Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/16/2018 09:11 AM CST




                                                         - 472 -
                                  Nebraska Supreme Court A dvance Sheets
                                          301 Nebraska R eports
                                                 STATE v. THOMPSON
                                                  Cite as 301 Neb. 472




                                         State of Nebraska, appellee, v.
                                        Benjamin M. Thompson, appellant.
                                                    ___ N.W.2d ___

                                         Filed November 2, 2018.   No. S-17-952.

                1.	 Judges: Recusal. A recusal motion is initially addressed to the discre-
                    tion of the judge to whom the motion is directed.
                2.	 Constitutional Law: Search and Seizure: Motions to Suppress:
                    Appeal and Error. In reviewing a trial court’s ruling on a motion to
                    suppress based on a claimed violation of the Fourth Amendment, an
                    appellate court applies a two-part standard of review. Regarding histori-
                    cal facts, an appellate court reviews the trial court’s findings for clear
                    error, but whether those facts trigger or violate Fourth Amendment pro-
                    tection is a question of law that an appellate court reviews independently
                    of the trial court’s determination.
                3.	 Appeal and Error. Plain error may be found on appeal when an error
                    unasserted or uncomplained of at trial, but plainly evident from the
                    record, prejudicially affects a litigant’s substantial right and, if uncor-
                    rected, would result in damage to the integrity, reputation, and fairness
                    of the judicial process.
                4.	 Trial: Judges: Words and Phrases. An ex parte communication occurs
                    when a judge communicates with any person concerning a pending or
                    impending proceeding without notice to an adverse party.
                5.	 Trial: Judges: Recusal. A judge who initiates or invites and receives
                    an ex parte communication concerning a pending or impending proceed-
                    ing must recuse himself or herself from the proceedings when a litigant
                    requests such recusal.
                6.	 Judges: Recusal. A judge should recuse himself or herself when a liti-
                    gant demonstrates that a reasonable person who knew the circumstances
                    of the case would question the judge’s impartiality under an objective
                    standard of reasonableness, even though no actual bias or prejudice
                    was shown.
                                    - 473 -
             Nebraska Supreme Court A dvance Sheets
                     301 Nebraska R eports
                            STATE v. THOMPSON
                             Cite as 301 Neb. 472

 7.	 Criminal Law: Appeal and Error. Harmless error jurisprudence rec-
     ognizes that not all trial errors, even those of constitutional magnitude,
     entitle a criminal defendant to the reversal of an adverse trial result.
 8.	 Convictions: Appeal and Error. It is only prejudicial error, that is,
     error which cannot be said to be harmless beyond a reasonable doubt,
     which requires that a conviction be set aside.
 9.	 Appeal and Error. When determining whether an alleged error is so
     prejudicial as to justify reversal, courts generally consider whether the
     error, in light of the totality of the record, influenced the outcome of
     the case.
10.	 Verdicts: Juries: Appeal and Error. Harmless error review looks to
     the basis on which the jury actually rested its verdict. The inquiry is
     not whether in a trial that occurred without the error, a guilty verdict
     would surely have been rendered, but whether the actual guilty verdict
     rendered was surely unattributable to the error.

  Appeal from the District Court for Douglas County: Gregory
M. Schatz, Judge. Affirmed in part, and in part vacated and
remanded for resentencing.
   Thomas C. Riley, Douglas County Public Defender, and Zoë
R. Wade for appellant.
   Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Heavican, C.J.
                      INTRODUCTION
   Benjamin M. Thompson was operating a motor vehicle in
which his three children were passengers. Thompson’s vehicle
was struck by another vehicle, resulting in severe injury to
two of the children. Following a jury trial, Thompson was
convicted of driving under the influence, fifth offense; two
counts of child abuse resulting in serious bodily injury; a
single count of child abuse; and leaving the scene of an
injury accident. Thompson now appeals from the district
court’s denial of several pretrial motions, including a motion
                                   - 474 -
               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
                            STATE v. THOMPSON
                             Cite as 301 Neb. 472

to recuse, a motion to suppress the results of his blood alco-
hol testing, and a Franks v. Delaware 1 motion to exclude the
results of his blood testing. We affirm Thompson’s convic-
tions, but vacate the sentences imposed and remand the cause
for resentencing.
                          BACKGROUND
   On October 24, 2016, at approximately 2 p.m., police and
medical personnel were dispatched to an injury accident near
the intersection of Sorensen Parkway and 30th Streets in
Omaha, Nebraska. One of the responding officers spoke to
Randall Plugge, who reported that he had been involved in the
accident. Plugge further reported that another vehicle, a white
Nissan, had also been involved in the accident, but had left the
scene and was heading north.
   Based on this information, an officer drove his cruiser
north on 30th Street, following a noticeable gouge mark
in the pavement, to a local park. The officer noted a white
Nissan automobile in the parking lot, heavily damaged, with
a man, later identified as Thompson, running from the Nissan
to a trash can. In making contact with Thompson, the officer
noted that Thompson’s hands were wet and that he smelled of
alcohol. Thompson was ordered to the ground, and was hand-
cuffed and arrested. An officer who later processed the scene
testified at trial that there were both full and empty hard alco-
hol and beer containers in the car and in the trash can. There
was also a bottle of lorazepam, prescribed to Thompson, in
the car.
   After being arrested, Thompson reported that his children
were in the Nissan. The officer observed three children in the
back seat: a 1-year-old, who was conscious and crying in a car
seat; a 6-year old, who was slumped over and unconscious;
and an 8-year-old, who was slumped over and unconscious and
bleeding from her chin, mouth, and head.

 1	
      Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667
      (1978).
                              - 475 -
           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                       STATE v. THOMPSON
                        Cite as 301 Neb. 472

   The three children were transported to the hospital. The
1-year-old was hospitalized for 2 days for trauma caused by
the collision. The 6-year-old was in intensive care for 3 days
and was diagnosed with a significant and “life-threatening”
head injury.
   The 8-year-old’s condition was worse than those of the
younger children. Her injuries were life-threatening and
required a breathing tube and ventilator. A monitor was
implanted in her brain to monitor swelling. One of her doctors
testified that on a “Glasgow Coma Score,” which scores range
from 3 to 15, with 3 being the worst, the child began as a 5,
but later regressed to a 3. He testified that 7 months’ postcrash,
her eyes were open, but she was unaware of her environment
and only “stare[s] off into space.” The doctor testified that the
child’s prognosis was poor and that she would probably never
fully recover, would need to be fed through a feeding tube,
and would wear diapers for the rest of her life.
   Law enforcement applied for and was issued a warrant to
obtain a blood draw from Thompson for purposes of deter-
mining his blood alcohol content. The sample tested at .115
gram of alcohol per 100 milliliters of blood. Thompson was
charged by information with driving under the influence, fifth
offense; child abuse; two counts of child abuse resulting in
serious bodily injury; and leaving the scene of an injury acci-
dent. Counsel filed three pretrial motions which are relevant
on appeal.
Motion to Recuse.
   Following his arrest, Thompson was incarcerated while
awaiting trial. He sought a furlough to visit his daughter in
the hospital, as her doctors testified that she was not likely to
survive. The State opposed the motion, noting both the seri-
ous nature of the child’s injuries—specifically, that she would
not recover and that life support was the only thing keeping
her alive—and the fact that those injuries were the result of
Thompson’s actions. After noting in the record that “in view
of the seriousness of the offense, that [Thompson] is charged
                              - 476 -
           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                       STATE v. THOMPSON
                        Cite as 301 Neb. 472

with a Class IIA Felony, ‘Which may, from what the prosecutor
tells me, change were this person to expire,’” the district court
denied the motion.
   Thompson subsequently filed a motion to recuse, basing
the motion on the district court’s statement that it was aware
that were the child to die, the State would amend the charges
against Thompson. Thompson’s counsel indicated that she,
counsel, was not present for any such communication with the
State and that the court could have discovered that intention
only as a result of an ex parte communication with the State.
At a hearing on the motion, the State offered into evidence an
affidavit from the deputy county attorney on the case, averring
that no communication on the matter alleged was had between
the State and the district court.
   Following the hearing, the district court denied the motion
to recuse, noting that even if the evidence was clear that such
a communication had taken place (and, the court implied,
such was not clear), that communication would not draw into
the question the court’s impartiality because of the facts of
this particular case: namely, that the accident was alleged
to have been caused by Thompson and that it was presumed
that had the child died, the State would amend the charges
accordingly.
Motion to Suppress and
Franks Motion.
   Thompson also filed a motion to suppress on March
23, 2017, and a motion seeking a hearing under Franks v.
Delaware on April 13; both seeking to suppress the blood
draw. The bases of the motion to suppress was Thompson’s
assertion that the affidavit accompanying the request for
the warrant did not contain sufficient information to estab-
lish probable cause and that it was so lacking in indicia of
probable cause as to make the good faith exception inappli-
cable. The basis of the Franks motion was that the affidavit
accompanying the request for a search warrant included false
statements made knowingly or intentionally or with reckless
                                     - 477 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                             STATE v. THOMPSON
                              Cite as 301 Neb. 472

disregard for the truth. A hearing was held on both motions.
On May 11, the district court denied both motions.
Trial.
   A 7-day jury trial was held in May 2017. At trial, the
State introduced evidence that Thompson had run a red light,
causing the accident. The State also introduced evidence that
Thompson admitted to drinking and offered further evidence
indicating that after the accident, Thompson drove his car
from the scene to a park. Following the trial, the jury found
Thompson guilty on all counts. Thompson appeals.
                ASSIGNMENTS OF ERROR
   Thompson assigns that the district court erred in denying
his motions to (1) recuse, (2) suppress blood test results, and
(3) exclude blood test results under Franks.
                   STANDARD OF REVIEW
   [1] A recusal motion is initially addressed to the discretion
of the judge to whom the motion is directed.2
   [2] In reviewing a trial court’s ruling on a motion to sup-
press based on a claimed violation of the Fourth Amendment,
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, but whether those facts trig-
ger or violate Fourth Amendment protection is a question of
law that an appellate court reviews independently of the trial
court’s determination.3
   [3] Plain error may be found on appeal when an error unas-
serted or uncomplained of at trial, but plainly evident from the
record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputa-
tion, and fairness of the judicial process.4

 2	
      State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
 3	
      State v. Taylor, 300 Neb. 629, 915 N.W.2d 568 (2018).
 4	
      State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018).
                                       - 478 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                              STATE v. THOMPSON
                               Cite as 301 Neb. 472

                            ANALYSIS
Motion to Recuse.
   In his first assignment of error, Thompson contends that the
district court erred in denying his motion seeking the recusal
of the district court as a result of an ex parte communication
with the prosecution.
   In this case, the district court concluded that it need not
recuse itself, because Thompson could not show prejudice even
if he could show that the alleged communication occurred.
We agree that this was not the correct framework to analyze
Thompson’s claim.
   [4,5] Thompson claimed that the district court and coun-
sel for the State engaged in an ex parte communication. An
ex parte communication occurs when a judge communicates
with any person concerning a pending or impending proceed-
ing without notice to an adverse party.5 A judge who initiates
or invites and receives an ex parte communication concern-
ing a pending or impending proceeding must recuse him-
self or herself from the proceedings when a litigant requests
such recusal.6
   [6] In addition to recusal based upon an ex parte commu-
nication, a judge should also recuse himself or herself when
a litigant demonstrates that a reasonable person who knew the
circumstances of the case would question the judge’s impar-
tiality under an objective standard of reasonableness, even
though no actual bias or prejudice was shown.7
   Because Thompson alleged an ex parte communication and
not bias or prejudice, the district court erred insofar as it found
Thompson could not show that the court was prejudiced. But
because Thompson failed to meet his burden to show that there
was an ex parte communication, there was still no error in the
district court’s decision to deny the motion to recuse.

 5	
      State v. Thomas, supra note 2.
 6	
      Id.
 7	
      Id.
                                     - 479 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                              STATE v. THOMPSON
                               Cite as 301 Neb. 472

   The district court’s statement that were the child to die, it
“presumed that the State would amend the charges . . . accord-
ingly,” was the primary basis of Thompson’s assertion of an
ex parte communication. But the prosecutor offered an affida-
vit stating that no ex parte communication occurred, and the
district court made no such finding either. While its finding
could have been more clear, implicit in the court’s order was
that it only “presumed” that the child’s death would result in
an amendment of the charges. There is no merit to Thompson’s
first assignment of error.
Suppression of Blood Test Results.
   In his second assignment of error, Thompson contends that
the affidavit supporting the issuance of the search warrant
allowing the blood draw did not establish probable cause. And
in his third and final assignment of error, Thompson assigns
that the district court erred in denying his motion to suppress
the blood draw based upon Franks v. Delaware.8
   We need not address the questions raised about the suppres-
sion of the blood draw under either the Fourth Amendment or
Franks, because we conclude that any admission of the blood
draw results was harmless error.
   [7,8] Harmless error jurisprudence recognizes that not all
trial errors, even those of constitutional magnitude, entitle a
criminal defendant to the reversal of an adverse trial result.9 It
is only prejudicial error, that is, error which cannot be said to
be harmless beyond a reasonable doubt, which requires that a
conviction be set aside.10
   [9,10] When determining whether an alleged error is so prej-
udicial as to justify reversal, courts generally consider whether
the error, in light of the totality of the record, influenced the
outcome of the case.11 In other words, harmless error review

 8	
      Franks v. Delaware, supra note 1.
 9	
      State v. Kidder, 299 Neb. 232, 908 N.W.2d 1 (2018).
10	
      Id.
11	
      Id.
                               - 480 -
            Nebraska Supreme Court A dvance Sheets
                    301 Nebraska R eports
                        STATE v. THOMPSON
                         Cite as 301 Neb. 472

looks to the basis on which the jury actually rested its verdict.12
The inquiry is not whether in a trial that occurred without the
error, a guilty verdict would surely have been rendered, but
whether the actual guilty verdict rendered was surely unattrib-
utable to the error.13
   In this case, there is a significant amount of evidence that
Thompson was under the influence. He fled from the scene
of the collision and stopped at a park, where an officer wit-
nessed him discarding both empty and full bottles of alcohol
and beer as his children sat injured in the back seat of his
vehicle. In addition, open beer cans and a bottle of whiskey
were found in that vehicle. Thompson admitted that he had
consumed a beer and two wine coolers about 2 hours before
the collision.
   Also in Thompson’s vehicle was a bottle containing 12
lorazepam pills. The label on the bottle indicated the prescrip-
tion had been filled 6 days earlier and directed Thompson to
take just one pill every 8 hours as needed. If taken as pre-
scribed, there should have been approximately 42 pills left in
the bottle. Thompson told officers at the time he was being
interviewed—several hours after the collision—that he was
still feeling the effects of the medications he had taken, which
included lorazepam and Lyrica.
   In addition, there was testimony that Thompson smelled of
alcohol, had bloodshot eyes, had slurred speech, and repeat-
edly said that he was not “‘fucked up’” at a time when offi-
cers were trying only to obtain biographical information for
him and his children. Moreover, Thompson gave inconsistent
explanations about where he was going at the time of the col-
lision. Thompson also gave inconsistent details about his home
address, variously indicating that he lived in Nebraska City,
Nebraska, and in Fort Calhoun, Nebraska, when in fact his
registered address was in Omaha.

12	
      Id.
13	
      Id.
                              - 481 -
           Nebraska Supreme Court A dvance Sheets
                   301 Nebraska R eports
                       STATE v. THOMPSON
                        Cite as 301 Neb. 472

   Officers also testified that Thompson showed impairment
during field sobriety tests. Though these tests might not have
been performed correctly by the officers, there was testimony
that the tests were still valid to identify signs of impairment.
Finally, officers testified that based upon their observations
over a 4-hour period, Thompson was intoxicated.
   There was an abundance of evidence offered that Thompson
was intoxicated. On these facts, any error in the admission
of the blood test results was harmless. There is no merit to
Thompson’s second or third assignments of error.
Plain Error in Sentencing.
   The State argued in its brief that the district court erred
in sentencing Thompson to license revocations for his con-
victions for counts 2, 3, and 5. At oral arguments, the State
further noted that it believed the district court erred in failing
to sentence Thompson to indeterminate sentences on counts 2
and 3.
   Thompson was sentenced for his convictions to 12 to 15
years’ imprisonment on count 1, driving under the influence,
a Class IIA felony; 3 years’ imprisonment on count 2, child
abuse resulting in serious bodily injury, a Class II felony;
3 years’ imprisonment on count 3, also the Class II felony
of child abuse resulting in serious bodily injury; 1 year’s
imprisonment on count 4, child abuse, a Class IIIA felony;
and 3 years’ imprisonment on count 5, leaving the scene of
a personal injury accident resulting in serious bodily injury,
a Class III felony. The district court additionally revoked
Thompson’s operator’s license in connection with his convic-
tions on counts 1, 2, 3, and 5.
   We turn first to the argument made by the State in its brief,
that the operator’s license revocations for the convictions on
counts 2 and 3 were plain error. We agree.
   Neb. Rev. Stat. § 60-6,197.03(9) (Cum. Supp. 2016) autho-
rizes a 15-year license revocation for driving under the influ-
ence, fifth offense, and Neb. Rev. Stat. § 60-698(2) (Cum.
Supp. 2016) authorizes the same for leaving the scene of a
                                     - 482 -
                Nebraska Supreme Court A dvance Sheets
                        301 Nebraska R eports
                              STATE v. THOMPSON
                               Cite as 301 Neb. 472

personal injury accident. But there is no authorization in state
law for such a revocation for child abuse convictions.14 We
therefore agree with the State that these revocations consti-
tuted plain error.
   We turn next to the State’s assertion at oral argument that
the determinate sentences imposed for counts 2 through 5
were not authorized. The basis for this contention is Neb. Rev.
Stat. §§ 29-2204 (Supp. 2017) and 29-2204.02 (Reissue 2016).
Section 29-2204 provides in relevant part:
         (1) Except when a term of life imprisonment is required
      by law, in imposing a sentence upon an offender for any
      class of felony other than a Class III, IIIA, or IV felony,
      the court shall fix the minimum and the maximum terms
      of the sentence to be served within the limits provided
      by law. The maximum term shall not be greater than the
      maximum limit provided by law, and:
         (a) The minimum term fixed by the court shall be any
      term of years less than the maximum term imposed by the
      court; or
         (b) The minimum term shall be the minimum limit
      provided by law.
And § 29-2204.02(4) provides:
      For any sentence of imprisonment for a Class III, IIIA,
      or IV felony for an offense committed on or after August
      30, 2015, imposed consecutively or concurrently with
      (a) a sentence for a Class III, IIIA, or IV felony for an
      offense committed prior to August 30, 2015, or (b) a sen-
      tence of imprisonment for a Class I, IA, IB, IC, ID, II, or
      IIA felony, the court shall impose an indeterminate sen-
      tence within the applicable range in section 28-105 that
      does not include a period of post-release supervision, in
      accord­ance with the process set forth in section 29-2204.
   We recently explained the distinction between determinate
and indeterminate sentences:

14	
      See Neb. Rev. Stat. § 28-707 (Reissue 2016).
                                   - 483 -
               Nebraska Supreme Court A dvance Sheets
                       301 Nebraska R eports
                            STATE v. THOMPSON
                             Cite as 301 Neb. 472

     A determinate sentence is imposed when the defendant
     is sentenced to a single term of years, such as a sentence
     of 2 years’ imprisonment. . . . In contrast, when impos-
     ing an indeterminate sentence, a sentencing court ordi-
     narily articulates either a minimum term and maximum
     term or a range of time for which a defendant is to be
     incarcerated. In Nebraska, the fact that the minimum
     term and maximum term of a sentence are the same
     does not affect the sentence’s status as an indeterminate
     sentence.15
   When read together and applied to these facts, §§ 29-2204(1)
and 29-2204.02(4) require Thompson to be sentenced to inde-
terminate sentences on all five counts. Under § 29-2204, a
defendant convicted of a Class IIA felony, as Thompson was
for driving under the influence, fifth offense, must be sen-
tenced to an indeterminate sentence. Thompson was sentenced
to 12 to 15 years’ imprisonment for driving under the influ-
ence, and thus, this sentence was correct.
   But the sentences imposed for Thompson’s convictions on
counts 2 and 3, both counts of child abuse resulting in seri-
ous bodily injury, a Class II felony, were not indeterminate as
required under § 29-2204.02; rather, Thompson was sentenced
to a determinate sentence of 3 years’ imprisonment for each
count. These sentences were plain error.
   Moreover, § 29-2204.02(4) provides that for “any sen-
tence of imprisonment for a Class III, IIIA, or IV felony . . .
imposed consecutively or concurrently with . . . a sentence of
imprisonment for a Class I, IA, IB, IC, ID, II, or IIA felony,
the court shall impose an indeterminate sentence within the
applicable range.” In count 4, Thompson was convicted of
child abuse, a Class IIIA felony, and was sentenced to a deter-
minate sentence of 1 year’s imprisonment. In count 5, he was
convicted of leaving the scene of a personal injury accident, a

15	
      State v. Artis, 296 Neb. 172, 179, 893 N.W.2d 421, 427-28 (2017),
      modified on denial of rehearing 296 Neb. 606, 894 N.W.2d 349.
                             - 484 -
          Nebraska Supreme Court A dvance Sheets
                  301 Nebraska R eports
                      STATE v. THOMPSON
                       Cite as 301 Neb. 472

Class III felony, and was sentenced to a determinate sentence
of 3 years’ imprisonment. But because these sentences were
imposed consecutively with Thompson’s Class II and Class
IIA felonies, these sentences should have also been indetermi-
nate. We therefore find plain error in these sentences.
   Given this plain error, we vacate Thompson’s sentences
for his convictions on counts 2 through 5 in their entirety and
remand those counts for resentencing.
                      CONCLUSION
   We vacate the sentences imposed for Thompson’s convic-
tions on counts 2 through 5 in their entirety. We otherwise
affirm the judgments and convictions of the district court and
remand this cause to the district court for resentencing on
counts 2 through 5.
	A ffirmed in part, and in part vacated
	                     and remanded for resentencing.
