State v. Huff

means, of course, that not all of Union Pacific’s opposition to
Manuela’s motion to compel was substantially unjustified.101
In other words, even if some of Union Pacific’s conduct was
an “abuse” of the civil discovery procedures, not all of it was.
Given that finding, the district court did not abuse its discretion
in reducing the attorney fees that Manuela requested for the
hearing on her motion to compel.
IV. ConClUsIon
For the foregoing reasons, we conclude that the district
court erred in dismissing Manuela’s wrongful death claim. As
to that claim, the court’s judgment is reversed, and the cause
remanded for further proceedings consistent with this opinion.
But we conclude that the court correctly entered summary judg-
ment against Manuela’s fiduciary duty claim, and we affirm the
court’s judgment in that respect. We affirm the protective order
and award of attorney fees. And finally, we neither affirm nor
reverse the court’s rulings on Manuela’s motions to compel;
instead, we direct the court upon remand to revisit any discov-
ery issues that the parties continue to dispute.
A ffirmed in pArt, reversed And remAnded
in pArt for further proceedings , And
in pArt remAnded with directions.
stAte of nebrAskA, Appellee , v.
herchel hArold huff, AppellAnt.
802 n.W.2d 77
Filed August 26, 2011. 	no. s-10-562.
1. Double Jeopardy: Lesser-Included Offenses: Appeal and Error. Whether two
provisions are the same offense for double jeopardy purposes presents a ques-
tion of law, on which an appellate court reaches a conclusion independent of the
court below.
2. Double Jeopardy. The Double Jeopardy Clauses of both the federal and the
nebraska Constitutions protect against three distinct abuses: (1) a second pros-
ecution for the same offense after acquittal, (2) a second prosecution for the same
offense after conviction, and (3) multiple punishments for the same offense.
101 see Greenwalt, supra note 99.
78 	282 neBrAskA rePorTs
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

3. Double Jeopardy: Proof. Under Blockburger v. United States, 284 U.s. 299, 52
s. Ct. 180, 76 l. ed. 306 (1932), where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or one is whether each provision requires proof of
a fact which the other does not.
4. Double Jeopardy: Sentences: Proof. The Blockburger v. United States, 284 U.s.
299, 52 s. Ct. 180, 76 l. ed. 306 (1932), or “same elements,” test asks whether
each offense contains an element not contained in the other, or, more precisely,
whether each provision requires proof of a fact which the other does not. If not,
they are the same offense and double jeopardy bars additional punishment. If
so, they are not the same offense and double jeopardy is not a bar to additional
punishment.
5. Constitutional Law: Criminal Law: Statutes. The test of Blockburger v. United
States, 284 U.s. 299, 52 s. Ct. 180, 76 l. ed. 306 (1932), is an aid to statutory
interpretation, not a constitutional demand.
6. Criminal Law: Statutes. For purposes of Blockburger v. United States, 284 U.s.
299, 52 s. Ct. 180, 76 l. ed. 306 (1932), the possible predicates of a compound
offense should not be incorporated into the offense when determining whether it
contains elements that another statute does not.
7. Homicide: Motor Vehicles: Lesser-Included Offenses. Under Blockburger v.
United States, 284 U.s. 299, 52 s. Ct. 180, 76 l. ed. 306 (1932), unlawful act
manslaughter is a lesser-included offense of motor vehicle homicide.
8. Double Jeopardy: Legislature: Statutes: Trial: Sentences. Where a legislature
specifically authorizes cumulative punishment under two statutes, regardless
of whether those two statutes proscribe the same conduct under Blockburger v.
United States, 284 U.s. 299, 52 s. Ct. 180, 76 l. ed. 306 (1932), cumulative
punishment may be imposed in a single trial.
9. Sentences: Presumptions. The collateral consequences of a second conviction
make it as presumptively impermissible to impose as it would be to impose any
other unauthorized cumulative sentence.
10. Appeal and Error. Matters previously addressed in an appellate court are not
reconsidered unless the petitioner presents materially and substantially differ-
ent facts.
11. ____. Under the law-of-the-case doctrine, the holdings of an appellate court on
questions presented to it in reviewing proceedings of the trial court become the
law of the case; those holdings conclusively settle, for purposes of that litigation,
all matters ruled upon, either expressly or by necessary implication.
12. Actions: Appeal and Error. The law-of-the-case doctrine operates to preclude
a reconsideration of substantially similar, if not identical, issues at successive
stages of the same suit.
13. Lesser-Included Offenses: Proof. A “lesser offense” is the one for which fewer
elements are required to be proved. A court focuses on the elements of the
offenses, and not comparison of the penalties.
14. Lesser-Included Offenses: Convictions. When a defendant is convicted of both
a greater and a lesser-included offense, the conviction and sentence on the lesser
charge must be vacated.
15. Motions to Suppress: Investigative Stops: Warrantless Searches: Probable
Cause: Judgments: Appeal and Error. A trial court’s ruling on a motion to
sTATe v. hUFF 	79
Cite as 282 neb. 78

suppress evidence, apart from determinations of reasonable suspicion to conduct
investigatory stops and probable cause to perform warrantless searches, is to be
upheld on appeal unless its findings of fact are clearly erroneous.
16. Drunk Driving: Blood, Breath, and Urine Tests: Police Officers and Sheriffs:
Probable Cause: Arrests. If a law enforcement officer has probable cause to
arrest a suspect for driving under the influence of alcohol and reasonable grounds
to believe that the suspect committed driving under the influence of alcohol, the
officer may arrest the suspect and require a blood test notwithstanding the fact
that a preliminary breath test was not administered.
17. Police Officers and Sheriffs: Probable Cause: Arrests. Under the collective
knowledge doctrine, the existence of probable cause justifying a warrantless
arrest is tested by the collective information possessed by all the officers engaged
in a common investigation.
18. Statutes: Appeal and Error. statutory interpretation is a question of law on
which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
19. Prior Convictions: Drunk Driving: Blood, Breath, and Urine Tests: Sentences:
Words and Phrases. A “prior conviction” for purposes of enhancing a convic-
tion for driving under the influence is defined in terms of other driving under the
influence laws, while a “prior conviction” for purposes of enhancing a conviction
for refusing a chemical test is defined in terms of refusal laws. There is no cross-
over between driving under the influence and refusal convictions for purposes of
sentence enhancement.
20. Statutes: Legislature: Appeal and Error. In reading a statute, a court must
determine and give effect to the purpose and intent of the legislature as ascer-
tained from the entire language of the statute considered in its plain, ordinary, and
popular sense.
21. Criminal Law: Statutes. A fundamental principle of statutory construction
requires that penal statutes be strictly construed.
22. Motions for Mistrial: Appeal and Error. The decision whether to grant a
motion for mistrial is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.
23. Constitutional Law: Miranda Rights: Appeal and Error. requests for counsel,
as well as actual silence, constitute “silence” for purposes of analyzing poten-
tial violations of Doyle v. Ohio, 426 U.s. 610, 96 s. Ct. 2240, 49 l. ed. 2d
91 (1976).
24. Constitutional Law: Miranda Rights: Arrests. The state’s impeachment use
of a defendant’s pre-Miranda silence, whether prearrest or postarrest, is not
unconstitutional.
25. Trial: Evidence. only evidence tending to suggest a decision on an improper
basis is unfairly prejudicial.
26. Rules of Evidence: Appeal and Error. The exercise of judicial discretion is
implicit in determinations of prejudice under neb. evid. r. 403, so a trial court’s
decision under that rule will not be reversed absent an abuse of discretion.
27. Motions for Mistrial: Proof. A defendant faces a higher threshold than merely
showing a possibility of prejudice when attempting to prove error predicated on
the failure to grant a mistrial.
80 	282 neBrAskA rePorTs

28. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combination thereof, the stan-
dard 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.
29. Appeal and Error: Words and Phrases. Plain error is error of such a nature
that to leave it uncorrected would result in damage to the integrity, reputation, or
fairness of the judicial process.
30. Trial: Expert Witnesses. Under the principles set forth in Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.s. 579, 113 s. Ct. 2786, 125 l. ed. 2d 469
(1993), and Schafersman v. Agland Coop, 262 neb. 215, 631 n.W.2d 862 (2001),
the trial court acts as a gatekeeper to ensure the evidentiary relevance and reli-
ability of an expert’s opinion.
31. Trial: Expert Witnesses: Pretrial Procedure. To sufficiently call specialized
knowledge into question under Daubert v. Merrell Dow Pharmaceuticals, Inc.,
509 U.s. 579, 113 s. Ct. 2786, 125 l. ed. 2d 469 (1993), and Schafersman v.
Agland Coop, 262 neb. 215, 631 n.W.2d 862 (2001), is to object with enough
specificity so that the court understands what is being challenged and can accord-
ingly determine the necessity and extent of any pretrial proceeding. The initial
task falls on the party opposing expert testimony to sufficiently call into question
the reliability of some aspect of the anticipated testimony.
32. Trial: Expert Witnesses: Pretrial Procedure: Notice. Assuming that the
opponent has been given timely notice of the proposed testimony, the oppo-
nent’s challenge to the admissibility of evidence under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.s. 579, 113 s. Ct. 2786, 125 l. ed. 2d 469 (1993),
and Schafersman v. Agland Coop, 262 neb. 215, 631 n.W.2d 862 (2001), should
take the form of a concise pretrial motion. It should identify, in terms of the
Daubert and Schafersman factors, what is believed to be lacking with respect to
the validity and reliability of the evidence and any challenge to the relevance of
the evidence to the issues of the case. In order to preserve judicial economy and
resources, the motion should include or incorporate all other bases for challeng-
ing the admissibility, including any challenge to the qualifications of the expert.
33. Trial: Courts. A trial court has broad discretion in determining how to perform
its gatekeeper function.
34. Jury Instructions: Appeal and Error. Whether jury instructions are correct is
a question of law, which an appellate court resolves independently of the lower
court’s decision.
35. Jury Instructions: Proof: Appeal and Error. In an appeal based on a claim of
an erroneous jury instruction, the appellant has the burden to show that the ques-
tioned instruction was prejudicial or otherwise adversely affected a substantial
right of the appellant.
36. Sentences: Appeal and Error. When a trial court’s sentence is within the statu-
tory guidelines, the sentence will only be disturbed by an appellate court when an
abuse of discretion is shown.
37. Legislature: Criminal Law: Public Policy: Sentences: Courts. The legislature
declares the law and public policy by defining crimes and fixing their punishment.
sTATe v. hUFF 	81
Cite as 282 neb. 78

The responsibility of the judicial branch is to apply those punishments according
to the nature and range established by the legislature.
38. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and (8)
the violence involved in the commission of the crime.
Appeal from the District Court for Furnas County: JAmes
e. doyle iv, Judge. Affirmed in part, and in part vacated and
remanded for resentencing.
Charles D. Brewster and Jonathan r. Brandt, of Anderson,
klein, swan & Brewster, and richard Calkins for appellant.
Jon Bruning, Attorney General, and erin e. Tangeman for
appellee.
heAvicAn, 	c.J., 	wright, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller-lermAn, JJ.
gerrArd, J.
herchel harold huff was driving a motor vehicle that struck
and killed kasey Jo Warner on a county road in Furnas County,
nebraska. huff was convicted of several charges in connection
with the accident, including manslaughter and motor vehicle
homicide. The primary issue in this appeal is whether double
jeopardy precludes punishment for both those offenses.
BACkGroUnD
on the afternoon of the accident, huff had been at a bar in
oxford, nebraska, with some acquaintances, including ryan
Markwardt. Markwardt said that when he arrived at the bar,
huff was already there with a beer in front of him. Markwardt
played pool, while huff talked to his wife on the telephone.
Both men were drinking beer. Markwardt estimated that huff
drank four or five beers. After about 11⁄2 hours, huff and
Markwardt walked to another bar, where they drank more
beers. Markwardt said they had a couple of beers and a couple
of “Jägerbombs,” which are cocktails made from a shot of
Jägermeister liquor and a red Bull energy drink. After a half
hour, they left in huff’s vehicle and stopped at a general store.
82 	282 neBrAskA rePorTs

huff drove. Then they returned to the first bar and had a couple
more beers and a cocktail. After another half hour or so, they
left and stopped at a gas station on their way to holbrook,
nebraska, where they both lived.
There was conflicting evidence regarding how much huff
had to drink that day. The bartender at the first bar that huff
and Markwardt went to testified that she served huff only two
beers and that he did not finish the second one. And huff testi-
fied at trial that he had only four drinks that day. he admitted
drinking a beer at the first bar, two Jägerbombs at the sec-
ond bar, and part of another beer when they returned to the
first bar.
Markwardt testified that huff had been drinking more than
him throughout the day. Markwardt’s blood was tested at 8:48
p.m. on the day of the accident, and his blood alcohol content
was .13 grams of alcohol per 100 milliliters of blood. At trial,
Dr. henry nipper, a forensic toxicologist, opined over objec-
tion that huff had been impaired by alcohol, calculating that
huff’s blood alcohol content was .15 grams of alcohol per 100
milliliters of blood at the time of the accident.
Prior to the accident, Warner had been home with her family.
she had dinner with her husband and two daughters at about
6 p.m. Warner, who exercised daily, said that she wanted to go
for a run after dinner because it was a warm, sunny evening.
Warner’s 3-year-old daughter wanted to go along with her.
Warner’s daughter would keep up with her mother by riding a
small gas-powered, four-wheel all-terrain vehicle (ATV) that
had a governor on the throttle so that it would go only about
as fast as Warner would jog. They left at about 7 p.m. Warner
hesitated as they left the house, because the opening lineups
were being announced for a televised volleyball game in which
Warner had an interest. But Warner’s daughter wanted to go, so
Warner agreed and they headed east from their driveway on the
“river road.”
At the same time, huff and Markwardt were on their way
to holbrook. The “T-top” roof of huff’s vehicle was open, the
windows were down, and they were playing loud rap music.
huff refused to let Markwardt drive, because his vehicle, a
blue 1987 Chevrolet Camaro, was “his baby.” huff drove
sTATe v. hUFF 	83
Cite as 282 neb. 78

toward holbrook on what Markwardt described as a “packed,
gravel road.” They took a number of gravel county roads and
nebraska state highway 283, until they were headed west on
County road 721, also known as the river road. The speed
limit on the river road is 50 miles per hour, but it is a curvy,
poorly maintained gravel road. Markwardt estimated that huff
was driving anywhere from 50 to 75 or 80 miles per hour,
sometimes while on the telephone. huff admitted that he was
driving too fast.
Markwardt said that he was looking out the side window of
huff’s vehicle, watching people harvesting, when huff yelled
and slammed on the brakes. Markwardt saw Warner and her
daughter on the north shoulder of the road. The vehicle skidded
as huff braked, and Markwardt saw Warner throw her daugh-
ter out of the way. Then the vehicle hit Warner, and she went
under it.
Brian Bauxbaum, an accident reconstructionist with the
nebraska state Patrol, opined that huff’s vehicle was travel-
ing at least 72 miles per hour, and perhaps as fast as 84 miles
per hour, when it started to skid. The vehicle skidded for 239
feet to the point of impact, which took about 21⁄2 seconds.
Bauxbaum opined that had huff been traveling at 50 miles
per hour, the speed limit for the river road, he would have
come to a stop before hitting Warner. Bauxbaum also opined
that Warner could have been seen from 1,221 feet away, which
would have given huff 111⁄2 seconds to avoid the collision,
even at 72 miles per hour.
Warner was struck from behind by the left front wheel of the
vehicle, near the driver’s-side door. Warner’s body was dragged
under the vehicle until becoming dislodged when the vehicle
finally left the road. Blood, flesh, and burn marks were later
found on the underside of the vehicle. Warner died from severe,
blunt force trauma to her head, trunk, and extremities.
The vehicle eventually came to a stop in a field north of
the road. According to Markwardt, after the collision, huff’s
immediate concern was that they “get [their] stories straight,”
and huff said that he “couldn’t take the fall for this,” so he
wanted Markwardt to say that he had been driving. Markwardt
84 	282 neBrAskA rePorTs

refused. Then they got out of the vehicle and checked on
Warner and her daughter. huff covered Warner’s body with
his shirt, because much of her clothing had been dislodged
or torn off. Markwardt made sure that Warner’s daughter was
all right, then ran to get help. huff called the 911 emergency
dispatch service.
shawn and Mike Pruitt, who are brothers, had been “cutting
beans” in a field near the accident, and Mike saw huff’s vehi-
cle go off the road. shawn headed toward the scene and came
across Markwardt, who waved his arms and asked for help.
shawn went to Warner’s nearby house, but no one answered
the door, so shawn entered and used a telephone to call the 911
emergency dispatch service. Then he returned to the accident
scene, where he found Warner’s daughter and took her to his
van. shawn also removed his shirt to help cover Warner’s body.
Warner’s husband, who had been out in his fields, saw shawn’s
van leaving his driveway, and when he heard sirens, he put his
other daughter in her car seat in his pickup truck and followed
shawn’s van to the accident scene.
Mike also followed shawn to the accident scene about 6 to
8 minutes later, where he saw the ATV idling in the middle
of the road, pointing southeast. Mike moved the ATV so an
arriving ambulance could get through. he also found Warner’s
running shoes in the middle of the road. Mike said that when
huff asked to use his telephone, the smell of alcohol on huff’s
breath was “[o]bvious.” Mike also said that huff was “stum-
bling around.”
According to Markwardt, when he returned to the scene of
the accident, huff again said that they needed to “get [their]
stories straight” and asked Markwardt more than once to say
that he, not huff, had been driving. But when law enforcement
arrived, Markwardt reported that huff had been driving.
The arriving officer was sgt. lee lozo of the Furnas County
sheriff’s office. When lozo arrived, he saw huff’s vehicle
about 30 feet off the roadway and Warner’s body lying on the
shoulder of the road. lozo also saw two shirtless men, one
of whom was huff. huff was “very upset,” and lozo could
smell a strong odor of alcohol coming from him. lozo asked
sTATe v. hUFF 	85
Cite as 282 neb. 78

who had been driving the vehicle, and huff admitted that he
had. lozo immediately handcuffed huff, whom lozo described
as “freaking out.” lozo later removed the handcuffs so that
huff could be examined by medical personnel, but when huff
became vocal and angry, lozo put the handcuffs back on.
lozo had huff sit on the bumper of a firetruck and continued
to question him, but lozo stopped after huff invoked his right
to counsel. After huff was examined by an emergency medical
technician, lozo arrested huff for suspected driving under the
influence (DUI) and had another deputy, Vernon levisay, trans-
port huff to the hospital for a blood draw.
lozo did not conduct a preliminary breath test or ask huff to
perform any field sobriety tests. lozo explained that he was the
only officer to have responded and was trying to manage emer-
gency personnel and Warner’s family at the scene in addition
to huff and Markwardt. lozo also said that huff’s emotional
state would not have been conducive to field sobriety tests,
which depend on evaluating the suspect’s ability to focus. And
lozo testified over objection that huff had invoked his right to
counsel, at which point “everything stops.”
levisay also said that he could smell a strong odor of alco-
hol coming from huff, that huff’s eyes were bloodshot and
glazed, and that huff was having so much difficulty walking
that he had to lean against levisay’s patrol car. huff was cry-
ing and distraught, and he vomited before he got to the patrol
car. levisay took huff to the hospital for a blood test. huff
vomited in the patrol car. levisay testified that huff was talk-
ing in the patrol car; huff repeatedly said, “I’m fucked,” but
levisay was unable to make out many of huff’s other remarks
because huff’s speech was noticeably slurred.
After arriving at the hospital, huff initially agreed to the
blood test, but then changed his mind and refused the test.
According to huff, he wanted to take a breath test instead,
although levisay testified that huff never asked for a breath
test instead of a blood test. levisay wrote down that huff had
refused to be tested, and huff was taken to the sheriff’s office
to be processed and jailed. The county sheriff’s deputy who
took custody of huff from levisay also testified that huff
smelled strongly of alcohol.
86 	282 neBrAskA rePorTs

huff was charged by information with motor vehicle homi-
cide,1 manslaughter,2 refusing to submit to a chemical test,3 and
tampering with a witness.4 huff pled guilty to manslaughter,
but not guilty to the remaining charges. The court, finding that
a factual basis existed for huff’s guilty plea, accepted the plea
and found him guilty of manslaughter.
huff filed a plea in bar alleging that because he had been
found guilty of manslaughter, prosecution on the charge of
motor vehicle homicide was barred by the Double Jeopardy
Clause. But the court rejected huff’s argument that manslaugh-
ter is a lesser-included offense of motor vehicle homicide and
overruled his plea in bar. huff filed an interlocutory appeal, but
we affirmed the district court’s order in State v. Huff (Huff I),5
reasoning that the case did not involve successive prosecutions,
but, rather, a single prosecution involving multiple charges,
only one of which had been resolved. so, we concluded, only if
huff was convicted and sentenced on the motor vehicle homi-
cide charge could he assert a double jeopardy claim based upon
alleged multiple punishments for the same offense.6
huff also moved to suppress the evidence of his refusal to
submit to a chemical test, arguing that no probable cause had
existed to demand the test in the first place. The district court
found that there had been probable cause to arrest huff on sus-
picion of DUI, so the court overruled his motion to suppress.
And huff filed a motion in limine for an order directing the
state and its witnesses to refrain from offering evidence that
huff had, after the accident, stated that he needed to contact a
lawyer. huff argued that his conduct had been constitutionally
protected and that such testimony would be unfairly preju-
dicial. The court sustained that motion, which later resulted
in an objection to lozo’s testimony that field sobriety tests
1 see neb. rev. stat. § 28-306 (reissue 2008).
2 see neb. rev. stat. § 28-305 (reissue 2008).
3 see neb. rev. stat. § 60-6,197 (reissue 2010).
4 see neb. rev. stat. § 28-919 (reissue 2008).
5 see State v. Huff, 279 neb. 68, 776 n.W.2d 498 (2009).
6 see id.
sTATe v. hUFF 	87
Cite as 282 neb. 78

had not been performed because huff had invoked his right
to counsel.
The motor vehicle homicide charge was tried to a jury,
while the charges of refusing a chemical test and tampering
with a witness were tried to the court. huff proposed that in
addition to being instructed on DUI as a predicate offense for
motor vehicle homicide, the jury should also be instructed
on speeding as the predicate offense. If speeding was the
predicate offense, as opposed to DUI, huff’s motor vehicle
homicide conviction would be a misdemeanor, as opposed to
a felony.7
The district court refused huff’s proposed instruction and
instructed the jury to convict huff of motor vehicle homicide
only if it found that huff had committed DUI. The court did,
however, instruct the jury on manslaughter as a lesser-included
offense of motor vehicle homicide, with speeding as the predi-
cate offense for manslaughter. A step instruction was given
instructing the jury to only consider the manslaughter charge if
it found huff not guilty of motor vehicle homicide.
But the jury found huff guilty of motor vehicle homicide,
and huff was convicted pursuant to that verdict. In addition,
the court found huff guilty of tampering with a witness, based
upon his attempt to persuade Markwardt to lie to authorities
about who had been driving. And the court found huff guilty
of refusing to submit to a chemical test. evidence was adduced
that huff had been convicted of DUI in 1999 and 2002. The
court found that the prior convictions were sufficient evidence
to enhance the motor vehicle homicide conviction to a Class II
felony and that the two prior convictions for DUI enhanced
the conviction for refusal to submit to a chemical test to a
Class IIIA felony.
huff objected to enhancement of the refusal conviction, argu-
ing that the prior offenses had to be refusals, not DUI’s. huff
also moved to discharge on double jeopardy grounds, alleging
that because he had previously been convicted of manslaughter,
the conviction for motor vehicle homicide should be dismissed.
7 see § 28-306.
88 	282 neBrAskA rePorTs

But huff was sentenced to not less than nor more than 45
years’ imprisonment for motor vehicle homicide, and not less
than nor more than 20 years’ imprisonment for manslaughter,
with those sentences to be served concurrently. huff was also
sentenced to not less than nor more than 5 years’ imprisonment
for refusal to submit to a chemical test, and not less than 20
nor more than 60 months’ imprisonment for tampering with a
witness, with those sentences to be served consecutively to the
manslaughter and motor vehicle homicide sentences and to one
another. huff appeals.
AssIGnMenTs oF error
huff assigns, restated, that the district court erred in:
(1) convicting and sentencing him to multiple punishments
for the same offense, in violation of the Double Jeopardy
Clauses of the state and federal Constitutions;
(2) failing to sustain his motion to suppress and allowing
evidence at trial that failed to conform to constitutional and
statutory requirements;
(3) enhancing his conviction for refusal to submit to a chemi-
cal test with prior DUI convictions;
(4) failing to grant a mistrial when the order in limine pre-
cluding mention of huff’s invocation of counsel was violated,
denying him a constitutionally fair trial;
(5) finding sufficient evidence to convict him of tampering
with a witness;
(6) ordering his counsel to guide the state through foun-
dational evidence to introduce an expert opinion, denying his
right to a constitutionally fair trial;
(7) failing to instruct the jury on “misdemeanor homi-
cide,” contrary to nebraska law and the state and federal
Constitutions; and
(8) sentencing him to excessive sentences.
AnAlysIs
double JeopArdy
[1] huff’s first argument is that his convictions for man-
slaughter and motor vehicle homicide violate the Double
Jeopardy Clauses of the state and federal Constitutions, because
manslaughter is a lesser-included offense of motor vehicle
sTATe v. hUFF 	89
Cite as 282 neb. 78

homicide. huff’s argument presents a question of law, on which
we reach a conclusion independent of the court below.8
[2-4] The Double Jeopardy Clauses of both the federal
and the nebraska Constitutions protect against three distinct
abuses: (1) a second prosecution for the same offense after
acquittal, (2) a second prosecution for the same offense after
conviction, and (3) multiple punishments for the same offense.9
At issue here, as we explained in Huff I, are multiple pun-
ishments for the same offense. Under Blockburger v. United
States,10 where the same act or transaction constitutes a viola-
tion of two distinct statutory provisions, the test to be applied
to determine whether there are two offenses or one is whether
each provision requires proof of a fact which the other does
not.11 The Blockburger, or “same elements,” test asks whether
each offense contains an element not contained in the other,
or, more precisely, “whether each provision requires proof of
a fact which the other does not.”12 If not, they are the same
offense and double jeopardy bars additional punishment. If so,
they are not the same offense and double jeopardy is not a bar
to additional punishment.13
A person who causes the death of another unintentionally
while engaged in the operation of a motor vehicle in viola-
tion of the law of the state of nebraska or in violation of any
city or village ordinance commits motor vehicle homicide. In
addition, § 28-306(3)(a) provides that if the proximate cause
of the death of another is the operation of a motor vehicle in
violation of certain DUI statutes,14 motor vehicle homicide is a
Class III felony, instead of a Class I misdemeanor.15
8 see Huff I, supra note 5.
9 Id.
10 Blockburger v. United States, 284 U.s. 299, 52 s. Ct. 180, 76 l. ed. 306
(1932).
11 State v. Winkler, 266 neb. 155, 663 n.W.2d 102 (2003).
12 Blockburger, supra note 10, 284 U.s. at 304.
13 see id.
14 see neb. rev. stat. §§ 60-6,196 (reissue 2010) and 60-6,197.06 (Cum.
supp. 2008).
15 see § 28-306(2) and (3)(b).
90 	282 neBrAskA rePorTs

“A person commits manslaughter if he kills another without
malice, either upon a sudden quarrel, or causes the death of
another unintentionally while in the commission of an unlaw-
ful act.”16 Clearly, motor vehicle homicide requires proof of
elements that are not part of unlawful act manslaughter—we
have so held in the context of jury instructions, and our conclu-
sion under Blockburger is the same.17 But taken in the statutory
abstract, it is impossible to convict someone of motor vehicle
homicide without proving facts that would also prove the nec-
essary elements of manslaughter: unintentionally causing the
death of a person while committing an unlawful act. Motor
vehicle homicide simply requires the state to additionally
prove that the unlawful act was the unlawful operation of a
motor vehicle.
But it is far from clear how the Blockburger test is to be
applied where compound and predicate offenses are involved.
An examination of the U.s. supreme Court’s Blockburger
jurisprudence will help explain the problem. Blockburger itself
did not involve compound or predicate offenses. rather, in
Blockburger, the defendant was convicted of two federal nar-
cotics laws: one prohibited the sale of a controlled substance
except in the original tax-paid stamped package, and the other
prohibited the sale of a controlled substance without a written
order of the purchaser on an official form.18 The Court found
that the offenses were separate for double jeopardy purposes,
because one element of each offense was unique. The emphasis
was on the elements of the two crimes.19
The Court came closer to applying Blockburger to a com-
pound offense in Iannelli v. United States,20 in which the
defendants were convicted of both a federal gambling statute
16 § 28-305(1).
17 see State v. Wright, 261 neb. 277, 622 n.W.2d 676 (2001).
18 see Blockburger, supra note 10.
19 see id. see, also, e.g., Brown v. Ohio, 432 U.s. 161, 97 s. Ct. 2221, 53 l.
ed. 2d 187 (1977).
20 Iannelli v. United States, 420 U.s. 770, 95 s. Ct. 1284, 43 l. ed. 2d 616
(1975).
sTATe v. hUFF 	91
Cite as 282 neb. 78

and conspiring to violate that statute. The Court ultimately
concluded that Congress intended that defendants could be
convicted under both statutes. But, the Court also observed
that the Blockburger test would be satisfied. An element of
the conspiracy offense was an agreement, which was not pres-
ent in the underlying gambling offense. But the underlying
gambling offense also required proof of a fact that the con-
spiracy did not, because the gambling offense required proof
that the defendants actually did “‘conduct, finance, manage,
supervise, direct, or own’” an illegal gambling business.21
Because the “overt act” requirement in the conspiracy statute
could be satisfied much more easily, the gambling offense also
required proof of a fact that the conspiracy offense did not.22
so Iannelli did not precisely present an instance of a compound
and predicate offense, because the conspiracy statute at issue in
Iannelli did not require proof that the “predicate” offense had
been committed.
It is significant to note what the Court did not say in
Iannelli: The Court assumed that conspiracy could potentially
subsume its predicate offense, despite the fact that the con-
spiracy statute was general, such that the “predicate” offense
could be any federal offense. The Court was not required to
clarify that assumption in Brown v. Ohio,23 in which the Court
reaffirmed Blockburger, but not in the context of a compound
offense. The Court finally addressed a compound offense in
Harris v. Oklahoma,24 a short per curiam opinion in which it
summarily reversed a defendant’s state court convictions for
an armed robbery upon which a previous conviction for felony
murder had been predicated. The Court explained that “[w]hen,
as here, conviction of a greater crime, murder, cannot be had
without conviction of the lesser crime, robbery with firearms,
the Double Jeopardy Clause bars prosecution for the lesser
21 Id., 432 U.s. at 785 n.17.
22 Id.
23 Brown, supra note 19.
24 Harris v. Oklahoma, 433 U.s. 682, 97 s. Ct. 2912, 53 l. ed. 2d 1054
(1977).
92 	282 neBrAskA rePorTs

crime after conviction of the greater one.”25 But, while the
Court’s decision in Harris was consistent with Iannelli, the
Court did not expressly state in Harris that its conclusion was
based on Blockburger principles.
The 	Court 	made 	that 	connection 	in 	Whalen 	v. 	United
States,26 in which the defendant was convicted in the District of
Columbia for both felony murder and the rape upon which the
felony murder was predicated. expressly applying Blockburger,
the Court concluded that consecutive sentences for rape and for
a killing committed in the course of the rape were not autho-
rized. The Court reasoned that it was “plainly not the case
that ‘each provision requires proof of a fact which the other
does not.’ A conviction for killing in the course of a rape can-
not be had without proving all the elements of the offense of
rape.”27 The government, relying on the compound nature of
felony murder, argued that felony murder and rape were not
the “same” offenses under Blockburger, because felony murder
could be predicated on other felonies and therefore did not in
all cases require proof of a rape. But the Court rejected that
argument, explaining:
Where the offense to be proved does not include proof
of a rape—for example, where the offense is a killing in
the perpetration of a robbery—the offense is of course
different from the offense of rape, and the Government is
correct in believing that cumulative punishments for the
felony murder and for a rape would be permitted under
Blockburger. In the present case, however, proof of rape
is a necessary element of proof of the felony murder, and
we are unpersuaded that this case should be treated dif-
ferently from other cases in which one criminal offense
requires proof of every element of another offense.
There would be no question in this regard if Congress,
instead of listing the six lesser included offenses in the
25 Id., 433 U.s. at 682. see, also, Payne v. Virginia, 468 U.s. 1062, 104 s. Ct.
3573, 82 l. ed. 2d 801 (1984).
26 Whalen v. United States, 445 U.s. 684, 100 s. Ct. 1432, 63 l. ed. 2d 715
(1980).
27 Id., 445 U.s. at 693-94.
sTATe v. hUFF 	93
Cite as 282 neb. 78

alternative, had separately proscribed the six different
species of felony murder under six statutory provisions.
It is doubtful that Congress could have imagined that so
formal a difference in drafting had any practical signifi-
cance, and we ascribe none to it. To the extent that the
Government’s argument persuades us that the matter is
not entirely free of doubt, the doubt must be resolved in
favor of lenity.28
In his dissent in Whalen, then-Justice rehnquist came closer
than the Court to addressing the theoretical issues raised by
applying Blockburger to compound and predicate offenses.
Justice rehnquist explained that
the Blockburger test, although useful in identifying stat-
utes that define greater and lesser included offenses in
the traditional sense, is less satisfactory, and perhaps
even misdirected, when applied to statutes defining “com-
pound” and “predicate” offenses. strictly speaking, two
crimes do not stand in the relationship of greater and
lesser included offenses unless proof of the greater neces-
sarily entails proof of the lesser. . . . In the case of assault
and assault with a deadly weapon, proof of the latter
offense will always entail proof of the former offense,
and this relationship holds true regardless whether one
examines the offenses in the abstract or in the context of
a particular criminal transaction.
on the other hand, two statutes stand in the relation-
ship of compound and predicate offenses when one stat-
ute incorporates several other offenses by reference and
compounds those offenses if a certain additional element
is present. To cite one example, 18 U. s. C. § 924(c)(1)
states that “[w]hoever . . . uses a firearm to commit any
felony for which he may be prosecuted in a court of the
United states . . . shall . . . be sentenced to a term of
imprisonment for not less than one year nor more than
ten years.” Clearly, any one of a plethora of felonies could
serve as the predicate for a violation of § 924(c)(1).
28 Id., 445 U.s. at 694.
94 	282 neBrAskA rePorTs

This multiplicity of predicates creates problems when
one attempts to apply Blockburger. If one applies the
test in the abstract by looking solely to the wording of
§ 924(c)(1) and the statutes defining the various predicate
felonies, Blockburger would always permit imposition of
cumulative sentences, since no particular felony is ever
“necessarily included” within a violation of § 924(c)(1).
If, on the other hand, one looks to the facts alleged in
a particular indictment brought under § 924(c)(1), then
Blockburger would bar cumulative punishments for vio-
lating § 924(c)(1) and the particular predicate offense
charged in the indictment, since proof of the former
would necessarily entail proof of the latter.29
Justice rehnquist observed that because the Court had not
previously applied Blockburger in the context of compound
and predicate offenses, it had not had to decide whether to
apply the test to the statutes in the abstract or specifically
to the indictment as framed in a particular case. But, Justice
rehnquist wrote, the Court’s past decisions seemed to have
assumed that Blockburger stood or fell on the wording of
the statutes alone. And, “because the Blockburger test is
simply an attempt to determine legislative intent, it seems
more natural to apply it to the language as drafted by the
legislature than to the wording of a particular indictment.”30
In the end, Justice rehnquist disagreed with the majority’s
decision to apply Blockburger, reasoning that “when applied
to compound and predicate offenses, the Blockburger test
has nothing whatsoever to do with legislative intent, turning
instead on arbitrary assumptions and syntactical subtleties”
and that if the polestar was to be legislative intent, there
was no reason to apply Blockburger when it did not advance
that inquiry.31
29 Id., 445 U.s. at 708-09 (rehnquist, J., dissenting; Burger, C.J., joins) (cita-
tions omitted) (emphasis omitted).
30 Id., 445 U.s. at 711.
31 Id., 445 U.s. at 712.
sTATe v. hUFF 	95
Cite as 282 neb. 78

had Justice rehnquist’s view in Whalen carried the day, the
present case might be far simpler to resolve. But it did not,
and the Court reaffirmed the principles of Whalen in Illinois v.
Vitale,32 in which a juvenile’s vehicle had struck and killed two
children. The juvenile was convicted of carelessly failing to
reduce speed to avoid an accident, but then charged with invol-
untary manslaughter, which he claimed was barred by double
jeopardy. Applying the Blockburger test, the Court disagreed,
explaining:
If, as a matter of Illinois law, a careless failure to
slow is always a necessary element of manslaughter by
automobile, then the two offenses are the “same” under
Blockburger and [the juvenile’s] trial on the latter charge
would constitute double jeopardy under Brown v. Ohio. In
any event, it may be that to sustain its manslaughter case
the state may find it necessary to prove a failure to slow
or to rely on conduct necessarily involving such failure; it
may concede as much prior to trial. In that case, because
[the juvenile] has already been convicted for conduct
that is a necessary element of the more serious crime for
which he has been charged, his claim of double jeopardy
would be substantial under Brown and our later decision
in Harris v. Oklahoma.33
To the same effect, the Court wrote in Garrett v. United States34
that under the Blockburger test, the federal offense of engaging
in a “‘continuing criminal enterprise’ (CCe)” was the same as
its predicate offenses (in Garrett, importation of marijuana).
Justice rehnquist, writing for the Court, explained that under
Blockburger, “each of the predicate offenses is the ‘same’ for
double jeopardy purposes as the CCe offense because the
predicate offense does not require proof of any fact not neces-
sary to the CCe offense.”35
32 Illinois v. Vitale, 447 U.s. 410, 100 s. Ct. 2260, 65 l. ed. 2d 228 (1980).
33 Id., 447 U.s. at 419-20.
34 Garrett v. United States, 471 U.s. 773, 775, 105 s. Ct. 2407, 85 l. ed. 2d
764 (1985).
35 Id., 471 U.s. at 778.
96 	282 neBrAskA rePorTs

Then, in United States v. Dixon,36 a sharply divided Court was
unable to articulate a clear rule for how to apply Blockburger to
compound and predicate offenses. In Dixon, a majority of the
Court concluded that the Double Jeopardy Clause precluded
prosecution of some, but not all, charges brought against a
defendant who had previously been punished for criminal
contempt arising out of the same conduct. But assembling that
majority required five separate opinions. Justice scalia wrote
for the Court, but was joined only by Justice kennedy in his
Blockburger analysis.37 Justice scalia read the court order
that formed the basis of the contempt conviction as directing
the defendant not to commit assault, so, relying on Harris v.
Oklahoma, Justice scalia concluded that under Blockburger,
simple assault was a lesser-included offense of the contempt.
But other offenses that required proof of facts not implicated
by the court order were not lesser included, because it was pos-
sible to violate the court order through the predicate offense of
simple assault (and thus commit contempt) without committing
the other offenses at issue.38
Chief Justice rehnquist, joined by Justices o’Connor and
Thomas, did not join that part of Justice scalia’s opinion.39
Chief Justice rehnquist, echoing the concerns he had expressed
in his Whalen dissent, contended that Blockburger required
a focus on the elements of the generic offense of contempt
of court, instead of the terms of the particular court orders
involved. so, the Chief Justice would have concluded that
because the generic crime of contempt of court had different
elements than the substantive criminal charges at issue, they
were separate offenses under Blockburger.
The Chief Justice argued that the Court’s “double jeopardy
cases applying Blockburger have focused on the statutory ele-
ments of the offenses charged, not on the facts that must be
36 United States v. Dixon, 509 U.s. 688, 113 s. Ct. 2849, 125 l. ed. 2d 556
(1993).
37 see id.
38 see id.
39 see id. (rehnquist, C.J., concurring in part and dissenting in part; o’Connor
and Thomas, JJ., join).
sTATe v. hUFF 	97
Cite as 282 neb. 78

proved under the particular indictment at issue—an indictment
being the closest analogue to the court orders in this case.”40
The Chief Justice rejected Justice scalia’s conclusion that
Harris suggested otherwise, concluding that the basis of Harris
was that the two crimes at issue there were “akin to greater and
lesser included offenses” because a lesser-included offense is
one that is “‘necessarily included’” within the statutory ele-
ments of another offense; for instance, as in Harris, “a defend-
ant who commits armed robbery necessarily has satisfied one
of the statutory elements of felony murder.”41
The rest of the Dixon Court did not clearly express its
understanding of how Blockburger should be applied, although
Justice souter, joined by Justice stevens, seemed to agree with
the Chief Justice’s conclusion that because Blockburger is a
test for statutory construction, it should emphasize the ele-
ments of the two crimes.42 And again, had the Chief Justice’s
view carried the day, the appeal presently before this court
would be much simpler to resolve. As it stands, however,
Dixon leaves the matter far from clear. In its last opportu-
nity to address Blockburger in the context of compound and
predicate offenses, in Rutledge v. United States,43 the Court
concluded that the Double Jeopardy Clause precluded punish-
ing a defendant for both continuing criminal enterprise (CCe)
and conspiracy convictions, because conspiracy was a lesser-
included offense. It is worth noting that although CCe and
conspiracy are both arguably compound offenses, Rutledge
does not help us in this case because both charges were based
on the same predicates.
A few things are clear from all of this. First, it is clear that
under the Court’s precedent, Blockburger precludes punishing
a defendant for both a compound offense and its predicate.44
40 Id., 509 U.s. at 716-17.
41 Id., 509 U.s. at 718.
42 see Dixon, supra (souter, J., concurring in the judgment in part and dis-
senting in part; stevens, J., joins).
43 Rutledge v. United States, 517 U.s. 292, 116 s. Ct. 1241, 134 l. ed. 2d
419 (1996).
44 see Whalen, supra note 26.
98 	282 neBrAskA rePorTs

We have also held as much,45 most pertinently in State v.
Hoffman,46 in which we concluded that the defendant’s right to
be free from double jeopardy was violated when he was con-
victed of both DUI and motor vehicle homicide predicated on
the DUI. so, obviously, huff could not have been punished for
both motor vehicle homicide and DUI.
It is also clear that a defendant can be punished for both a
compound offense and another offense that could have been,
but actually was not, the predicate offense.47 We held as much
in Hoffman, in which we concluded that double jeopardy did
not preclude the defendant from being punished for second
degree assault for recklessly causing serious bodily injury to
the victim, despite the fact that reckless driving had also been
alleged, in the alternative, as a predicate for motor vehicle
homicide. We explained that the motor vehicle homicide con-
viction had been predicated on DUI and that DUI and second
degree assault were not the same offenses under a Blockburger
analysis.48 so, huff could have been punished for motor vehicle
homicide predicated on DUI and separately for speeding.
That precedent compels the conclusion that, at least as far
as a compound offense is purportedly the greater offense, a
court must consider the specific predicate offense alleged when
comparing the “elements of the offense” for Blockburger pur-
poses. For instance, in this case, the Court’s decision in Whalen
suggests that we treat motor vehicle homicide predicated on
DUI as something akin to a separate offense of “motor vehicle
homicide by DUI” for Blockburger analysis, just as the Court
in Whalen treated the felony murder at issue in that case as a
conviction of “a killing in the course of rape.”49
45 see, e.g., State v. Mata, 266 neb. 668, 668 n.W.2d 448 (2003), abrogated
on other grounds, State v. Rogers, 277 neb. 37, 760 n.W.2d 35 (2009);
State v. Bjorklund, 258 neb. 432, 604 n.W.2d 169 (2000), abrogated on
other grounds, State v. Mata, 275 neb. 1, 745 n.W.2d 229 (2008); State v.
Nissen, 252 neb. 51, 560 n.W.2d 157 (1997).
46 State v. Hoffman, 227 neb. 131, 416 n.W.2d 231 (1987).
47 see, Vitale, supra note 32; Whalen, supra note 26.
48 see Hoffman, supra note 46.
49 see Whalen, supra note 26, 445 U.s. at 694 n.8.
sTATe v. hUFF 	99
Cite as 282 neb. 78

But that does not tell us what to do when the allegedly
lesser-included offense is a compound offense. The state sug-
gests, based on our decision in State v. Winkler,50 that we should
also incorporate the elements of the predicate offense there. In
Winkler, we confronted a similar Blockburger problem: how to
determine the elements of the offense, for purposes of com-
parison, when the offenses at issue can be committed using
alternative sets of elements. For instance, a person may com-
mit manslaughter by killing either upon a sudden quarrel or
while in the commission of an unlawful act.51 In Winkler, we
concluded that “in applying Blockburger to separately codified
criminal statutes which may be violated in alternative ways,
only the elements charged in the case at hand should be com-
pared in determining whether the offenses under consideration
are separate or the same for purposes of double jeopardy.”52
That is why the elements of manslaughter upon a sudden quar-
rel are not part of our analysis here. And the state points out
that in State v. Brouillette,53 we characterized manslaughter and
motor vehicle homicide as “single crime[s] which may be com-
mitted in a number of ways.”
We disagree with the state’s reading of these cases. Winkler
involved alternative elements to the offense—not merely differ-
ent predicate acts that could be different ways of proving the
same element of the offense. In other words, Winkler stands
for the proposition that a court can look to the allegations in a
case for determining which alternative elements of a crime are
at issue for Blockburger purposes. But a predicate act is sim-
ply one element of a crime, and Winkler does not require, for
Blockburger purposes, that the court look behind the statutory
element to see what may be used to prove it.
nor does Brouillette support the state’s argument. The issue
in Brouillette was not double jeopardy—it was the sufficiency
of a charging information that alleged several different theories
50 Winkler, supra note 11.
51 see § 28-305(1).
52 Winkler, supra note 11, 266 neb. at 163, 663 n.W.2d at 108.
53 State v. Brouillette, 265 neb. 214, 223, 655 n.W.2d 876, 886 (2003).
100 	282 neBrAskA rePorTs

of the crime in the alternative. Motor vehicle homicide and
manslaughter are crimes that may factually be committed in a
number of ways. But motor vehicle homicide has only one set
of elements, one of which is a predicate offense, and although
manslaughter has alternative elements, only unlawful act man-
slaughter is at issue here. Winkler does not help the state.
Instead, we find the eighth Circuit’s decision in U.S. v.
Allen54 to be helpful in addressing this problem. In Allen,
the defendant was convicted of two federal charges: count I,
armed robbery by force or violence in which a killing occurs,
and count II, carrying or using a firearm during a crime of
violence and committing murder. Applying Blockburger, the
court found that count II required proof of two facts that the
first count did not: carrying or use of a firearm during the
commission of a violent crime and murdering by firearm. The
question was whether count I required proof of any facts that
count II did not, given that count II did not require proof of
a taking of bank property by force or violence or intimida-
tion. rather, count II only required proof of some underlying
crime of violence which could have been armed robbery or any
other violent felony. In other words, as in the present case, the
potential lesser-included offense was a compound offense that
could be satisfied by any number of unlawful acts. The court
explained the problem:
It is not exactly clear how predicate offenses are to be
treated for purposes of Blockburger. There is some indica-
tion from the supreme Court that Blockburger is simply a
rule of statutory construction which is neither intended nor
designed to apply to the particular facts of a case. . . .
on the other hand, the supreme Court has applied
Blockburger by considering the nature of the underlying
felony in a felony-murder indictment rather than based
only on the elements of the statutes at issue. . . . Under
this 	interpretation 	of 	Blockburger, 	predicate 	offenses
which form the basis of other statutory offenses would
54 U.S. v. Allen, 247 F.3d 741 (8th Cir. 2001), vacated on other grounds and
remanded for further consideration 536 U.s. 953, 122 s. Ct. 2653, 153 l.
ed. 2d 830 (2002).
sTATe v. hUFF 	101
Cite as 282 neb. 78

always fail the Blockburger test. In the present case, the
underlying bank robbery satisfies the “crime of violence”
element of [count II]. By definition, therefore, there is no
fact that must be proved in [count I] that is different from
the elements required to be proved for conviction under
[count II].55
The 	court 	concluded, 	based 	on 	that 	reasoning, 	that 	the
Blockburger test had not been satisfied. In other words, the
Allen court held that Blockburger was not met where the lesser-
included offense could satisfy an element of another, even if it
was not the exclusive means of doing so.56
Based on similar reasoning, several federal courts have
concluded that the federal crime of using a firearm to commit
a crime of violence was, under the Blockburger test, a lesser-
included offense of the federal crime of carjacking, despite the
fact that the “crime of violence” element of the use of a fire-
arm charge could be satisfied in any number of other ways.57
Because the carjacking statute required proof that the defendant
used a gun, it necessarily proved that the defendant used or
carried a firearm. And carjacking is always a crime of violence.
so, while there are other crimes of violence, proof of the ele-
ments of carjacking will always prove the elements of use of
a firearm to commit a crime of violence. In other words, the
crimes fail the Blockburger test because conduct that violates
one of the statutes will always violate the other, making the
other a lesser-included offense.58
[5,6] We find this reasoning persuasive and helpful in this
case, although we recognize that it is again distinguishable
because in this case, both offenses are compound offenses.
nonetheless, we cannot escape the basic fact that it is impos-
sible to prove the elements of motor vehicle homicide without
55 Id. at 767-68.
56 see, id.; U.S. v. Johnson, 225 F. supp. 2d 1022 (n.D. Iowa 2002), reversed
on other grounds 352 F.3d 339 (8th Cir. 2003).
57 see, U.S. v. Moore, 43 F.3d 568 (11th Cir. 1995); U.S. v. Johnson, 32 F.3d
82 (4th Cir. 1994); U.S. v. Mohammed, 27 F.3d 815 (2d Cir. 1994); U.S. v.
Singleton, 16 F.3d 1419 (5th Cir. 1994).
58 see, Johnson, supra note 57; Singleton, supra note 57.
102 	282 neBrAskA rePorTs

also proving the elements of unlawful act manslaughter. While
we adhere to Blockburger, and have attempted to abide by the
test as the U.s. supreme Court has applied it, we are mindful
of the fact that Blockburger is an aid to statutory interpreta-
tion, not a constitutional demand.59 We conclude that the bet-
ter application of Blockburger’s principles is that the possible
predicates of a compound offense should not be incorporated
into the offense when determining whether it contains elements
that another statute does not. And we so hold.
To hold otherwise would elevate formalism over the sub-
stance of constitutional protection and lead to anomalous
results. For instance, it is clear that however the elements of
the offenses are incorporated, a defendant could not be pun-
ished for both motor vehicle homicide and manslaughter based
on the same predicate unlawful act. nor could a defendant be
punished for two instances of either motor vehicle homicide or
manslaughter based on different predicate offenses, given that
the unit of prosecution for those offenses is the death of the
victim, not the predicate unlawful act.60 It would be peculiar,
then, if combining different predicates with different com-
pound offenses could achieve a result that neither the different
predicate offenses nor the different compound offenses could
achieve separately.
[7] And most fundamentally, this holding is most con-
sistent with the test first laid out in Blockburger: “whether
each 	provision 	requires 	proof 	of 	a 	fact 	which 	the 	other
does 	not.”61 Unlawful 	act 	manslaughter 	requires 	proof 	of
no fact which motor vehicle homicide does not. To con-
strue Whalen and the U.s. supreme Court’s other precedent
regarding compound and predicate offenses to permit multiple
convictions here would be to read Blockburger out of the
Blockburger test. so, we conclude that under Blockburger,
59 see, e.g., Garrett, supra note 34.
60 see, e.g., Brouillette, supra note 53; Garris v. United States, 465 A.2d 817
(D.C. 1983). Compare, e.g., U.S. v. Beltran-Moreno, 556 F.3d 913 (9th Cir.
2009); U.S. v. Phipps, 319 F.3d 177 (5th Cir. 2003) (discussing multiple
weapons convictions based on different predicate offenses).
61 Blockburger, supra note 10, 284 U.s. at 304.
sTATe v. hUFF 	103
Cite as 282 neb. 78

unlawful act manslaughter is a lesser-included offense of motor
vehicle homicide.
[8,9] 	We 	note, 	having 	reached 	that 	conclusion, 	that
Blockburger is not always dispositive of a double jeopardy
claim. Where a legislature specifically authorizes cumulative
punishment under two statutes, regardless of whether those
two statutes proscribe the same conduct under Blockburger,
cumulative punishment may be imposed in a single trial.62 But
there is no indication of such legislative intent here, and the
state does not argue that this principle is applicable. We are
aware that the enactment of 2011 neb. laws, l.B. 667, may
change this conclusion, but it does not take effect until January
1, 2012, so we do not address it here. We also note that double
jeopardy is implicated despite the fact that huff’s sentences on
the convictions at issue are to run concurrently; in Rutledge,
the Court held that “the collateral consequences of a second
conviction make it as presumptively impermissible to impose
as it would be to impose any other unauthorized cumula-
tive sentence.”63
[10-12] The remaining question is which conviction and
sentence should be vacated. huff argues that his conviction and
sentence for motor vehicle homicide should be vacated. huff
relies on the “timing of the ‘conviction’”64 and essentially asks
us to revisit our determination in Huff I that this case involves
a single prosecution.65 But matters previously addressed in an
appellate court are not reconsidered unless the petitioner pre-
sents materially and substantially different facts.66 Under the
law-of-the-case doctrine, the holdings of an appellate court on
questions presented to it in reviewing proceedings of the trial
court become the law of the case; those holdings conclusively
settle, for purposes of that litigation, all matters ruled upon,
62 see Missouri v. Hunter, 459 U.s. 359, 103 s. Ct. 673, 74 l. ed. 2d 535
(1983).
63 Rutledge, supra note 43, 517 U.s. at 302 (emphasis supplied).
64 Brief for appellant at 12.
65 Huff I, supra note 5.
66 State v. Gales, 269 neb. 443, 694 n.W.2d 124 (2005).
104 	282 neBrAskA rePorTs

either expressly or by necessary implication.67 The law-of-the-
case doctrine operates to preclude a reconsideration of substan-
tially similar, if not identical, issues at successive stages of the
same suit.68 our conclusion in Huff I that this case does not
involve successive prosecution is the law of the case, and we
decline to reconsider it.
[13,14] huff also asserts that motor vehicle homicide should
be considered the lesser-included offense to manslaughter,
arguing that the more general provision should yield to the
more specific and that motor vehicle homicide is the more
“specific” crime. But the principle that huff invokes is appli-
cable only when the requirements of different statutes conflict69
and has no relevance in this instance. Indeed, the merits of
huff’s double jeopardy claim rest on the fact that the statutes
at issue do not conflict. rather, the applicable rule is that
the “lesser offense” is the one for which fewer elements are
required to be proved.70 We are focused on the elements of
the offenses, and not comparison of the penalties.71 here, as
explained above, motor vehicle homicide is the greater offense
and unlawful act manslaughter the lesser-included offense. And
when a defendant is convicted of both a greater and a lesser-
included offense, the conviction and sentence on the lesser
charge must be vacated.72
In summary, we find merit to huff’s argument that he has
been subjected to multiple punishments, in violation of the
Double Jeopardy Clause, by his convictions and sentences
for motor vehicle homicide and manslaughter. But we find no
merit to his argument that the motor vehicle homicide convic-
tion should be vacated. Instead, it is his conviction and sen-
tence for manslaughter that must be vacated.
67 Id.
68 Id.
69 see, e.g., State v. Lobato, 259 neb. 579, 611 n.W.2d 101 (2000).
70 see, State v. Dragoo, 277 neb. 858, 765 n.W.2d 666 (2009); State v.
Gresham, 276 neb. 187, 752 n.W.2d 571 (2008).
71 see id.
72 Dragoo, supra note 70.
sTATe v. hUFF 	105
Cite as 282 neb. 78

motion to suppress
[15] next, huff argues that the court should have suppressed
evidence of his refusal to submit to a chemical test because
there was no DUI investigation to establish grounds for such
a test. A trial court’s ruling on a motion to suppress evidence,
apart from determinations of reasonable suspicion to conduct
investigatory stops and probable cause to perform warrantless
searches, is to be upheld on appeal unless its findings of fact
are clearly erroneous.73
According 	to 	huff, 	§ 	60-6,197(4) 	requires 	reasonable
grounds for an officer to demand a chemical test, and huff
contends that reasonable grounds were not established by lozo
or communicated to levisay before huff’s refusal of a blood
test. section 60-6,197(4) provides in part:
Any person involved in a motor vehicle accident in this
state may be required to submit to a chemical test of his
or her blood, breath, or urine by any peace officer if the
officer has reasonable grounds to believe that the person
was driving or was in actual physical control of a motor
vehicle on a public highway in this state while under
the influence of alcoholic liquor or drugs at the time of
the accident.
We note that huff appears to be conceding that reasonable sus-
picion is the appropriate standard, despite the fact that to arrest
him for suspicion of DUI, probable cause would have been
required.74 But regardless, huff’s argument is without merit.
[16] To begin with, if an officer has probable cause to arrest
a suspect for DUI and reasonable grounds to believe that the
suspect committed DUI, the officer may arrest the suspect and
require a blood test notwithstanding the fact that a prelimi-
nary breath test was not administered.75 And both reasonable
grounds and probable cause were established in this case. huff
was observed to have bloodshot, glassy eyes and difficulty
73 State v. Faber, 264 neb. 198, 647 n.W.2d 67 (2002).
74 see State v. Scheffert, 279 neb. 479, 778 n.W.2d 733 (2010).
75 see, State v. Orosco, 199 neb. 532, 260 n.W.2d 303 (1977), overruled on
other grounds, State v. Smith, 213 neb. 446, 329 n.W.2d 564 (1983); State
v. Cash, 3 neb. App. 319, 526 n.W.2d 447 (1995).
106 	282 neBrAskA rePorTs

standing. nearly everyone who had contact with huff that
night reported a strong odor of alcohol coming from him. We
have little difficulty in concluding that despite the lack of field
sobriety tests or a preliminary breath test, there was ample evi-
dence establishing probable cause to arrest huff and reasonable
grounds to demand a blood test.76
[17] nor are we persuaded by huff’s argument that lozo’s
purported failure to communicate his observations to levisay is
relevant. levisay made his own observations, independent from
lozo, that easily established reasonable grounds to demand a
blood test. And even had he not, we have explained that under
the collective knowledge doctrine, the existence of probable
cause justifying a warrantless arrest is tested by the collective
information possessed by all the officers engaged in a common
investigation.77
For instance, in State v. Wegener,78 an investigating officer
sent a driver to the hospital without conducting field sobriety
tests after the driver collided with a bridge guardrail. But the
driver smelled strongly of alcohol and had admitted that he had
been drinking. so when the investigating officer discovered
several beer bottles in the vehicle, he had another officer dis-
patched to the hospital to obtain a blood test. on appeal from
his conviction for DUI, the defendant argued that the blood
test should have been excluded because the second officer,
who actually arrested the defendant and obtained the blood
test, had not independently determined probable cause, nor had
the basis for probable cause been communicated to him. But
we rejected that argument, reasoning that under the collective
knowledge doctrine, an officer who does not have personal
knowledge of any of the facts establishing probable cause for
the arrest may nevertheless make the arrest if the arresting
officer is merely carrying out directions of another officer who
76 see, e.g., State v. Bishop, 224 neb. 522, 399 n.W.2d 271 (1987); State
v. Halligan, 222 neb. 866, 387 n.W.2d 698 (1986); State v. Fischer, 194
neb. 578, 234 n.W.2d 205 (1975).
77 see, State v. Wollam, 280 neb. 43, 783 n.W.2d 612 (2010); State v.
Wegener, 239 neb. 946, 479 n.W.2d 783 (1992).
78 Wegener, supra note 77.
sTATe v. hUFF 	107
Cite as 282 neb. 78

does have probable cause. so, we concluded that because the
investigating officer had probable cause to suspect the defend-
ant of DUI, the arrest and blood test initiated by the second
officer was valid.79
This case is functionally indistinguishable from Wegener.
Thus, even had levisay not made his own observations, lozo’s
investigation would have been sufficient to support arresting
huff and demanding a blood test. We find no merit to huff’s
argument that evidence of his refusal of a blood test should
have been suppressed.
enhAncement of refusAl conviction
[18] As noted above, huff’s conviction for refusal of a chem-
ical test was enhanced by two previous convictions for DUI.
huff argues that a refusal conviction can only be enhanced
by prior refusal convictions. This is a question of statutory
interpretation, which is a question of law on which we have an
obligation to reach an independent conclusion irrespective of
the determination made by the court below.80
huff relies on the nebraska Court of Appeals’ decision in
State v. Hansen,81 in which the Court of Appeals held that
when a judge is sentencing for a violation of the DUI statute,
the offense can be enhanced by prior DUI convictions, and that
when a judge is sentencing for refusal, the offense then before
the court can be enhanced, but only by prior refusal convic-
tions. We agree with the Court of Appeals.
[19] The punishment for both DUI and refusal of a chemi-
cal test is set forth in neb. rev. stat. § 60-6,197.03 (supp.
2009), which provides that convictions for DUI and refusal
may be enhanced by a “prior conviction.” But a “prior con-
viction” is defined by neb. rev. stat. § 60-6,197.02 (reissue
2010), which differentiates between convictions for DUI and
refusal. DUI is prohibited by § 60-6,196, DUI resulting in seri-
ous bodily injury is prohibited by neb. rev. stat. § 60-6,198
79 see id.
80 see State v. Tamayo, 280 neb. 836, 791 n.W.2d 152 (2010).
81 State v. Hansen, 16 neb. App. 671, 749 n.W.2d 499 (2008).
108 	282 neBrAskA rePorTs

(reissue 2010), and refusing a chemical test is prohibited by
§ 60-6,197. section 60-6,197.02(1) provides:
(a) Prior conviction means a conviction for a viola-
tion committed within the twelve-year period prior to
the offense for which the sentence is being imposed as
follows:
(i) For a violation of section 60-6,196:
(A) Any conviction for a violation of section 60-6,196;
(B) Any conviction for a violation of a city or vil-
lage 	ordinance 	enacted 	in 	conformance 	with 	section
60-6,196;
(C) Any conviction under a law of another state if, at
the time of the conviction under the law of such other
state, the offense for which the person was convicted
would have been a violation of section 60-6,196; or
(D) 	Any 	conviction 	for 	a 	violation 	of 	section
60-6,198; or
(ii) For a violation of section 60-6,197:
(A) Any conviction for a violation of section 60-6,197;
(B) Any conviction for a violation of a city or vil-
lage 	ordinance 	enacted 	in 	conformance 	with 	section
60-6,197; or
(C) Any conviction under a law of another state if, at
the time of the conviction under the law of such other
state, the offense for which the person was convicted
would have been a violation of section 60-6,197[.]
In other words, as the Court of Appeals correctly reasoned in
Hansen, a “prior conviction” for purposes of DUI enhance-
ment is defined in terms of other DUI laws, while a “prior
conviction” for purposes of enhancing a refusal conviction is
defined in terms of refusal laws. There is simply no crossover
between DUI and refusal convictions for purposes of sentence
enhancement.
[20,21] That may seem counterintuitive, because it could
create an incentive for an individual who has previously been
convicted of DUI to refuse a chemical test. But we have often
said that in reading a statute, a court must determine and give
effect to the purpose and intent of the legislature as ascer-
tained from the entire language of the statute considered in
sTATe v. hUFF 	109
Cite as 282 neb. 78

its plain, ordinary, and popular sense.82 And beyond that, a
fundamental principle of statutory construction requires that
penal statutes be strictly construed.83 We are not at liberty to
disregard the plain language of § 60-6,197.02, particularly to
construe it against the defendant. Therefore, we find merit to
huff’s assignment of error and conclude that he must be resen-
tenced on his conviction for refusing a chemical test.
testimony regArding huff’s invocAtion
of right to counsel
next, huff complains of two instances during lozo’s testi-
mony in which, according to huff, lozo violated the court’s
ruling on his motion in limine by referring to huff’s invoca-
tion of his right to counsel. First, lozo testified that while he
had been questioning huff at the scene of the accident, huff
had said that he would not answer questions until he had spo-
ken to an attorney. huff did not object to that testimony. But
later, lozo explained that one of the reasons that he had not
performed field sobriety tests was that huff had invoked his
right to counsel. huff objected and moved for a mistrial. The
court overruled the motion for mistrial, but did instruct the jury
that it was to consider that testimony solely for the purpose of
understanding why field sobriety tests had not been performed,
and not for any other purpose.
[22] huff contends that the court erred in not granting a
mistrial. The decision whether to grant a motion for mistrial
is within the discretion of the trial court and will not be dis-
turbed on appeal in the absence of an abuse of discretion.84
Because huff’s objection at trial was based upon his motion in
limine, we assume that the legal bases for his objection were
the same as that for his motion: constitutional grounds85 and
unfair prejudice.86
82 State v. Lasu, 278 neb. 180, 768 n.W.2d 447 (2009).
83 Id.
84 State v. Riley, 281 neb. 394, 796 n.W.2d 371 (2011).
85 see State v. Harms, 263 neb. 814, 643 n.W.2d 359 (2002).
86 see neb. evid. r. 403, neb. rev. stat. § 27-403 (reissue 2008).
110 	282 neBrAskA rePorTs

We address his constitutional argument first. The constitu-
tional basis for objecting to evidence of a defendant’s invoca-
tion of the right to counsel is set forth in the U.s. supreme
Court’s decision in Doyle v. Ohio87 and its progeny, which we
addressed at length in our decision in State v. Harms.88
[23] In Doyle, the U.s. supreme Court held that the state
may not “seek to impeach a defendant’s exculpatory story, told
for the first time at trial, by cross-examining the defendant about
his failure to have told the story after receiving Miranda[89]
warnings at the time of his arrest.”90 And in Wainwright v.
Greenfield,91 the Court explained that with respect to post-
Miranda warnings, “silence does not mean only muteness; it
includes the statement of a desire to remain silent, as well as of
a desire to remain silent until an attorney has been consulted.”
so it is apparent that requests for counsel, as well as actual
silence, constitute “silence” for purposes of analyzing potential
Doyle violations.92
[24] But in Wainwright, the Court also confirmed and iter-
ated its prior holdings in Jenkins v. Anderson93 and Fletcher v.
Weir,94 which determined that the state’s impeachment use of
a defendant’s pre-Miranda silence, whether prearrest or post-
arrest, is not unconstitutional.95 The Court explained that the
reasoning of Doyle and subsequent cases is that “it is funda-
mentally unfair to promise an arrested person that his silence
will not be used against him and thereafter to breach that
87 Doyle v. Ohio, 426 U.s. 610, 96 s. Ct. 2240, 49 l. ed. 2d 91 (1976).
88 see Harms, supra note 85.
89 see Miranda v. Arizona, 384 U.s. 436, 86 s. Ct. 1602, 16 l. ed. 2d 694
(1966).
90 Doyle, supra note 87, 426 U.s. at 611.
91 Wainwright v. Greenfield, 474 U.s. 284, 295 n.13, 106 s. Ct. 634, 88 l.
ed. 2d 623 (1986).
92 see Harms, supra note 85.
93 Jenkins v. Anderson, 447 U.s. 231, 100 s. Ct. 2124, 65 l. ed. 2d 86
(1980).
94 Fletcher v. Weir, 455 U.s. 603, 102 s. Ct. 1309, 71 l. ed. 2d 490 (1982).
95 see Harms, supra note 85.
sTATe v. hUFF 	111
Cite as 282 neb. 78

promise by using the silence to impeach his trial testimony.”96
so, in Harms, we declined the opportunity to expand the
Doyle and Wainwright protections to bar any use by the state
of a defendant’s prearrest, pre-Miranda silence.97
In the present case, it is not clear when huff was first
advised of his Miranda rights. huff was certainly advised of
his rights when he was arraigned in district court. Before then,
however, it is not clear that he was advised of his rights at all.
The record suggests that at the very least, he was not advised
of his rights before the sheriff’s deputy transported him from
the hospital to jail. lozo testified in minute-to-minute detail
about his interaction with huff at the scene of the accident,
but never said that he advised huff of his Miranda rights. And
levisay expressly denied reading Miranda warnings to huff at
any time.
In that respect, this case is functionally indistinguishable
from Fletcher, in which the Court treated the defendant’s
silence as pre-Miranda where the record did not indicate that
he had received any Miranda warnings after his arrest.98 In
other words, the Court held in Fletcher that a silent record was
fatal to the defendant’s Doyle claim.99 The same is true here.
The testimony at issue was, pursuant to the court’s limiting
instruction, admitted solely for the purpose of explaining why
field sobriety tests were not conducted. Given no evidence that
Miranda warnings had been given at the time of huff’s remark
and the limited purpose for which the evidence was admitted,
it is clear that no Doyle violation occurred.
[25,26] We also find no merit to the contention that the
testimony was unfairly prejudicial. Under rule 403, relevant
96 Wainwright, supra note 91, 474 U.s. at 292.
97 see Harms, supra note 85.
98 Fletcher, supra note 94.
99 see, id.; Branch v. Secretary, Fla. Dept. of Corrections, 638 F.3d 1353
(11th Cir. 2011); Folston v. Allsbrook, 691 F.2d 184 (4th Cir. 1982);
Coleman v. State, 111 nev. 657, 895 P.2d 653 (1995); People v Cetlinski,
435 Mich. 742, 460 n.W.2d 534 (1990); State v. Leecan, 198 Conn. 517,
504 A.2d 480 (1986).
112 	282 neBrAskA rePorTs

evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice.100 But only evi-
dence tending to suggest a decision on an improper basis is
unfairly prejudicial.101 And the exercise of judicial discretion is
implicit in determinations of prejudice under rule 403, so a trial
court’s decision under that rule will not be reversed absent an
abuse of discretion.102
In this case, it was evident from the pretrial proceedings that
huff intended to challenge the state’s failure to perform field
sobriety tests. We note, as an aside, that it is highly question-
able whether huff’s invocation of his right to counsel (or his
right to remain silent) would have legally precluded the admin-
istration of field sobriety tests or a preliminary breath test.103
nonetheless, it was appropriate to permit lozo to testify as to
huff’s invocation of his constitutional right to counsel for the
limited purpose of explaining one of the reasons why lozo
did not perform field sobriety tests. The jury was instructed to
consider the evidence only for that purpose, and we presume
that the jury followed the instructions it was given in arriving
at its verdict.104
[27] We have said that a defendant faces a higher threshold
than merely showing a possibility of prejudice when attempting
to prove error predicated on the failure to grant a mistrial.105
no such prejudice has been shown here. Finding no reversible
error in the legal determinations upon which the court’s over-
ruling of huff’s motion for mistrial was based, we also find no
abuse of discretion in overruling the motion. huff’s assignment
of error is without merit.
100 see § 27-403.
101 see State v. Daly, 278 neb. 903, 775 n.W.2d 47 (2009).
102 see State v. Davlin, 272 neb. 139, 719 n.W.2d 243 (2006).
103 see, Schmerber v. California, 384 U.s. 757, 86 s. Ct. 1826, 16 l. ed. 2d
908 (1966); State v. Newman, 250 neb. 226, 548 n.W.2d 739 (1996); State
v. Green, 229 neb. 493, 427 n.W.2d 304 (1988).
104 see id.
105 see Daly, supra note 101.
sTATe v. hUFF 	113
Cite as 282 neb. 78

sufficiency of evidence of witness tAmpering
[28] huff was convicted of tampering with a witness in vio-
lation of § 28-919(1), which provides:
(1) A person commits the offense of tampering with a
witness or informant if, believing that an official proceed-
ing or investigation of a criminal or civil matter is pend-
ing or about to be instituted, he or she attempts to induce
or otherwise cause a witness or informant to:
(a) Testify or inform falsely;
(b) Withhold any testimony, information, document,
or thing;
(c) elude legal process summoning him or her to tes-
tify or supply evidence; or
(d) Absent himself or herself from any proceeding
or investigation to which he or she has been legally
summoned.
huff’s conviction was based on the evidence that after the acci-
dent, he tried to persuade Markwardt to say that he, not huff,
had been driving. huff argues that this evidence was insuffi-
cient to sustain the conviction. In reviewing a sufficiency of the
evidence claim, whether the evidence is direct, circumstantial,
or a combination thereof, the standard is the same: An appel-
late 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.106
huff argues that the “element missing” in his witness tam-
pering conviction is proof that huff believed that an official
proceeding or investigation of a criminal or civil matter was
pending or about to be instituted.107 But Markwardt testified
that huff tried to persuade him to say he had been driving,
because huff did not want to “take the fall” for the accident.
Those remarks clearly imply an awareness that potentially
serious consequences could result from what had happened.
Markwardt’s testimony certainly supported huff’s conviction
for violating § 28-919(1).
106 State v. Edwards, 278 neb. 55, 767 n.W.2d 784 (2009).
107 Brief for appellant at 28. see § 28-919(1).
114 	282 neBrAskA rePorTs

huff’s primary contention seems to be that Markwardt was
not a credible witness. But the credibility and weight of wit-
ness testimony are for the trier of fact, and we do not reassess
witness credibility on appellate review.108 There was sufficient
evidence in this case for the trier of fact to find huff guilty of
witness tampering.
foundAtionAl testimony
huff’s sixth assignment of error is based on a foundational
objection he made to nipper’s testimony regarding his opinion
about determining huff’s blood alcohol level. When asked
by the court to be more specific about his objection, huff’s
counsel invoked Daubert/Schafersman109 principles in addi-
tion to “general foundation.” The court explained that huff
would need to articulate what part of nipper’s methodology
was suspect. The court said it wanted huff to advise the state
concerning “what he thinks is missing so that we can get to
the point of whether or not I’m going to let the witness testify
or not.” The court explained that it did not want to waste the
jury’s time, noting that had the objection been raised before,
it could have been handled at a pretrial hearing. huff reas-
serted Daubert/Schafersman, but did not object to the court’s
instruction to specifically explain the grounds for his founda-
tional objections. After nipper’s foundational testimony, huff’s
Daubert/Schafersman objection was overruled.
[29] huff now asserts that the court erred in handling huff’s
objection in the way it did. huff contends that his “substantial
legal right . . . to have a fair and meaningful adversarial pro-
ceeding was quashed by the trial judge directing [his] attorney
to instruct state’s counsel on how to properly question the
state’s expert.”110 huff concedes that he did not object at trial
on that basis, but contends the court committed plain error.
Plain error is error of such a nature that to leave it uncorrected
108 see State v. Archie, 273 neb. 612, 733 n.W.2d 513 (2007).
109 see, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.s. 579, 113
s. Ct. 2786, 125 l. ed. 2d 469 (1993); Schafersman v. Agland Coop, 262
neb. 215, 631 n.W.2d 862 (2001).
110 Brief for appellant at 31.
sTATe v. hUFF 	115
Cite as 282 neb. 78

would result in damage to the integrity, reputation, or fairness
of the judicial process.111
[30,31] We find no plain error on this issue, primarily
because we do not interpret the record in the way that huff
suggests. rather, in our view, the district court was simply
requiring huff to make a specific foundational objection, as he
was required to do. Under the principles set forth in Daubert
and Schafersman, the trial court acts as a gatekeeper to ensure
the evidentiary relevance and reliability of an expert’s opin-
ion.112 But to sufficiently call specialized knowledge into ques-
tion under Daubert and Schafersman is to object with enough
specificity so that the court understands what is being chal-
lenged and can accordingly determine the necessity and extent
of any pretrial proceeding.113 The initial task falls on the party
opposing expert testimony to sufficiently call into question the
reliability of some aspect of the anticipated testimony.114
[32] Assuming that the opponent has been given timely
notice of the proposed testimony, the opponent’s challenge to
the admissibility of evidence under Daubert and Schafersman
should take the form of a concise pretrial motion. It should
identify, in terms of the Daubert and Schafersman factors, what
is believed to be lacking with respect to the validity and reli-
ability of the evidence and any challenge to the relevance of the
evidence to the issues of the case. In order to preserve judicial
economy and resources, the motion should include or incorpo-
rate all other bases for challenging the admissibility, including
any challenge to the qualifications of the expert.115
In this case, huff did none of those things. The court would
not have abused its discretion had it simply overruled huff’s
objection for being insufficiently timely or specific. Instead,
the court demanded that huff make his objection with more
specificity, so that the state could address the basis of huff’s
111 State v. Sellers, 279 neb. 220, 777 n.W.2d 779 (2010).
112 State v. Casillas, 279 neb. 820, 782 n.W.2d 882 (2010).
113 Id.
114 State v. Mason, 271 neb. 16, 709 n.W.2d 638 (2006).
115 Casillas, supra note 112.
116 	282 neBrAskA rePorTs

objection and the court could determine the admissibility of
nipper’s opinion without wasting the jury’s time. Contrary to
huff’s argument, the court did not direct his counsel to “instruct
or educate the prosecutor [on] what was necessary to lay the
proper foundation for the state’s expert witness’s opinion”116—
rather, the court instructed huff on what was necessary to make
a proper objection to that opinion and, in so doing, inform the
state as to the basis for huff’s objection.
[33] A trial court has broad discretion in determining how
to perform its gatekeeper function.117 In this case, the court
did not abuse its discretion, much less commit plain error, in
requiring huff to make his foundational objection with the
required specificity. There is no principle of due process that
requires a court or party to guess at the basis for a general
foundational objection. Therefore, we find huff’s assignment
of error to be without merit.
lesser-included offense instruction
on motor vehicle homicide
[34] As noted above, motor vehicle homicide is a Class I
misdemeanor, unless the predicate act is, among other things,
DUI, in which case it is a Class III felony. huff argues that the
jury in this case should have been instructed on the predicate
act of speeding, in addition to DUI. Whether jury instructions
are correct is a question of law, which we resolve indepen-
dently of the lower court’s decision.118
huff’s argument is based on Beck v. Alabama,119 in which
the U.s. supreme Court explained the rationale for requiring
an instruction on a lesser-included offense in a death penalty
case when the evidence supports such an instruction. The Court
explained that
“if the prosecution has not established beyond a reason-
able doubt every element of the offense charged, and if
116 Brief for appellant at 33.
117 Daly, supra note 101.
118 State v. Miller, 281 neb. 343, 798 n.W.2d 827 (2011).
119 Beck v. Alabama, 447 U.s. 625, 100 s. Ct. 2382, 65 l. ed. 2d 392
(1980).
sTATe v. hUFF 	117
Cite as 282 neb. 78

no lesser offense instruction is offered, the jury must, as
a theoretical matter, return a verdict of acquittal. But a
defendant is entitled to a lesser offense instruction—in
this context or any other—precisely because he should
not be exposed to the substantial risk that the jury’s prac-
tice will diverge from theory. Where one of the elements
of the offense charged remains in doubt, but the defend-
ant is plainly guilty of some offense, the jury is likely to
resolve its doubts in favor of conviction.”120
huff argues that the jury could have concluded that he was not
under the influence of alcohol at the time of the accident, but
had been speeding. And, he claims, the jury was not given an
option that would be consistent with that finding.
But Beck is not applicable in this case. We note that it is
quite questionable, given the evidence, whether any rational
trier of fact could have found that huff was not under the
influence of alcohol. That aside, when the jury instructions are
considered as a whole, it is apparent that the jury was not con-
fronted with the “all or nothing” dilemma that the Court held
was impermissible in Beck.121
Instead of being instructed on “misdemeanor motor vehicle
homicide”122 as a lesser-included offense, the jury in this case
was instructed on manslaughter as a lesser-included offense.
The predicate act for the manslaughter instruction was speed-
ing. And the jury was instructed that it should proceed to the
manslaughter charge only if it acquitted huff of motor vehicle
homicide. Instead, he was found guilty of motor vehicle homi-
cide. We presume that the jury followed the step instruction
and did not consider the manslaughter offense after finding
that huff was guilty of motor vehicle homicide.123 And the
manslaughter instruction gave the jury an alternative had it
concluded that huff was not guilty of DUI, but guilty of
speeding as the unlawful act that caused Warner’s death, so
120 Id., 447 U.s. at 634 (emphasis in original).
121 see State v. Banks, 278 neb. 342, 771 n.W.2d 75 (2009).
122 see brief for appellant at 35.
123 see State v. Erickson, 281 neb. 31, 793 n.W.2d 155 (2011).
118 	282 neBrAskA rePorTs

the “all or nothing” dilemma addressed in Beck was not pres-
ent here.
[35] In an appeal based on a claim of an erroneous jury
instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant.124 huff has not
done so here. We need not determine whether, in an appropriate
case, a defendant might be entitled to an instruction based on a
lesser degree of motor vehicle homicide because, in this case,
huff was clearly not prejudiced by the denial.
excessive sentences
[36] Finally, huff argues that his sentences are excessive.
When a trial court’s sentence is within the statutory guide-
lines, the sentence will only be disturbed by an appellate court
when an abuse of discretion is shown.125 huff suggests that his
sentences are not “‘within’” the statutory limits because they
are at the maximum—so, huff claims, the sentencing is “at its
limit, not within it. To sentence in such a manner is an abuse
of discretion.”126
[37] huff seems to be suggesting that a maximum sentence
is, per se, an abuse of discretion. That suggestion is plainly
without merit. A sentence at the maximum limit is still within
that limit—it is only if the sentence exceeds the statutory limit
that it becomes “excessive” as a matter of law.127 We have often
said that the legislature declares the law and public policy
by defining crimes and fixing their punishment and that the
responsibility of the judicial branch is to apply those punish-
ments according to the nature and range established by the
legislature.128 We would be ignoring that principle were we to
conclude that the end of the legislatively established statutory
range was somehow “out of bounds” as a possible sentence.
124 Miller, supra note 118.
125 State v. Vasquez, 271 neb. 906, 716 n.W.2d 443 (2006).
126 Brief for appellant at 38.
127 see State v. Alba, 270 neb. 656, 707 n.W.2d 402 (2005).
128 State v. Lamb, 280 neb. 738, 789 n.W.2d 918 (2010).
sTATe v. hUFF 	119
Cite as 282 neb. 78

[38] huff also argues that the “nature of the offense here
is accidental”129 and that because huff did not intend to harm
anyone, the sentences are excessive. When imposing a sen-
tence, a sentencing judge should consider the defendant’s (1)
age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-
abiding conduct, and (6) motivation for the offense, as well as
(7) the nature of the offense, and (8) the violence involved in
the commission of the crime.130 so, the fact that huff may not
have specifically intended to harm anyone is a relevant consid-
eration in sentencing.
But in addition to the circumstances underlying this case, the
presentence report establishes a substantial foundation for the
sentences imposed. huff has a long criminal history, includ-
ing reckless driving, possession of drug paraphernalia, several
assaults, disturbing the peace, resisting arrest, attempted sexual
assault, multiple DUI convictions, several instances of driv-
ing under suspension, and many other traffic violations. And
a review of the presentence report suggests that huff has been
unwilling to accept responsibility for his conduct and less than
remorseful about its effects.
Given the evidence, it is apparent that the district court did
not abuse its discretion at sentencing.
ConClUsIon
For the foregoing reasons, we find merit to two of huff’s
assignments of error. First, we conclude that unlawful act man-
slaughter is a lesser-included offense of motor vehicle homi-
cide, and second, we conclude that prior convictions for DUI
cannot be used pursuant to §§ 60-6,197.02 and 60-6,197.03 to
enhance a defendant’s conviction for refusing a chemical test.
But we find no merit to huff’s remaining assignments of error.
huff’s convictions and sentences for motor vehicle homicide
and witness tampering are affirmed. huff’s conviction and
sentence for manslaughter are vacated. And finally, while
huff’s conviction for refusing a chemical test is affirmed,
129 Brief for appellant at 38.
130 Erickson, supra note 123.
120 	282 neBrAskA rePorTs

the sentence is vacated, and the district court is directed on
remand to resentence huff on that conviction consistent with
this opinion.
A ffirmed in pArt, And in pArt vAcAted
And remAnded for resentencing.
lAThAM v. sChWerDTFeGer 	121
Cite as 282 neb. 121
teri A. lAthAm , AppellAnt, v. susAn rAe
schwerdtfeger , Appellee .
802 n.W.2d 66
Filed August 26, 2011. 	no. s-10-742.
1. Child Custody: Visitation: Appeal and Error. Child custody determinations,
and visitation determinations, are matters initially entrusted to the discretion of
the trial court, and although reviewed de novo on the record, the trial court’s
determination will normally be affirmed absent an abuse of discretion.
2. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s granting of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from those facts and that the moving party is
entitled to judgment as a matter of law.
3. Standing: Jurisdiction. standing relates to a court’s power, that is, jurisdiction,
to address issues presented and serves to identify those disputes which are appro-
priately resolved through the judicial process.
4. Standing. Under the doctrine of standing, a court may decline to determine the
merits of a legal claim because the party advancing it is not properly situated to
be entitled to its judicial determination.
5. Standing: Jurisdiction. standing requires that a litigant have such a personal
stake in the outcome of a controversy as to warrant invocation of a court’s
jurisdiction and justify exercise of the court’s remedial powers on the liti-
gant’s behalf.
6. Standing: Claims: Parties. To have standing, a litigant must assert the litigant’s
own rights and interests.
7. Parent and Child: Words and Phrases. A person standing in loco parentis to
a child is one who has put himself or herself in the situation of a lawful parent
by assuming the obligations incident to the parental relationship, without going
through the formalities necessary to a legal adoption, and the rights, duties, and
liabilities of such person are the same as those of the lawful parent.
8. Parent and Child. The primary determination in an in loco parentis analysis is
whether the person seeking in loco parentis status assumed the obligations inci-
dent to a parental relationship.
9. Parent and Child: Intent. The assumption of the parental relationship is largely
a question of fact which should not lightly or hastily be inferred.