917 N.W.2d 164
Neb. Ct. App.2018Background
- On Aug. 31, 2016, Kevin W. Malone (driver of a Nissan) turned left on a red arrow into oncoming traffic on West Center Road and collided with Justin Hart’s motorcycle; Hart died of blunt trauma.
- Malone exited his vehicle, attempted mouth-to-mouth on the victim, re-entered his car, and drove away while the vehicle was smoking; witnesses identified and followed him; officer pursuit ensued.
- Officer observations and field sobriety tests indicated impairment; a Drug Recognition Expert (DRE) performed a 12-step exam, concluded Malone was impaired by central nervous system depressants (CNSDs) and cannabis, and Malone’s urine tested positive for four CNSDs (zolpidem, diphenhydramine, clonazepam, citalopram) and negative for cannabinoids; breath test showed no alcohol.
- Malone testified, admitted fault for the collision but denied impairment, claimed he was moving the car and panicked, and presented prescription labels and an expert who testified urine levels do not equate to blood impairment.
- Jury convicted Malone of motor vehicle homicide (Class II felony), manslaughter (Class IIA felony), leaving scene (Class III felony), and driving without ignition interlock (misdemeanor); court sentenced him within statutory limits (motor vehicle homicide: 40–50 years; manslaughter: 20 years; concurrent sentences).
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Malone) | Held |
|---|---|---|---|
| Sufficiency to convict of motor vehicle homicide (DUI/drugs proximate cause of death) | Evidence (officer observations, field tests, DRE opinion, urine positives, conduct at scene) shows Malone was under influence and proximate cause of death | Officer/DRE testimony inconsistent/unreliable; urine alone insufficient to prove impairment at time of crash | Conviction upheld — evidence sufficient when viewed in light most favorable to State |
| Sufficiency to convict of manslaughter (reckless driving) | Reckless conduct shown by driving impaired, turning on red into oncoming traffic, driving unauthorized vehicle without interlock, ignoring medication warnings | Malone argued he «slowly inched» into intersection, was not speeding or erratic, and mistakenly believed he had right-of-way | Conviction upheld — jury reasonably found recklessness given totality (impairment, red turn, disregard of warnings) |
| Trial court’s denial of judgment of acquittal / directed verdict | N/A (State opposed) | Malone argued court erred in denying motions at close of State’s case and close of all evidence | No reversible error; Malone waived challenge to directed verdict by presenting evidence and sufficiency challenge fails on review |
| Sentence excessive / judicial bias at sentencing | Sentences within statutory limits and court considered appropriate factors | Malone claimed abuse of discretion and personal bias due to court’s comments about prior sentencing | No abuse of discretion found; sentences affirmed |
Key Cases Cited
- State v. Mora, 298 Neb. 185 (Neb. 2017) (standard for sufficiency review and sentencing factors)
- State v. Dyer, 298 Neb. 82 (Neb. 2017) (appellate review of sentence; abuse of discretion standard)
- State v. Combs, 297 Neb. 422 (Neb. 2017) (motion for judgment of acquittal = directed verdict)
- State v. Burke, 23 Neb. App. 750 (Neb. Ct. App. 2016) (waiver rule for directed verdict when defendant presents evidence)
- State v. Rodriguez, 6 Neb. App. 67 (Neb. Ct. App. 1997) (same waiver principle)
- State v. France, 279 Neb. 49 (Neb. 2009) (credibility for jury; appellate courts do not reassess witness credibility)
- State v. Hudson, 268 Neb. 151 (Neb. 2004) (appellate limits on reweighing evidence)
- State v. Green, 238 Neb. 475 (Neb. 1991) (definition of recklessness for driving statute)