(8) (Cum. Supp. 2014). Mitchell’s sentence is within the statutory range. See, id. (stating that person 

convicted of fourth-offense DUI shall have his or her license 

revoked for 15 years); Neb. Rev. Stat. § 28-105 (Cum. Supp. 

2014) (providing sentencing range for Class III felonies of 1 

to 20 years’ imprisonment). Mitchell was sentenced to 1 to 2 

years’ imprisonment, and his driving privileges and driver’s 
- 672 -

Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

STATE v. MITCHELL

Cite as 23 Neb. App. 657

license were revoked for 15 years for driving during revocation. Mitchell’s sentence for driving during revocation is also 

within the statutory limits. See, Neb. Rev. Stat. § 60-6,197.06 

(Reissue 2010) (stating that driving during revocation is 

Class IV felony and that person convicted of driving during 

revocation shall have his or her license revoked for 15 years); 

§ 28-105 (stating that sentencing range for Class IV felony is 

0 to 5 years’ imprisonment).

In the present case, the court stated at the sentencing hearing that it was taking into account “the nature and circumstances of the crimes, and history, character and condition 

of [Mitchell].” The court indicated that it had considered a 

letter from Mitchell’s attorney that stated Mitchell suffered 

from schizophrenia, depression, and anxiety. The court stated, 

however, that it could not “ignore the serious nature of this 

crime and all of the surrounding facts and circumstances.” 

The court noted Mitchell’s extensive criminal history and the 

need to protect the public. The court concluded that “imprisonment [was] necessary for the protection of the public, because 

the risk [was] substantial that during any period of probation, 

[Mitchell] would engage in additional criminal conduct, and 

because a lesser sentence would depreciate the seriousness of 

the . . . crimes.” We cannot find an abuse of discretion in the 

sentences imposed in this case.

V. CONCLUSION

We find no merit to Mitchell’s assertions of error on appeal. 

We affirm.

Affirm