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State v. Montoya

Supreme Court of Nebraska

September 27, 2019

State of Nebraska, appellee,
v.
Carla Montoya, appellant.

         1. Constitutional Law: Motions to Suppress: Confessions: Miranda Rights: Appeal and Error. In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law enforcement procured it by violating the safeguards established by the U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), an appellate court applies a two-part standard of review. Regarding historical facts, an appellate court reviews the trial court's findings for clear error. Whether those facts meet constitutional standards, however, is a question of law, which an appellate court reviews independently of the trial court's determination.

         2. Statutes: Appeal and Error. Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.

         3. Constitutional Law: Statutes: Judgments: Appeal and Error. The constitutionality and construction of statutes are questions of law, regarding which appellate courts are obligated to reach conclusions independent of those reached by the court below.

         4. Trial: Convictions: Evidence: Appeal and Error. An appellate court will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support that conviction. In making this determination, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented, which are within a fact finder's province for disposition. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

         [304 Neb. 97] 5. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court.

         6. Miranda Rights. The warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), are required only when a suspect interrogated by the police is "in custody."

         7.__. The ultimate inquiry for determining whether a person is "in custody" for purposes of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.

         8.__. The test for custody under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is to be determined based on how a reasonable person in the suspect's situation would perceive his or her circumstances. It is an objective inquiry and does not depend on the subjective views harbored by either the interrogating officer or the person being interrogated.

         9.__. The test for determining custody under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), involves two discrete inquiries: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.

         10. Constitutional Law: Confessions. The 5th Amendment to the U.S. Constitution, along with the Due Process Clause of the 14th Amendment, prevents the use of involuntary confessions in criminal convictions.

         11. Miranda Rights. The question of whether a custodial interrogation complies with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), is distinct from the question of whether statements made during a custodial interrogation were sufficiently voluntary.

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

         13. Confessions. Whether a defendant's statement was voluntarily given depends on the totality of the circumstances. Factors to consider include the interrogator's tactics, the details of the interrogation, and any characteristics of the accused that might cause his or her will to be easily overborne.

         14. Confessions: Police Officers and Sheriffs. While the confession of an accused may be involuntary and inadmissible if obtained in exchange for a promise of leniency, mere advice or exhortation by the police that it would be better for the accused to tell the truth, when unaccompanied by either a threat or promise, does not make a subsequent confession [304 Neb. 98] involuntary. In order to render a statement involuntary, any benefit offered to a defendant must be definite and must overbear his or her free will.

         15. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         16. Criminal Law: Minors: Intent. Neb. Rev. Stat. § 28-707(1)(a) through (f) (Reissue 2016) defines the offense of child abuse. Then, § 28-707(3) through (8) classifies the level of any such offense based on two factors: the actor's state of mind when committing the offense and the degree of harm to the child resulting from the offense.

         17. Criminal Law: Minors: Intent: Proof. To convict a defendant of the Class IB felony of knowing and intentional child abuse resulting in death under Neb. Rev. Stat. § 28-707 (Reissue 2016), the State must prove the defendant knowingly and intentionally caused or permitted the child to be abused in one or more of the ways defined in § 28-707(1), and also must prove the offense resulted in the child's death, as required by § 28-707(8). It is not necessary, however, to prove the defendant intended the abuse to result in death.

         18. Statutes. It is not within the province of the courts to read a meaning into a statute that is not there or to read anything direct and plain out of a statute.

         19. Plea in Abatement: Evidence: Appeal and Error. An error in a ruling on a plea in abatement challenging whether there was sufficient evidence to bind a case over for trial is cured by a subsequent finding at trial of guilt beyond a reasonable doubt which is supported by sufficient evidence.

         20. Criminal Law: Evidence: Appeal and Error. When a criminal defendant challenges the sufficiency of the evidence upon which a conviction is based, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

         21. Constitutional Law: Statutes: Standing: Proof. Standing to challenge the constitutionality of a statute under the federal or state Constitution depends upon whether one is, or is about to be, adversely affected by the language in question. To establish standing, the contestant must show that as a consequence of the alleged unconstitutionality, the contestant is, or is about to be, deprived of a protected right.

         22. Constitutional Law: Statutes. Courts will not decide a question concerning the constitutionality of a statute unless such question has been [304 Neb. 99] raised by a litigant whose interests are adversely affected by the questioned statute.

         23. Constitutional Law: Statutes: Presumptions. Courts will presume a statute to be constitutional and will resolve all reasonable doubts in favor of its constitutionality.

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

         25. Constitutional Law: Criminal Law: Statutes. A penal statute must be construed so as to meet constitutional requirements if such can reasonably be done.

         26. Equal Protection. The Equal Protection Clause does not forbid classifications; it simply keeps governmental decision makers from treating differently persons who are in all relevant respects alike.

         27.__. When a classification created by state action does not jeopardize the exercise of a fundamental right or categorize because of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.

         28. Constitutional Law: Statutes: Legislature: Intent: Appeal and Error. Under rational basis review, an appellate court will uphold a classification created by the Legislature where it has a rational means of promoting a legitimate government interest or purpose. In other words, the difference in classification need only bear some relevance to the purpose for which the difference is made.

         29. Equal Protection: Proof. Under the rational basis test, whether an equal protection claim challenges a statute or some other government act or decision, the burden is upon the challenging party to eliminate any reasonably conceivable state of facts that could provide a rational basis for the classification.

         30. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.

         31. Constitutional Law: Statutes: Standing. The test for standing to assert a vagueness challenge is the same whether the challenge asserted is facial or as applied. To assert a claim of vagueness, a defendant must not have engaged in conduct which is clearly prohibited by the questioned statute. Furthermore, a defendant cannot maintain that the statute is vague when applied to the conduct of others, because a court will not examine the vagueness of the law as it might apply to the conduct of persons not before the court.

         [304 Neb. 100] 32. Sentences: Appeal and Error. Absent an abuse of discretion by the trial court, an appellate court will not disturb a sentence imposed within the statutory limits.

         33. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         34. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

         35. Sentences. In determining a sentence to be imposed, relevant factors customarily considered and applied are the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.

         36.__. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

          Appeal from the District Court for Madison County: James G. Kube, Judge.

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

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

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

          Stacy, J.

         Carla Montoya was convicted of knowing and intentional child abuse resulting in death, in violation of Neb. Rev. Stat. § 28-707(1) and (8) (Reissue 2016). She was sentenced to prison for a term of 55 to 75 years. Finding no merit to [304 Neb. 101] any of her assignments of error, we affirm her conviction and sentence.

         I. FACTS

         At approximately 1 a.m. on March 13, 2016, Montoya brought her 4'/4-year-old daughter, C.H., to the emergency room at Faith Regional Health Services (Faith Regional) in Norfolk, Nebraska. C.H. was unresponsive, tremoring, and posturing, and she had bruising on her body. A CT scan revealed bilateral bleeding between the brain and the skull. C.H. was "life-flighted" to Children's Hospital in Omaha, Nebraska, where she subsequently died from her injuries. The cause of death was blunt force trauma to the head.

         1. Police Investigation

         Shortly after C.H. was brought to the emergency room, staff there contacted police to report possible child abuse. The police conducted a series of three interviews with Montoya; two of those interviews occurred the same day that C.H. was taken to Faith Regional, and the third interview occurred the next day.

         (a) First Interview

         When police arrived at Faith Regional, an officer asked to speak with Montoya in a private area. They proceeded to a family waiting room where the officer questioned Montoya about how C.H. had sustained her injuries. This interview, which was recorded on the officer's body microphone, was suppressed by the trial court. That suppression ruling has not been challenged on appeal.

         (b) Second Interview

         Shortly after the first interview ended, the lead investigator, Josh Bauermeister, arrived at Faith Regional. After C.H. was life-flighted to Children's Hospital in Omaha, Bauermeister was introduced to Montoya and told her he wanted "to find out a little bit about what happened." He asked whether Montoya would allow police to search and photograph her apartment [304 Neb. 102] and whether she would give a recorded interview at the police station. Montoya agreed to both requests. Montoya's boyfriend then took officers to the apartment, and Montoya-who did not have a car available-rode with Bauermeister to the police station in the front seat of his unmarked patrol car.

         The recorded interview occurred in an interview room at the police station, and lasted about 1 hour. At the beginning of the interview, Bauermeister told Montoya that she was not under arrest, that she did not have to speak with him, and that she could leave at any time. Bauermeister also explained how to leave the police station from the interview room.

         During the interview, Montoya explained that around noon on March 12, 2016, she became frustrated that C.H. would not stay in her bed and would not stop crying, so she squeezed C.H.'s torso hard enough to leave marks and then threw C.H. onto her bed three times. Montoya said that C.H. struck her head on the wall the third time she was thrown. After that, C.H. fell asleep around 1 p.m. and slept until around 4 p.m., when she woke briefly before falling asleep again. Around 9 p.m., C.H. began to vomit. Montoya put C.H. into the bathtub to wash her off, but C.H. would not stand; Montoya described C.H.'s body as "Jell-O." Montoya said that when she turned on the cold water, C.H. became responsive and was able to answer questions. Montoya asked C.H. whether her head hurt, and C.H. answered yes. Montoya also asked whether C.H. wanted ice cream, and C.H. again answered yes.

         Montoya and her boyfriend put C.H. in the car to get some ice cream. They proceeded to drive several places with C.H., including to Montoya's mother's house, a grocery store, a discount department store, and a fast-food restaurant. When they returned home, C.H. was unresponsive. Montoya called a friend who convinced her to take C.H. to the hospital.

         At the end of the recorded interview, Bauermeister asked Montoya to write a statement summarizing her interview, and she complied. When Montoya finished writing out her three-page statement, she left the police station.

         [304 Neb. 103] Bauermeister subsequently obtained an arrest warrant, and Montoya was arrested at Children's Hospital in Omaha on March 14, 2016. She was transported to the downtown Omaha police station, where she was interviewed a third time.

         (c) Third Interview

         Montoya's third interview was conducted by Bauermeister on March 14, 2016, at 1:30 p.m. and lasted VA hours. Before questioning Montoya, Bauermeister spoke about the importance of telling the truth during the interview, saying, "Whatever you do today though, don't lie about it, because if you lie about anything or fail to tell me anything, it's going to look really bad for you when you go to court." Bauermeister also advised Montoya of her rights under Miranda v. Arizona[1] before questioning her. Throughout the interview, Bauermeister continued to emphasize the importance of being truthful. His statements in that regard are addressed more fully in our analysis of Montoya's assignment of error relating to the third interview.

         During the third interview, Montoya admitted she slammed C.H. into the wall as hard as she could and held her there. Montoya explained that she also pushed C.H. against the wall three or four times to stop her from getting away, all while screaming and yelling at her to "shut up" and to stop crying. Montoya said that C.H.'s head slammed into the wall and that Montoya pressed C.H. so hard against the wall that she worried it would break her ribs. Additionally, Montoya said that when she threw C.H. onto her bed, she did it forcefully and C.H. hit her head on the bedframe both the first and last time she was thrown. Montoya said she did not take C.H. to the hospital sooner, because she was afraid what people might think about the bruises and because she was in denial about hurting C.H. and was hoping she might recover.

         [304 Neb. 104] Toward the end of the third interview, Bauermeister asked Montoya to write out what happened, and she complied. Her written statement tracked generally with her statements to police during the interview.

         C.H. died from her injuries on March 20, 2016, after which the State charged Montoya with knowing and intentional child abuse resulting in death, a Class IB felony.[2]

         2. Pretrial Proceedings

         (a) Motions to Suppress

         Montoya moved to suppress all of her oral and written statements to police. She claimed she was in custody during all three interviews and argued her statements should be suppressed, because (1) in the first and second interviews, she was not advised of her Miranda rights, and (2) in the second and third interviews her will was overborne by coercive interrogation tactics.

         After a hearing, the trial court sustained in part and denied in part Montoya's motion to suppress. Regarding the first interview, the trial court sustained the motion to suppress, finding Montoya was in custody during police questioning at Faith Regional and should have received the Miranda advisement. As stated, the State has not challenged the suppression of the first interview.

         Regarding the second interview, the court found that under the totality of the circumstances, Montoya was not in custody and her statements were made freely and voluntarily. Regarding the third interview, the trial court found that the officer's interrogation tactics did not amount to improper threats, inducements, or lies and that Montoya's confession was freely and voluntarily made. The court thus overruled Montoya's motion to suppress as it regarded both the second and third interviews.

         [304 Neb. 105] (b) Plea in Abatement

         After the court ruled on Montoya's motion to suppress. Montoya was permitted to withdraw her plea of not guilty in order to file a plea in abatement challenging the sufficiency of the evidence to bind the case over to district court. In support of her plea in abatement, Montoya argued the State had not offered any evidence that she intended to kill C.H., and she suggested that a finding of guilt under § 28-707 requires the State to prove the defendant had specific intent to cause the resulting harm. The trial court rejected Montoya's interpretation of § 28-707, reasoning it was inconsistent with the plain language of the statute and with settled precedent from both this court[3] and the Nebraska Court of Appeals.[4] The trial court found the evidence offered at the preliminary hearing was sufficient to establish probable cause that Montoya committed the crime of intentional child abuse resulting in death under § 28-707, and it overruled the plea in abatement.

         (c) Motion to Quash

         Once the plea in abatement was overruled, Montoya filed a motion to quash the information. In support of the motion, Montoya argued that unless § 28-707 was construed to require proof that she intended to cause the resulting harm to the child, the statute would be unconstitutional, both facially and as applied. The trial court overruled the motion to quash, rejecting all of Montoya's facial constitutional challenges and reserving ruling on the as-applied challenges.

         3. Bench Trial and Sentencing

         After Montoya reentered a plea of not guilty, she waived her right to a jury and a bench trial was held. Montoya renewed her motion to suppress and her constitutional challenges to § 28-707, and the court overruled them. In an order entered [304 Neb. 106] February 1, 2018, the district court found beyond a reasonable doubt that

on March 12, 2016, [Montoya] knowingly and intentionally placed her minor child, [C.H.], in a situation that endangered that child's life, and that [Montoya] did knowingly and intentionally cruelly punish this child, which ultimately caused and resulted in the death of [C.H.] approximately one week later, on March 20, 2016. Additionally, the Court specifically finds that this offense was not committed negligently, nor did [Montoya] act recklessly. Her actions directed against the child . . . were intentional.

         Montoya was found guilty of intentional child abuse resulting in death, a Class IB felony. She was sentenced to an indeterminate prison term of 55 to 75 years. Montoya filed this timely appeal, which we moved to our docket.

         II. ASSIGNMENTS OF ERROR

         Montoya assigns, consolidated and restated, that the trial court erred in (1) overruling her motion to suppress, (2) overruling her plea in abatement, (3) overruling her motion to quash and rejecting her constitutional challenges, (4) finding her guilty of intentional child abuse resulting in death, and (5) imposing an excessive sentence.

         III. STANDARD OF REVIEW

         In reviewing a motion to suppress a statement based on its claimed involuntariness, including claims that law enforcement procured it by violating the safeguards established by the U.S. Supreme Court in Miranda, [5] an appellate court applies a two-part standard of review.[6] Regarding historical facts, an appellate court reviews the trial court's findings for clear error.[7]Whether those facts meet constitutional standards, however, is [304 Neb. 107] a question of law, which an appellate court reviews independently of the trial court's determination.[8]

         Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court's determination.[9]

         The constitutionality and construction of statutes are questions of law, regarding which appellate courts are obligated to reach conclusions independent of those reached by the court below.[10]

         An appellate court will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support that conviction.[11] In making this determination, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented, which are within a fact finder's province for disposition.[12] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.[13]

         An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of ...


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