State v. Lamb

further performance. There was no contract at that point for the
liquidator to disavow. In fact, during oral argument before this
court, counsel for the liquidator conceded that if the contracts
were breached before the liquidation order, “disavowal would
not become an issue.”
CONCLUSION
We conclude that Amwest breached its obligation to perfect
NetBank’s interests in the collateral. We also conclude that
Amwest does not have any meritorious defenses. We reverse,
and remand to the district court for proceedings consistent with
this opinion.
R eveRsed and Remanded.
state of nebRaska , appellee , v.
JeffRey a. lamb, appellant.
789 N.W.2d 918
Filed October 29, 2010. 	No. S-09-1201.
1. Courts: Appeal and Error. Both the district court and the Nebraska Supreme
Court generally review appeals from the county court for error appearing on
the record.
2. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal case from
the county court, the district court acts as an intermediate court of appeal, and as
such, its review is limited to an examination of the county court record for error
or abuse of discretion.
3. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
lower courts.
4. Statutes: Appeal and Error. Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to interpretation to ascertain
the meaning of statutory words which are plain, direct, and unambiguous.
5. Criminal Law: Sentences: Judgments. In a criminal case, entry of judgment
occurs with the imposition of a sentence.
6. Sentences: Probation and Parole: Appeal and Error. The imposition of the
sentence, absent the pendency of an appeal, concludes the “proceedings” referred
to in Neb. Rev. Stat. § 60-6,197.09 (Cum. Supp. 2008).
7. Standing: Words and Phrases. Standing is the legal or equitable right, title, or
interest in the subject matter of the controversy which entitles a party to invoke
the jurisdiction of the court.
738 	280N eBRASkAR epORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

8. Standing: Jurisdiction: Justiciable Issues. As an aspect of jurisdiction and
justiciability, 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 the exercise of the court’s remedial powers on the litigant’s behalf.
9. Constitutional Law: Statutes: Standing. Standing to challenge the constitution-
ality of a statute under the federal or state Constitution depends upon whether one
is, or is about to be, adversely affected by the language in question; to establish
standing, the contestant must show that as a consequence of the alleged unconsti-
tutionality, the contestant is, or is about to be, deprived of a protected right.
10. Investigative Stops: Search and Seizure. An investigative stopis limitedto brief,
nonintrusive detention during a frisk for weapons or preliminary questioning.
11. Investigative Stops: Police Officers and Sheriffs: Probable Cause. The test to
determine if an investigative stop was justified is whether the police officer had
a reasonable suspicion, based on articulable facts, which indicated that a crime
had occurred, was occurring, or was about to occur and that the suspect might
be involved.
12. ____: ____: ____. A stop is justified when an officer observes a traffic offense—
however minor.
13. Criminal Law: Police Officers and Sheriffs: Testimony: Corroboration. When
testimony regarding speed is used in connection with a charge other than speed-
ing, the officer’s testimony of speeding, if believed, is sufficient and need not
be corroborated.
14. Investigative Stops: Police Officers and Sheriffs: Probable Cause. Once a
vehicle is lawfully stopped, a law enforcement officer may conduct an investi-
gation reasonably related in scope to the circumstances that justified the traf-
fic stop.
15. ____: ____: ____. In order to continue to detain a motorist, an officer must have
a reasonable, articulable suspicion that the person is involved in criminal activity
beyond that which initially justified the stop.
16. Investigative Stops: Police Officers and Sheriffs: Drunk Driving: Probable
Cause. An officer is required to have only a reasonable, articulable suspicion that
a motorist was driving under the influence in order to expand the scope of the
initial traffic stop and detain him or her for field sobriety tests.
17. Investigative Stops: Police Officers and Sheriffs: Probable Cause. Whether
a police officer has a reasonable suspicion based on sufficient articulable facts
depends on the totality of the circumstances. Courts must determine whether
reasonable suspicion exists on a case-by-case basis.
18. Probable Cause: Words and Phrases. Reasonable suspicion entails some mini-
mal level of objective justification for detention. It is something more than an
inchoate and unparticularized hunch, but less than the level of suspicion required
for probable cause.
19. Trial: Convictions. A conviction in a bench trial of a criminal case is sustained if
the properly admitted evidence, viewed and construed most favorably to the State,
is sufficient to support that conviction.
20. Evidence: Appeal and Error. An appellate court does not resolve conflicts in the
evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh
the evidence presented, which are within a fact finder’s province for disposition.
STATe v.LA mB 	739
Cite as 280 Neb. 738

21. Convictions: Evidence: Appeal and Error. When reviewing a criminal convic-
tion for sufficiency of the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essen-
tial elements of the crime beyond a reasonable doubt.
22. Legislature: Criminal Law: Public Policy: Sentences: Courts. The Legislature
declares the law and public policy by defining crimes and fixing their punish-
ment. The responsibility of the judicial branch is to apply those punishments
according to the nature and range established by the Legislature.
23. Drunk 	Driving: 	Sentences: 	Probation 	and 	Parole. 	Neb. 	Rev. 	Stat.
§ 60-6,197.03(5) (Supp. 2007) provides for the possibility of a sentence of
probation.
Appeal from the District Court for Lancaster County, paul
d. meRRitt, JR., Judge, on appeal thereto from the County
Court for Lancaster County, lauRie yaRdley, Judge. Judgment
of District Court affirmed in part and in part reversed, and
cause remanded with directions.
Thomas R. Lamb, of Anderson, Creager & Wittstruck,p .C.,
for appellant.
Jon Bruning, Attorney General, ande rine . Tangeman for
appellee.
H eavican, c.J., connolly, G eRRaRd, stepHan, mccoRmack ,
and milleR-leRman, JJ., and cassel , Judge.
milleR-leRman, J.
NATURe OF THe CASe
Jeffrey A. Lamb, appellant, was arrested for driving under
the influence (DUI) in violation of Neb. Rev. Stat. § 60-6,196
(Reissue 2004).p rior to trial, Lamb filed a motion to quash in
the county court for Lancaster County in which he challenged
the constitutionality of Neb. Rev. Stat. § 60-6,197.09 (Cum.
Supp. 2008) on various bases, all to the effect that this statute
improperly prevented the trial court from imposing a sentence
of probation. The motion was denied. A subsequent motion
to suppress evidence of intoxication was also denied. Lamb
was convicted of DUI, second offense, and sentenced to 90
days’ incarceration, revocation of his license for 1 year, and a
$500 fine. The district court affirmed Lamb’s conviction and
740 	280N eBRASkAR epORTS

sentence. Lamb appeals. Because § 60-6,197.09, about which
Lamb complains, does not apply to him, we conclude that
Lamb does not have standing to challenge the constitutionality
of this statute. We further conclude that the district court did
not err when it affirmed Lamb’s conviction, and we affirm in
part. However, because neither the county court nor the district
court considered probation as a sentencing option, we find
error in connection with the sentence, and reverse the district
court’s order in part and remand the cause with directions to
the district court to vacate the sentence and remand the case to
the county court to resentence Lamb.
STATemeNT OF FACTS
On November 11, 2006, Lamb was stopped by an officer of
the Lincolnp olice Department inp ioneersp ark. The officer
stopped Lamb because Lamb had enteredp ioneersp ark after
the park was closed and Lamb appeared to be traveling in
excess of the speed limit. The officer approached the vehicle,
smelled the odor of alcohol, saw other signs of intoxication,
and asked Lamb to exit the vehicle for field sobriety tests. The
officer believed that Lamb was under the influence of alco-
hol. Lamb was arrested and transported to the Lincolnp olice
Department for a chemical breath test. The result of the test
was .20 of 1 gram of alcohol per 210 liters of breath, which
exceeded the legal limit. See § 60-6,196(1).
On December 4, 2006, a complaint was filed in the county
court for Lancaster County against Lamb for DUI, second
offense, in violation of § 60-6,196.
Lamb filed a motion to quash the complaint. In summary,
Lamb challenged the constitutionality of § 60-6,197.09 as
vague, overbroad, a denial of due process, and inconsistent
with other statutes. The essence of the challenge was that
§ 60-6,197.09 deprived him of an opportunity to be sentenced
to probation. Onm ay 23, 2007, the county court denied the
motion to quash. In its order, the county court incorporated
language from another trial level order which had found that
§ 60-6,197.09 was constitutional and applicable to a case simi-
lar to Lamb’s.
STATe v.LA mB 	741
Cite as 280 Neb. 738

Before trial, Lamb also filed a motion to suppress. The
county court held a hearing on the motion and ultimately
denied the motion to suppress.
A bench trial was held on February 27, 2008, and Lamb was
found guilty of DUI, second offense, by the county court on
February 28. The county court also found that Lamb’s breath
alcohol content was more than .15 of 1 gram of alcohol per 210
liters of breath, making the offense a Class I misdemeanor.
Onm ay 23, 2008, Lamb was sentenced to 90 days’ incarcer-
ation, revocation of his license for 1 year, and a $500 fine. At
the enhancement hearing, the State offered an exhibit, received
into evidence, which established that Lamb had been previ-
ously convicted of DUI in the county court for Saline County
on April 6, 2006, and was sentenced to 18 months’ probation
on July 18.
Lamb appealed his conviction and sentence in this case to
the district court for Lancaster County. On appeal, restated,
Lamb claimed that (1) § 60-6,197.09 as amended effective July
14, 2006, was unconstitutional; (2) the county court erred when
it denied his motion to quash; (3) the county court erred when
it denied his motion to suppress; (4) the judgment of convic-
tion was not supported by the evidence; and (5) the sentence
imposed was erroneous.
The district court affirmed the judgment of the county
court. The district court engaged in a constitutional analysis
of § 60-6,197.09, which is not necessary to repeat here. The
district court concluded that § 60-6,197.09 was not unconsti-
tutional and that the statutory language precluded a sentence
of probation and was applicable to Lamb’s case. The district
court rejected Lamb’s remaining assignments of error and thus
affirmed Lamb’s conviction and sentence.
Lamb appealed.
ASSIGNmeNTS OFe RROR
On appeal, Lamb claims, restated, that the district court
erred when it affirmed the orders of the county court which
had (1) denied Lamb’s motion to quash challenging the con-
stitutionality of § 60-6,197.09; (2) denied Lamb’s motion to
suppress; (3) found there was sufficient evidence to convict
742 	280N eBRASkAR epORTS

Lamb of DUI, second offense; and (4) imposed a sentence of
90 days’ incarceration, revocation of Lamb’s license for 1 year,
and a fine of $500.
STANDARDS OF ReVIeW
[1,2] Both the district court and the Nebraska Supreme
Court generally review appeals from the county court for error
appearing on the record. State v. Prescott, ante p. 96, 784
N.W.2d 873 (2010). In an appeal of a criminal case from the
county court, the district court acts as an intermediate court of
appeal, and as such, its review is limited to an examination of
the county court record for error or abuse of discretion. Id.
[3] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the lower courts. City of Falls City v. Nebraska
Mun. Power Pool, 279 Neb. 238, 777 N.W.2d 327 (2010).
ANALYSIS
Lamb Does Not Have Standing to Challenge
the Constitutionality of § 60-6,197.09.
At issue in this appeal is § 60-6,197.09, which provides:
Notwithstanding the provisions of section 60-498.02 or
60-6,197.03, a person who commits a violation punish-
able under subdivision (3)(b) or (c) of section 28-306 or a
violation of section 60-6,196, 60-6,197, or 60-6,198 while
participating in criminal proceedings for a violation of
section 60-6,196, 60-6,197, or 60-6,198 . . . shall not be
eligible to receive a sentence of probation, a suspended
sentence, or an employment driving permit authorized
under subsection (2) of section 60-498.02 for either viola-
tion committed in this state.
(emphasis supplied.)
Lamb claims that the district court erred when it affirmed the
county court’s denial of his motion to quash. In his motion to
quash, Lamb challenged the constitutionality of § 60-6,197.09
on various bases, all to the effect that § 60-6,197.09 improperly
prevented the trial court from imposing a sentence of probation
in this case because, according to Lamb, he was“ participating
STATe v.LA mB 	743
Cite as 280 Neb. 738

in criminal proceedings” for the prior DUI case in Saline
County when he committed the instant offense.
The State responds that Lamb does not have standing to
challenge the constitutionality of § 60-6,197.09. The State
refers us to the proposition that an individual who is not
affected by the challenged statute lacks standing to bring a con-
stitutional challenge thereto. See State v. Gales, 269 Neb. 443,
694 N.W.2d 124 (2005). The State notes that Lamb was on pro-
bation from the prior DUI case when he committed the current
offense. The State contends that, as a probationer, Lamb was
not “participating in criminal proceedings for a violation of
section 60-6,196 [the DUI statute],” as that expression is used
in § 60-6,197.09, at the time of the current offense, and that
therefore, § 60-6,197.09, which precludes a sentence of proba-
tion, does not apply to him. We agree with the State.
[4] Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. State v. Fuller, 278 Neb. 585,
772 N.W.2d 868 (2009). In reviewing the plain language of
§ 60-6,197.09, the portion relevant to the State’s standing argu-
ment provides that a person who commits DUI in violation of
§ 60-6,196 “while participating in criminal proceedings for a
violation of section 60-6,196 . . . shall not be eligible to receive
a sentence of probation.” The record shows that at the time that
Lamb was arrested for the present offense of DUI in viola-
tion of § 60-6,196, he was on probation for a prior violation
of § 60-6,196 in Saline County. The judgment of 18 months’
probation for the prior offense was entered on July 18, 2006,
and there is no suggestion that the judgment was appealed. The
current offense occurred on November 11, 2006. Accordingly,
to determine whether § 60-6,197.09 applies to this case, we
must determine whether a defendant who is serving a sentence
for a prior DUI when he or she commits a subsequent DUI
violation, absent the pendency of an appeal, is “participating in
criminal proceedings” for the prior DUI offense for purposes
of § 60-6,197.09.
[5,6] 	We 	have 	not 	previously 	explained 	“participating
in 	criminal 	proceedings” 	under 	§ 	60-6,197.09. 	However,
744 	280N eBRASkAR epORTS

elsewhere, we have addressed the definition of “proceeding”
and find such exposition useful in reading § 60-6,197.09. See
State v. Long, 264 Neb. 85, 645 N.W.2d 553 (2002). In Long,
we relied on the Black’s Law Dictionary 1221 (7th ed. 1999)
definition of “proceeding,” noting that “proceeding” had been
defined as “‘1. [t]he regular and orderly progression of a law-
suit, including all acts and events between the time of com-
mencement and the entry of judgment.’” 264 Neb. at 90, 645
N.W.2d at 559. In a criminal case, entry of judgment occurs
with the imposition of a sentence. See State v. Yos-Chiguil,
278 Neb. 591, 772 N.W.2d 574 (2009). Thus, the imposition
of the sentence, absent the pendency of an appeal, concludes
the “proceedings” referred to in § 60-6,197.09, and a defendant
is no longer “participating in criminal proceedings” after the
sentence is imposed.
In the instant case, Lamb was sentenced on July 18, 2006,
for the prior DUI. When Lamb committed the current offense
on November 11, he was serving a sentence for probation and
was not “participating in criminal proceedings” with respect to
the prior DUI. We conclude that § 60-6,197.09 did not apply
to Lamb, and he therefore does not have standing to challenge
the statute.
[7,8] Standing is the legal or equitable right, title, or inter-
est in the subject matter of the controversy which entitles a
party to invoke the jurisdiction of the court. Myers v. Nebraska
Invest. Council, 272 Neb. 669, 724 N.W.2d 776 (2006). Indeed,
as an aspect of jurisdiction and justiciability, 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 the exercise of the court’s remedial powers on the
litigant’s behalf. Lamar Co. v. City of Fremont, 278 Neb. 485,
771 N.W.2d 894 (2009).
[9] Standing to challenge the constitutionality of a statute
under the federal or state Constitution depends upon whether
one is, or is about to be, adversely affected by the language
in question; to establish standing, the contestant must show
that as a consequence of the alleged unconstitutionality, the
contestant is, or is about to be, deprived of a protected right.
State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005). In
STATe v.LA mB 	745
Cite as 280 Neb. 738

this case, Lamb was not, and was not about to be, adversely
affected by the language of the statute or deprived of a right
under § 60-6,197.09, because the language of the statute
did not apply to Lamb’s case. Accordingly, Lamb does not
currently have standing to challenge the constitutionality of
§ 60-6,197.09. We affirm the decision of the district court,
albeit for reasons other than those articulated by the district
court, which affirmed the order of the county court denying
Lamb’s motion to quash.
It Was Not Error for the District Court to Affirm
the Denial of Lamb’s Motion to Suppress.
Lamb claims that the district court erred when it affirmed
the county court’s denial of his motion to suppress. He argues
that the evidence presented at the hearing on the motion to sup-
press shows that there was a Fourth Amendment violation in
connection with the stop of his vehicle. We reject this assign-
ment of error.
[10] An investigative stop is “‘limited to brief, non-intrusive
detention during a frisk for weapons or preliminary question-
ing.’” State v. Van Ackeren, 242 Neb. 479, 486, 495 N.W.2d
630, 636 (1993), quoting United States v. Armstrong, 722 F.2d
681 (11th Cir. 1984). Therefore, while this type of encoun-
ter is considered a “seizure” and invokes Fourth Amendment
safeguards, because of its less intrusive character, this type of
encounter requires only that the stopping officer have specific
and articulable facts sufficient to give rise to reasonable sus-
picion that a person has committed or is committing a crime.
State v. Wollam, ante p. 43, 783 N.W.2d 612 (2010).
[11,12] The test to determine if an investigative stop was
justified is whether the police officer had a reasonable suspi-
cion, based on articulable facts, which indicated that a crime
had occurred, was occurring, or was about to occur and that
the suspect might be involved. See State v. Bowers, 250 Neb.
151, 548 N.W.2d 725 (1996). In addition, a stop is justified
“‘[w]hen an officer observes a traffic offense—however minor
. . . .’” State v. Chronister, 3 Neb. App. 281, 285, 526 N.W.2d
98, 103 (1995), quoting U.S. v. Cummins, 920 F.2d 498 (8th
Cir. 1990).
746 	280N eBRASkAR epORTS

[13] At the suppression hearing, the officer testified that he
was patrolling the area nearp ioneersp ark in Lincoln in his
marked police cruiser, when he observed a vehicle enter the
park after it was closed and further observed that the vehicle
was exceeding the posted speed limit. The officer stopped
Lamb’s vehicle. On this record, Lamb’s vehicle was stopped
based on the officer’s belief that Lamb had committed the
criminal activity of entering the park after it had closed and
speeding. When testimony regarding speed is used in connec-
tion with a charge other than speeding, the officer’s testimony
of speeding, if believed, is sufficient and need not be cor-
roborated. See State v. Prescott, ante p. 96, 784 N.W.2d 873
(2010). See, also, State v. Howard, 253 Neb. 523, 571 N.W.2d
308 (1997); State v. Hiemstra, 6 Neb. App. 940, 579 N.W.2d
550 (1998), disapproved on other grounds, State v. Trampe, 12
Neb. App. 139, 668 N.W.2d 281 (2003). We determine in this
case that the officer did not violate Lamb’s Fourth Amendment
rights when he stopped Lamb’s vehicle.
[14-18] Once a vehicle is lawfully stopped, a law enforce-
ment officer may conduct an investigation reasonably related in
scope to the circumstances that justified the traffic stop. State
v. Prescott, supra. In order to continue to detain a motorist, an
officer must have a reasonable, articulable suspicion that the
person is involved in criminal activity beyond that which ini-
tially justified the stop. Id. We have further held that an officer
is required to have only a reasonable, articulable suspicion that
a motorist was driving under the influence in order to expand
the scope of the initial traffic stop and detain him or her for
field sobriety tests. Id. Whether a police officer has a reason-
able suspicion based on sufficient articulable facts depends on
the totality of the circumstances. Id. Courts must determine
whether reasonable suspicion exists on a case-by-case basis.
Id. Reasonable suspicion entails some minimal level of objec-
tive justification for detention. Id. It is something more than an
inchoate and unparticularized hunch, but less than the level of
suspicion required for probable cause. Id.
Here, the officer who stopped Lamb’s vehicle did have a
reasonable, articulable suspicion to expand the scope of the
initial traffic stop. The officer testified that after stopping the
STATe v.LA mB 	747
Cite as 280 Neb. 738

vehicle, he approached the vehicle and observed that Lamb’s
movements were very deliberate and that Lamb had to con-
centrate on what the officer had asked Lamb to provide to
the officer. The officer further testified that he smelled the
odor of alcohol and that because he suspected alcohol use,
he asked Lamb to exit the vehicle to conduct field sobriety
tests. Based on Lamb’s performance on these tests, the offi-
cer believed that Lamb was under the influence of alcohol.
The officer arrested Lamb and transported him to the Lincoln
police Department.
Given the record, the officer properly stopped Lamb’s vehi-
cle and had a reasonable, articulable suspicion to expand the
scope of the stop to conduct field sobriety tests. The district
court did not err when it affirmed the county court’s denial of
Lamb’s motion to suppress.
The District Court Did Not Err When It Affirmed the
County Court’s Finding That the Evidence Was
Sufficient to Sustain Lamb’s Conviction.
Lamb claims that the evidence adduced at trial was insuffi-
cient to sustain a conviction for DUI and that the district court
erred when it affirmed the county court’s finding of guilt. We
reject this assignment of error.
[19-21] A conviction in a bench trial of a criminal case is
sustained if the properly admitted evidence, viewed and con-
strued most favorably to the State, is sufficient to support that
conviction. State v. Thompson, 278 Neb. 320, 770 N.W.2d 598
(2009). In making this determination, an appellate court does
not resolve conflicts in the evidence, pass on the credibility of
witnesses, evaluate explanations, or reweigh the evidence pre-
sented, which are within a fact finder’s province for disposition.
See id. When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question for
an appellate court is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. Id.
The evidence presented at trial established that Lamb had
been driving on a public roadway and that Lamb’s breath
748 	280N eBRASkAR epORTS

alcohol level was .20 of 1 gram of alcohol per 210 liters of
his breath. Lamb stipulated to these test results at trial. These
results exceed the legal limit. Lamb also stipulated to the fact
that the officer who administered the breath test was licensed
and followed the requirements of title 177 of the Nebraska
Administrative Code. Applying the standards set forth above to
the instant case, we conclude that the district court did not err
when it affirmed the county court’s finding that the evidence of
DUI was sufficient.
The District Court Erred When It Affirmed the
Sentence Imposed by the County Court.
Lamb claims that the district court erred when it affirmed
the sentence imposed by the county court. Lamb argues that,
given their understanding of § 60-6,197.09, the lower courts
did not consider probation a sentencing option and, as a result,
erred in imposing and affirming his sentence. We agree.
[22] It is fundamental that the Legislature declares the law
and public policy by defining crimes and “‘“‘fixing their
punishment.’”’” In re Petition of Nebraska Community Corr.
Council, 274 Neb. 225, 230, 738 N.W.2d 850, 854 (2007). We
have stated that “the responsibility of the judicial branch is
to apply those punishments according to the nature and range
established by the Legislature.” State v. Divis, 256 Neb. 328,
334, 589 N.W.2d 537, 541 (1999).
In this case, the county court denied Lamb’s motion to
quash and, in the order, incorporated the following language
from an order in an unrelated Lancaster County District Court
case dealing with a similar issue: “If any Defendant being
sentenced for DUI has been arrested for another DUI offense,
probation is not an option.” This order also states: “The statute
[§ 60-6,197.09] [a]ffects all Defendants standing convicted of
DUI at sentencing.” On appeal, the district court affirmed the
denial of the motion to quash and observed that § 60-6,197.09
eliminated the option of probation. When it affirmed the sen-
tence imposed by the county court, the district court considered
§ 60-6,197.09 applicable to Lamb’s case. The record indicates
that the lower courts erroneously determined probation was not
a sentencing option in this case and that the district court did
STATe v.LA mB 	749
Cite as 280 Neb. 738

not consider the imposition of probation in evaluating the pro-
priety of the sentence actually imposed.
Lamb 	was 	convicted 	of 	second-offense 	DUI 	with 	a
breath alcohol content of more than .15. Neb. Rev. Stat.
§ 60-6,197.03(5) (Supp. 2007) applies to this case. Section
60-6,197.03(5) provides:
If such person has had one prior conviction and, as part
of the current violation, had a concentration of fifteen-
hundredths of one gram or more by weight of alcohol
per one hundred milliliters of his or her blood or fifteen-
hundredths of one gram or more by weight of alcohol per
two hundred ten liters of his or her breath or refused to
submit to a test as required under section 60-6,197, such
person shall be guilty of a Class I misdemeanor, and the
court shall, as part of the judgment of conviction, revoke
the operator’s license of such person for a period of at
least one year but not more than fifteen years from the
date ordered by the court and shall issue an order pursu-
ant to section 60-6,197.01. Such revocation and order
shall be administered upon sentencing, upon final judg-
ment of any appeal or review, or upon the date that any
probation is revoked. The court shall also sentence such
person to serve at least ninety days’ imprisonment in the
city or county jail or an adult correctional facility.
If the court places such person on probation or sus-
pends the sentence for any reason, the court shall, as one
of the conditions of probation or sentence suspension,
order that the operator’s license of such person be revoked
or impounded for a period of at least one year but not
more than fifteen years from the date ordered by the court
unless otherwise authorized by an order issued pursuant
to section 60-6,211.05 and shall issue an order pursuant
to section 60-6,197.01, and such order of probation or
sentence suspension shall also include, as conditions, the
payment of a one-thousand-dollar fine and confinement in
the city or county jail for thirty days.
[23] We note the phrase “[i]f the court places such person
on probation” in the statute quoted immediately above. By
its terms, § 60-6,197.03(5) provides for the possibility of a
750 	280N eBRASkAR epORTS

sentence of probation in a case such as the present one, and as
discussed above, § 60-6,197.09 does not preclude the imposi-
tion of probation in the present case.
Notwithstanding the availability of probation, the State urges
this court to affirm the district court’s affirmance of Lamb’s
sentence. The State argues, inter alia, that because the sentence
actually imposed was suitable and did not exceed the statutory
limit, we should affirm. We decline to do so.
Given the fact that the lower courts did not consider proba-
tion an option, they failed in their duty to consider the statu-
torily available range of punishments. On appeal, we will not
attempt to “‘read the mind of the sentencing judge’” in an effort
to divine whether the sentencing judge would have imposed
probation had she known it was an available option. State v.
Clark, 278 Neb. 557, 563, 772 N.W.2d 559, 564 (2009).
The county court erred as a matter of law when it did not
consider probation at sentencing, and the district court erred
when it affirmed the sentence based on the same misperception
of the applicable law. We, therefore, reverse that portion of the
district court ruling which affirmed the sentence imposed by
the county court, and remand the cause with directions to the
district court to vacate the sentence and remand the case to the
county court for resentencing.
CONCLUSION
Lamb challenged the constitutionality of § 60-6,197.09.
However, because this statute did not apply to him, Lamb did
not have standing to challenge the constitutionality of this
statute. Although our reasoning differs from that of the district
court, we affirm the order of the district court which affirmed
the county court’s denial of Lamb’s motion to quash.We affirm
the district court’s order which affirmed the county court’s
denial of Lamb’s motion to suppress and affirmed the county
court’s finding that the evidence was sufficient to convict
Lamb of DUI, second offense. However, with respect to the
sentence imposed on Lamb, the county court and district court
incorrectly determined that § 60-6,197.09 precluded probation
and applied to Lamb; thus, the lower courts failed to consider
probation as a sentencing option. We reverse the portion of
STATe v.LA mB 	751
Cite as 280 Neb. 738

the order of the district court which affirmed the sentence,
and remand the cause with directions to the district court to
vacate the sentence and remand the case to the county court for
resentencing.
affiRmed in paRt, and in paRt ReveRsed
and Remanded witH diRections.
WRiGHt, J., not participating.
state of nebRaska , appellee , v.
Rodney l. bakeR, appellant.
789 N.W.2d 702
Filed October 29, 2010. 	No. S-09-1312.
1. Rules of Evidence. In proceedings where the Nebraskae vidence Rules apply, the
admissibility of evidence is controlled by the Nebraskae vidence Rules; judicial
discretion is involved only when the rules make such discretion a factor in deter-
mining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraskae vidence Rules
commit the evidentiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discretion.
3. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb.e vid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
and 27-404(2) (Reissue 2008), and the trial court’s decision will not be reversed
absent an abuse of discretion.
4. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings under the
residual hearsay exception, an appellate court reviews for clear error the factual
findings underpinning a trial court’s hearsay ruling and reviews de novo the
court’s ultimate determination to admit evidence over a hearsay objection.
5. Trial: Witnesses: Testimony: Appeal and Error. When the object of cross-
examination is to collaterally ascertain the accuracy or credibility of the witness,
some latitude should be permitted, and the scope of such latitude is ordinarily
subject to the discretion of the trial judge, and, unless abused, its exercise is not
reversible error.
6. Trial: Testimony: Appeal and Error. Determinations regarding cross-examination
of a witness on specific instances of conduct are specifically entrusted to the dis-
cretion of the trial court.
7. Rules of Evidence: Other Acts. Neb.e vid. R. 404(2), Neb. Rev. Stat. § 27-404(2)
(Reissue 2008), prohibits the admission of other bad acts evidence for the pur-
pose of demonstrating a person’s propensity to act in a certain manner.
752 	280N eBRASkAR epORTS