1. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact.
2. Criminal Law: Evidence. In reviewing a sufficiency of the evidence claim, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
3. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.
4. Drunk Driving: Words and Phrases. As used in Neb. Rev. Stat. § 60-6, 196 (Reissue 2008), the phrase "under the influence of alcoholic liquor or of any drug" requires the ingestion of alcohol or drugs in an amount sufficient to impair to any appreciable degree the driver's ability to operate a motor vehicle in a prudent and cautious manner.
5. Police Officers and Sheriffs: Drunk Driving: Witnesses. After sufficient foundation is laid, a law enforcement officer may testify that in his or her opinion, a defendant was driving under the influence.
6. Convictions: Drunk Driving: Evidence. Either a law enforcement officer's observations of a defendant's intoxicated behavior or the defendant's poor performance on field sobriety tests constitutes sufficient evidence to sustain a conviction of driving while under the influence of alcoholic liquor.
7. Criminal Law: Motions for Mistrial: Appeal and Error. A mistrial is properly granted in a criminal case where an event occurs during the[23 Neb.App. 658] course of a trial that is of such a nature that its damaging effect cannot be removed by proper admonition or instruction to the jury and thus prevents a fair trial.
8. Motions for Mistrial: Appeal and Error. The decision whether to grant a motion for mistrial will not be disturbed on appeal in the absence of an abuse of discretion.
9. Motions for Mistrial: Motions to Strike: Proof: Appeal and Error. Error cannot ordinarily be predicated on the failure to grant a mistrial if an objection or motion to strike the improper material is sustained and the jury is admonished to disregard such material. The defendant must prove that the alleged error actually prejudiced him or her, rather than creating only the possibility of prejudice.
10. Miranda Rights: Appeal and Error. Where the record does not indicate that a defendant received any Miranda warnings before remaining silent, an appellate court will treat the silence as occurring pre-Miranda.
11. Miranda Rights: Impeachment. The reading of Miranda rights is the key factor in determining whether the government can use a defendant's silence against him or her.
12. Miranda Rights: Impeachment: Due Process. Impeaching a defendant's version of the crime at trial by utilizing his or her postarrest, post-Miranda silence violates due process. In such a case, the implicit assurance that silence will carry no penalty renders it unfair to use the defendant's silence against him or her.
13. Miranda Rights: Impeachment. The prosecution may impeach the defendant on the stand by utilizing his or her silence occurring after arrest where the record does not reflect that he or she had been given Miranda warnings at the time.
14. Miranda Rights: Impeachment: Mental Competency. A defendant's postarrest, post-Miranda silence cannot be used as substantive evidence to refute the defendant's insanity defense.
15. Miranda Rights: Impeachment. The State may utilize a defendant's postarrest, pre-Miranda silence as substantive evidence of his or her guilt; the giving of Miranda is the key inquiry in determining when the State can utilize a defendant's silence.
16. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's age, mentality, education and experience, social and cultural background, past criminal record, and motivation for the offense, as well as the nature of the offense and the violence involved in the commission of the crime.
17. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in [23 Neb.App. 659] considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.
Appeal from the District Court for Lancaster County: John A. Colborn, Judge.
Joseph D. Nigro, Lancaster County Public Defender. Christopher Eickholt, and Nathan Sohriakoff for appellant.
Douglas J. Peterson, Attorney General, and Melissa R. Vincent for appellee.
Moore, Chief Judge, and Irwin and Inbody, Judges.