State v. Lewis

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. LEWIS
Cite as 319 Neb. 847
State of Nebraska, appellee, v.
Maylesha S. Lewis, appellant.
___ N.W.3d ___
Filed September 12, 2025. 	No. S-24-481.
1. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
a trial court’s ruling to admit or exclude an expert’s testimony for abuse
of discretion.
2. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favor-
ably to the State, is sufficient to support the conviction.
3. Double Jeopardy: Convictions: Appeal and Error. Whether two con-
victions result in multiple punishments for the same offense for double
jeopardy purposes presents a question of law, on which an appellate
court reaches a conclusion independent of the court below.
4. Proximate Cause. As a general matter, to say one event proximately
caused another is a way of making two separate but related assertions:
First, it means the former event caused the latter; second, it means that it
was not just any cause, but one with a sufficient connection to the result.
Appeal from the District Court for Douglas County: Peter
C. Bataillon, Judge. Affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Jessica C. West for appellant.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 08:07 AM CDT

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. LEWIS
Cite as 319 Neb. 847
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Papik, J.
After a traffic accident in which a passenger in her vehicle
was seriously injured, Maylesha S. Lewis was charged and
convicted of driving under the influence resulting in seri-
ous bodily injury. When the passenger later died, the State
charged Lewis again, this time with motor vehicle homicide
while operating a vehicle under the influence. Lewis took the
position that this subsequent prosecution violated her double
jeopardy rights. The district court agreed and dismissed the
prosecution, but we later found that, under the circumstances,
double jeopardy principles did not bar a successive pros-
ecution. See State v. Lewis, 313 Neb. 879, 986 N.W.2d 739
(2023), cert. denied ___ U.S. ___, 144 S. Ct. 175, 217 L. Ed.
2d 70 (Lewis I).
Back in the district court following our remand, Lewis was
tried, convicted, and sentenced on the motor vehicle homicide
charge. She now appeals. Among other challenges to her con-
viction, she argues that the district court should have vacated
her conviction and sentence on the ground that she has been
subjected to multiple punishments in violation of her double
jeopardy rights. We find no merit to Lewis’ arguments on
appeal and therefore affirm.
I. BACKGROUND
1. DUI/Serious Bodily Injury Prosecution
In October 2020, Lewis was charged with driving under the
influence resulting in serious bodily injury, a Class IIIA felony,
in violation of Neb. Rev. Stat § 60-6,198 (Reissue 2021). As
we did in Lewis I, we refer to the offense, for ease of refer-
ence, as “DUI/serious bodily injury.”

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. LEWIS
Cite as 319 Neb. 847
Lewis ultimately pled guilty. According to the State’s fac-
tual basis at the plea hearing, on October 11, 2020, Lewis
was operating a vehicle that left the roadway and collided
with a light pole. A passenger in that vehicle, Thomas Martin,
was severely injured in the collision. Lewis admitted she had
consumed alcohol and smoked marijuana before the colli-
sion. Chemical testing after the collision showed her blood
alcohol content was above the legal limit. The State recited
that Martin was transported from the collision scene with
“life-threatening” injuries. Martin remained hospitalized in
a non-medically-induced coma. The court accepted Lewis’
guilty plea and set the matter for sentencing.
Lewis was sentenced to 30 months’ incarceration followed
by 18 months of post-release supervision, as well as a 5-year
license revocation with the option of applying for an ignition
interlock device “[a]s soon as allowed by law.” On the date
Lewis was sentenced, Martin remained hospitalized in a per-
sistent vegetative state.
Martin died several months later in June 2021.
2. Motor Vehicle Homicide/DUI Charge
In December 2021, the State charged Lewis in the district
court with “motor vehicle homicide (DUI/ODR),” a Class
IIA felony, in violation of Neb. Rev. Stat. § 28-306(1) and
(3)(b) (Reissue 2016). As in Lewis I, we refer to this offense,
for ease of reference, as “motor vehicle homicide/DUI.” The
information alleged that Lewis caused the death of Martin
while engaged in the unlawful operation of a motor vehicle
while under the influence in violation of Neb. Rev. Stat.
§ 60-6,196 (Reissue 2021).
Lewis filed a plea in bar, which the district court sustained.
The district court applied the test from Blockburger v. United
States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932). It
found that the crimes of DUI/serious bodily injury and motor
vehicle homicide/DUI were the “same offense” for double
jeopardy purposes.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. LEWIS
Cite as 319 Neb. 847
3. Exception Proceedings
The district court granted the State’s request for leave to
docket exception proceedings pursuant to Neb. Rev. Stat.
§ 29-2315.01 (Cum. Supp. 2024), and the State filed a timely
notice of appeal. We granted the State’s petition to bypass the
Nebraska Court of Appeals.
The State argued on appeal that the district court erred
in relying on the Blockburger test to analyze Lewis’ double
jeopardy claim. Our analysis observed that Blockburger sets
forth what is known as the same elements test—the general
rule that “where the same act or transaction constitutes a viola-
tion of two distinct statutory provisions, the test to be applied
to determine whether there are two offenses or only one, is
whether each provision requires proof of a fact which the other
does not.” 284 U.S. at 304. However, we recognized that Diaz
v. United States, 223 U.S. 442, 32 S. Ct. 250, 56 L. Ed. 500
(1912), articulated an exception to the general double jeopardy
rule forbidding successive prosecution for a greater offense
after prosecuting a lesser-included offense. We joined other
jurisdictions that apply the Diaz exception and held:
[D]ouble jeopardy principles do not bar a successive pros-
ecution in those situations where the State was unable to
proceed on the more serious charge at the outset because
the additional facts necessary to sustain that charge had
not yet occurred at the time of the prosecution for the
first offense.
The Diaz exception applies here. At the time Lewis
was charged and convicted for DUI/serious bodily injury,
Martin was seriously injured but still alive. Because
Martin’s death was a necessary element of the offense of
motor vehicle homicide/DUI, the State was not able to
bring the more serious charge at the time it prosecuted
Lewis for DUI/serious bodily injury. Under Diaz, double
jeopardy permits the State to prosecute Lewis for the
more serious offense of motor vehicle homicide/DUI,

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. LEWIS
Cite as 319 Neb. 847
despite having previously convicted her of DUI/serious
bodily injury.
Lewis I, 313 Neb. at 889, 986 N.W.2d at 746.
We concluded that, under the circumstances, it was appro-
priate under Neb. Rev. Stat. § 29-2316 (Reissue 2016) to
reverse the district court’s order granting the plea in bar and
to remand the cause of further proceedings.
4. Motor Vehicle Homicide/DUI Trial
On remand, the district court conducted a bench trial on the
motor vehicle homicide/DUI charge.
Regarding Martin’s condition, the State presented the tes-
timony of Dr. Robert Bowen, a pathologist. He explained
that pathology is the study of disease processes and testified
that he occasionally reviewed case files concerning cause of
death. Bowen was not involved with Martin’s medical care,
but he reviewed Martin’s medical records dating from the
day of the crash on October 11, 2020, to Martin’s death in
June 2021.
Bowen testified that Martin’s medical records showed he
was initially treated for a laceration to the head, a skull frac-
ture, severe brain injuries, and brain materials “extrud[ing]
into” his sinuses. Bowen observed that when Martin arrived
at the hospital emergency room, medical staff performed a
craniotomy to remove blood from the brain and introduced
a breathing tube and a feeding tube because Martin was not
able to breathe or eat on his own. Bowen testified that in
November 2020, Martin was discharged from the hospital and
transferred to a rehabilitation center. However, after Martin
began leaking fluid from his sinuses, running a fever, and
throwing up, he was readmitted to the hospital in December
2020. He was eventually transferred to a rehabilitation center
again but had to be readmitted to the hospital in February
2021 due to “neuro storms” caused by his ongoing brain
trauma. Martin was later transferred to a rehabilitation center;
in April 2021, however, he returned to a hospital for treatment

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. LEWIS
Cite as 319 Neb. 847
because he had developed persistent pneumonia and his brain
was shrinking. Bowen testified that at the hospital, Martin
was diagnosed with paralysis of the stomach. He was again
transferred to a rehabilitation center in June 2021, where he
developed sepsis—bacteria in his bloodstream signifying that
his body was failing. Bowen testified that shortly thereafter,
it was determined that further medical interventions would
be futile; Martin was placed in a hospice facility for comfort
care where he died on June 17, 2021, about 8 months after
the accident.
Over Lewis’ objection, Bowen testified that the injuries
Martin sustained in the collision were the proximate cause of
his death:
Q. . . . And what is your opinion, Dr. Bowen, as it
relates to Thomas Martin’s cause of death on June 17
of 2021?
[Counsel for Lewis:] Objection, foundation, specula-
tion, no personal knowledge, Your Honor.
THE COURT: I’m going to sustain as to foundation.
Just have him set forth what the basis of his opinion is.
. . . .
Q. . . . Your opinion as to the cause of Thomas Martin’s
death as it relates to that motor vehicle collision, what’s
that based on?
A. Based on my review of the medical records and my
personal experience.
. . . .
Q. And what is your opinion as it relates to the
cause of death from the motor vehicle collision for
Thomas Martin?
[Counsel for Lewis:] Objection.
THE COURT: Overruled.
A. In my opinion, the cause of death is directly related
to the trauma to his head, and so the cause of death would
be blunt force trauma to the head.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. LEWIS
Cite as 319 Neb. 847
Q. . . . And that relates to that motor vehicle collision
October 11, 2020?
A. That’s correct.
The district court received Martin’s death certificate, which
was a form completed by a nurse. The form defined the
deceased’s “immediate cause of death” as the “[f]inal disease
or condition resulting in death.” Martin’s death certificate
listed his immediate cause of death as “Sepsis,” due to or
as a consequence of “Ischemic Bowel” and “Small Bowel
Obstruction.” The death certificate noted, “History Traumatic
Brain 	Injury, 	Tracheotomy” 	as 	“OTHER 	SIGNIFICANT
CONDITIONS—Conditions contributing to the death but not
resulting in the underlying cause.” The form had a section to
provide details if the death was caused by a transportation
injury, but that section was left blank.
On cross-examination, Bowen acknowledged that he was
not directly involved in Martin’s care, that an autopsy was
not performed on Martin, and that his death certificate listed
the causes of death as “Sepsis,” due to “Ischemic Bowel” and
“Small Bowel Obstruction.” On redirect, however, Bowen
explained that the cause of death listed on the death certificate
did not change his opinion about Martin’s cause of death. He
testified that the conditions referenced by the hospice nurse
in the death certificate were the conditions Martin was suf-
fering from at the time of his death. Over Lewis’ foundation
objections, which she based on the premise that Bowen was
not involved in Martin’s care, Bowen opined that the condi-
tions referenced in the death certificate were caused by the
collision. Bowen reiterated that, in his opinion, the traumatic
brain injury was the proximate cause of these conditions that
led to Martin’s death.
The district court found Lewis guilty of motor vehicle
homicide/DUI.
5. Verdict and Sentencing on Remand
Lewis subsequently filed a motion to vacate her con-
viction. She alleged that DUI/serious bodily injury is a

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. LEWIS
Cite as 319 Neb. 847
lesser-included 	offense 	of 	motor 	vehicle 	homicide/DUI,
because the State would have to prove the elements of
the lesser offense to prove the greater offense. Therefore,
Lewis asserted, punishment for motor vehicle homicide/
DUI would be an impermissible cumulative punishment in a
separate and successive action, in violation of double jeop-
ardy protections.
Following a hearing, the district court overruled the motion
to vacate. It found our opinion in Lewis I dispositive on the
issue. The district court reasoned that because Lewis I estab-
lished that double jeopardy was not violated by the subsequent
prosecution for motor vehicle homicide/DUI, a sentence for
that offense would be appropriate.
At the sentencing hearing, just prior to imposing the sen-
tence, the district court mentioned that Lewis had already
been sentenced to a term of imprisonment and post-release
supervision for serious bodily injury/DUI. It also noted that
this was “a very unusual case because of the issues of double
jeopardy.” The district court then sentenced Lewis for motor
vehicle homicide/DUI to 48 months’ probation, with terms
and conditions that included a 3-year revocation of Lewis’
driver’s license. The district court ordered this sentence to
run concurrently with any other sentence being served at
that time.
Lewis again moved to vacate the judgment after sentencing
on the theory that double jeopardy protections prohibited it.
The district court overruled the motion.
Lewis filed a timely appeal.
II. ASSIGNMENTS OF ERROR
Lewis assigns that the district court erred in (1) admitting
Bowen’s opinion about Martin’s cause of death; (2) overrul-
ing her motions to dismiss and for directed verdict, which she
based on the theory that there was insufficient evidence her
unlawful conduct caused Martin’s death; and (3) overruling

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. LEWIS
Cite as 319 Neb. 847
Lewis’ motions to vacate her conviction and sentence on the
ground that they violate her double jeopardy rights.
III. STANDARD OF REVIEW
[1] An appellate court reviews a trial court’s ruling to admit
or exclude an expert’s testimony for abuse of discretion. State
v. Woolridge-Jones, 316 Neb. 500, 5 N.W.3d 426 (2024).
[2] Regardless of whether the evidence is direct, circum-
stantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insuf-
ficiency of the evidence, or failure to prove a prima facie
case, the standard is the same: In reviewing a criminal con-
viction, 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, and a convic-
tion will be affirmed, in the absence of prejudicial error, if the
evidence admitted at trial, viewed and construed most favor-
ably to the State, is sufficient to support the conviction. State
v. Hassan, 309 Neb. 644, 962 N.W.2d 210 (2021).
[3] Whether two convictions result in multiple punishments
for the same offense for double jeopardy purposes presents a
question of law, on which an appellate court reaches a conclu-
sion independent of the court below. State v. Ballew, 291 Neb.
577, 867 N.W.2d 571 (2015).
IV. ANALYSIS
1. Cause of Death Testimony
Lewis mounts two challenges on appeal related to Bowen’s
testimony that the collision caused Martin’s death. First, she
claims that Bowen’s opinion on that point was inadmissible.
Second, she contends that Bowen’s testimony was insufficient
to establish that her unlawful conduct caused Martin’s death.
We find both arguments lack merit.
(a) Admissibility
We first address the issue of admissibility. Lewis pinpoints
Bowen’s testimony concerning Martin’s cause of death, quoted

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Nebraska Supreme Court Advance Sheets
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STATE v. LEWIS
Cite as 319 Neb. 847
above. Lewis argues that the district court abused its discretion
in allowing Bowen to give that expert testimony.
Martin’s cause of death was a fact in issue in the prosecu-
tion for motor vehicle homicide/DUI, see § 28-306(1), and the
State called Bowen to testify as an expert on that issue. Expert
testimony is governed by Neb. Rev. Stat. § 27-702 (Reissue
2016): “If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education, may tes-
tify thereto in the form of an opinion or otherwise.”
Lewis argues on appeal that Bowen’s testimony was not
admissible expert testimony. She points to the four prelimi-
nary questions that must be answered in order to determine
whether an expert’s testimony is admissible: (1) whether
the witness qualifies as an expert pursuant to § 27-702;
(2) whether the expert’s testimony is relevant; (3) whether
the expert’s testimony will assist the trier of fact to under-
stand the evidence or determine a controverted factual issue;
and (4) whether the expert’s testimony, even though relevant
and admissible, should be excluded in light of Neb. Rev.
Stat. § 27-403 (Reissue 2016) because its probative value is
substantially outweighed by the danger of unfair prejudice or
other considerations. See State v. Woolridge-Jones, 316 Neb.
500, 5 N.W.3d 426 (2024). Lewis claims that Bowen’s testi-
mony fails on each question, but she did not object on these
grounds at trial.
Instead, Lewis lodged, at most, a general foundation objec-
tion, which did not squarely preserve the four preliminary
questions above for consideration on appeal. See State v.
Childs, 309 Neb. 427, 960 N.W.2d 585 (2021) (objection,
based on specific ground and properly overruled, does not
preserve question for appellate review on any other ground).
See, also, Gittins v. Scholl, 258 Neb. 18, 601 N.W.2d 765
(1999) (on issue of necessity of medical expenses, objec-
tion based on physician’s lack of familiarity with entirety

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
STATE v. LEWIS
Cite as 319 Neb. 847
of patient’s treatment was general foundation objection, not
§ 27-702 objection); State v. Bideaux, 219 Neb. 718, 365
N.W.2d 830 (1985) (general objection as to foundation to
question requesting opinion of witness does not reach issue of
qualification of witness as expert; opposing counsel are enti-
tled to know that objection goes to qualifications of witness
as expert, rather than to factual foundation for opinion). We
say that Lewis, at most, lodged a general foundation objec-
tion because, as reflected above, Lewis did not even reference
foundation when the State asked the question that immedi-
ately preceded Bowen’s opinion about the cause of Martin’s
death. But even assuming that Lewis has adequately preserved
an argument that Bowen’s opinion lacked proper foundation,
that argument would lack merit.
We have recognized that expert testimony should not be
received if it appears the witness is not in possession of such
facts as will enable him or her to express a reasonably accu-
rate conclusion, as distinguished from mere guess or conjec-
ture. See State v. Woolridge-Jones, supra, citing Scurlocke v.
Hansen, 268 Neb. 548, 684 N.W.2d 565 (2004). Even if an
expert possesses specialized knowledge, his or her testimony
is properly excluded if the record does not support a find-
ing that the expert had a sufficient foundation for his or her
opinion. Id.
Neb. Rev. Stat. § 27-703 (Reissue 2016) addresses the facts
upon which an expert witness may rely. It states:
The facts or data in the particular case upon which
an expert bases an opinion or inference may be those
perceived by or made known to him at or before the
hearing. If of a type reasonably relied upon by experts
in the particular field in forming opinions or inferences
upon the subject, the facts or data need not be admissible
in evidence.
§ 27-703. We have reasoned that § 27-703 allows a physician
to provide a medical opinion based on medical records of other
providers. See, e.g., State v. Allen, 314 Neb. 663, 992 N.W.2d

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STATE v. LEWIS
Cite as 319 Neb. 847
712 (2023), modified on denial of rehearing 315 Neb. 255, 995
N.W.2d 446, cert. denied ___ U.S. ___, 144 S. Ct. 1070, 218
L. Ed. 2d 248 (2024); State v. Pruett, 263 Neb. 99, 638 N.W.2d
809 (2002); Gittins v. Scholl, supra; Gibson v. City of Lincoln,
221 Neb. 304, 376 N.W.2d 785 (1985). Any lack of firsthand
knowledge goes to the weight of the opinion. See, State v.
Allen, supra; State v. Pruett, supra; Gibson v. City of Lincoln,
supra.
We recently applied § 27-703 to a situation much like this
one. In Allen, we held that a “‘lack of personal knowledge
(foundation)’” was not a basis for excluding a forensic pathol-
ogist’s opinion testimony about the victim’s cause of death,
which the pathologist based on her review of autopsy reports
and photographs, crime scene investigators’ reports and pho-
tographs, and medical records and reports. 314 Neb. at 694,
992 N.W.2d at 734. See, also, State v. Pruett, supra (holding
that trial court did not err in admitting, over hearsay objec-
tions, pathologist’s cause-of-death opinion based on autopsy
reports, photographs, and tissue sections produced by another
physician). We explained that under § 27-703, admissible
expert opinion testimony did not have to be based on firsthand
knowledge. We further reasoned that there had been no alle-
gation that the facts and data relied upon were not the kind
reasonably relied upon by experts in the field of pathology.
This stands in contrast to the case Lewis relies on, Stukenholtz
v. Brown, 267 Neb. 986, 679 N.W.2d 222 (2004), where we
held that a physician assistant’s testimony regarding the cause
of an injury lacked foundation because it was based on reports
from professionals in other fields and the proponent did not
show that the witness was familiar with those specialties and
the treatment provided.
In 	light 	of 	the 	foregoing 	authority, 	we 	conclude 	that
Bowen’s testimony about Martin’s cause of death was admis-
sible pursuant to § 27-703, notwithstanding Bowen’s reli-
ance on medical records. It is undisputed that Bowen did not

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STATE v. LEWIS
Cite as 319 Neb. 847
have personal knowledge of Martin’s medical condition. But
Lewis makes no argument that the medical records Bowen
relied upon were not the kind of facts and data reasonably
relied upon by experts in Bowen’s field. And, in fact, Bowen
testified that he occasionally reviewed medical records to
determine causes of death. We discern no abuse of discre-
tion by the district court in admitting Bowen’s opinion about
Martin’s cause of death.
(b) Sufficiency of Evidence
Having established that Bowen’s testimony was admissible,
we take up Lewis’ argument that the evidence was insufficient
to convict her of motor vehicle homicide/DUI. “A person who
causes the death of another unintentionally while engaged in
the operation of a motor vehicle in violation of the law of the
State of Nebraska or in violation of any city or village ordi-
nance commits motor vehicle homicide.” § 28-306(1). See,
also, § 28-306(3)(b) (if “proximate cause” of death was opera-
tion of motor vehicle in violation of § 60-6,196, motor vehicle
homicide is Class IIA felony). Lewis challenges a single ele-
ment of this offense: She submits that there was insufficient
evidence to prove that the collision that resulted from her
unlawful conduct on October 11, 2020, proximately caused
Martin’s death. We understand her to argue that Bowen’s
testimony was the only evidence of causation and that it was
insufficient. We disagree.
In positing that Bowen’s testimony was insufficient evi-
dence of causation, Lewis again asserts Bowen’s opinion was
not based on his personal knowledge. We have already con-
cluded that this did not render Bowen’s causation testimony
inadmissible. And to the extent that Lewis uses Bowen’s lack
of personal knowledge to attack the weight and credibility of
his opinion, we observe that it is not this court’s role to pass
on the credibility of witnesses or reweigh the evidence; such
matters are for the finder of fact. See State v. Hassan, 309

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STATE v. LEWIS
Cite as 319 Neb. 847
Neb. 644, 962 N.W.2d 210 (2021). See, also, State v. Allen,
314 Neb. 663, 992 N.W.2d 712 (2023), modified on denial of
rehearing 315 Neb. 255, 995 N.W.2d 446, cert. denied ___
U.S. ___, 144 S. Ct. 1070, 218 L. Ed. 2d 248 (2024) (expert’s
lack of firsthand knowledge in giving testimony pursuant to
§ 27-703 goes to weight of expert’s opinion). Accordingly, we
decline to consider any weight and credibility arguments in
assessing the sufficiency of the evidence.
[4] Lewis was convicted of felony motor vehicle homicide/
DUI under § 28-306(3)(b), which requires that the unlawful
conduct be the “proximate cause” of the death. As a general
matter, to say one event proximately caused another is a way
of making two separate but related assertions: First, it means
the former event caused the latter; second, it means that it
was not just any cause, but one with a sufficient connection
to the result. State v. Irish, 292 Neb. 513, 514, 873 N.W.2d
161, 164 (2016). With this understanding of proximate cause
in mind, we conclude that the State presented sufficient evi-
dence that the collision that resulted from Lewis’ unlawful
conduct on October 11, 2020, caused Martin’s death.
Bowen opined, based on his training and experience as a
pathologist and on his review of Martin’s medical records,
that Martin’s death was directly related to the injuries he sus-
tained in the crash and that the cause of death was blunt force
trauma to the head. Thus, Bowen provided evidence that the
collision caused Martin’s death.
Lewis appears to suggest that Bowen’s testimony was
insufficient to prove that the collision caused Martin’s death
because Bowen did not adequately explain other possible
causes, particularly the causes listed on Martin’s death cer-
tificate. In support of this argument, Lewis relies on Doe v.
Zedek, 255 Neb. 963, 587 N.W.2d 885 (1999). In Zedek, a
plaintiff sued a doctor for medical malpractice in treating
her in a hospital after a sexual assault that also occurred
in the hospital. We observed that the subjective injuries

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STATE v. LEWIS
Cite as 319 Neb. 847
stemming from the claimed malpractice presented medically
complicated questions requiring expert testimony. A witness
testified that it was “‘possible’” that the plaintiff suffered
injuries from “‘what happened to [her] at the hospital.’” Id.
at 975, 587 N.W.2d at 893, 894 (emphasis in original). We
observed that this testimony did not distinguish the damages
caused by the claimed malpractice from the damages caused
by other factors, such as the sexual assault itself. Because
this shortcoming in the expert testimony required the trier
of fact to impermissibly arrive at its conclusions by guess,
speculation, conjecture, or choice of possibilities, we held
that the trial court erred by not granting the defendant a
directed verdict.
Lewis contends that, similar to Zedek, the issue of causa-
tion in this case presented medically complicated questions,
and the death certificate offered causes of death other than the
traffic accident, causes that Lewis claims Bowen explained
only with speculation. But Lewis’ reliance on Zedek does not
sway us from our conclusion that the evidence here was suf-
ficient to show the collision involving Lewis caused Martin’s
death. Bowen acknowledged that Martin’s death certificate
listed the causes of death as “Sepsis,” due to “Ischemic
Bowel” and “Small Bowel Obstruction.” This did not change
his opinion about Martin’s cause of death. He explained that
those were the conditions Martin was suffering from at the
time of his death, but it was Bowen’s opinion that those con-
ditions, which caused his death, were caused by the collision.
Bowen then repeated that it was his opinion that the traumatic
brain injury was the proximate cause of the conditions that
led to Martin’s death.
Unlike the choice of possibilities for causation that resulted
from the testimony in Zedek, Bowen’s testimony definitively
linked the conditions that caused Martin’s death to one root
cause: the collision. Bowen’s opinion was not necessarily
inconsistent with the causes of death identified on Martin’s

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death certificate by the hospice nurse, but even if it was, the
district court apparently gave Bowen’s opinion more weight
and credibility, which was the district court’s province to do.
See State v. Hassan, 309 Neb. 644, 962 N.W.2d 210 (2021).
Thus, the district court did not err in finding that the State’s
proof on the element of causation was sufficient to support
Lewis’ conviction for motor vehicle homicide/DUI.
2. Double Jeopardy
We now turn to Lewis’ argument that the district court erred
by denying her motions to vacate her conviction and sentence
on the grounds that she had been subjected to multiple punish-
ments in violation of her double jeopardy rights. Before diving
into the parties’ positions on this issue, we believe it helpful
to provide some basic background regarding double jeopardy
principles and our earlier opinion in Lewis I.
(a) Background on Double Jeopardy and Lewis I
The Fifth Amendment to the U.S. Constitution provides
in relevant part that no person shall be “subject for the
same offence to be twice put in jeopardy of life or limb.”
Similarly, article I, § 12, of the Nebraska Constitution pro-
vides, “No person shall be . . . twice put in jeopardy for
the same offense.” Both this court and the U.S. Supreme
Court have recognized that the respective Double Jeopardy
Clauses of the U.S. and Nebraska Constitutions protect
against three distinct abuses: (1) a second prosecution for
the same offense after acquittal, (2) a second prosecution
for the same offense after conviction, and (3) multiple pun-
ishments for the same offense. See Lewis I, supra. But see
Department of Revenue of Mont. v. Kurth Ranch, 511 U.S.
767, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994) (Scalia, J.,
dissenting) (arguing that Double Jeopardy Clause prohib-
its successive prosecutions but not multiple punishments).
Indeed, we have held that the protection granted by the
Nebraska Constitution against double jeopardy is coextensive

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to the protection granted by the U.S. Constitution. See, e.g.,
State v. Sierra, 305 Neb. 249, 939 N.W.2d 808 (2020).
Because we have treated the Double Jeopardy Clause in the
Nebraska Constitution as coextensive with its federal coun-
terpart and the parties make no argument for any other treat-
ment, we will not separately analyze Lewis’ claims under the
federal and state Double Jeopardy Clauses.
In Lewis’ plea in bar, she claimed that the motor vehi-
cle homicide/DUI prosecution violated the second aspect of
the double jeopardy clause mentioned above: the protection
against a second prosecution for the same offense after a con-
viction. She argued that after her conviction for DUI/serious
bodily injury, the State could not pursue a successive prosecu-
tion for motor vehicle homicide/DUI because it was a second
prosecution for the same offense. We rejected that argument,
finding that, under Diaz v. United States, 223 U.S. 442, 32 S.
Ct. 250, 56 L. Ed. 500 (1912), the State could prosecute Lewis
for motor vehicle homicide/DUI despite having previously
convicted her of DUI/serious bodily injury. As noted above,
we reasoned that Diaz applied because at the time Lewis was
charged and convicted of DUI/serious bodily injury, Martin
had not yet died and thus the State could not pursue charges
of motor vehicle homicide/DUI.
Because Lewis had not yet been convicted of motor vehicle
homicide/DUI at the time we decided Lewis I, she did not
argue in that appeal, and we had no reason to consider, whether
a conviction for motor vehicle homicide/DUI would implicate
the third aspect of double jeopardy--multiple punishments for
the same offense. After Lewis was convicted of motor vehicle
homicide/DUI, however, she asked the district court to vacate
that conviction and sentence on the grounds that she had been
subjected to multiple punishments for the same offense in vio-
lation of double jeopardy principles. The district court denied
that motion. Lewis argues on appeal that was error. She asks
us to find that she has been subjected to multiple punishments

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for the same offense and that the district court should have
vacated her conviction and sentence for motor vehicle homi-
cide/DUI. The State denies that Lewis’ convictions and sen-
tences for both DUI/serious bodily injury and motor vehicle
homicide/DUI resulted in impermissible multiple punishments.
We next summarize the parties’ arguments in favor of their
respective positions.
(b) Parties’ Arguments Regarding
Multiple Punishments
According to Lewis, this case presents a textbook example
of a defendant being punished twice for the same offense.
Lewis argues that the appropriate test to determine whether
DUI/serious bodily injury and motor vehicle homicide/DUI
are the same offense is the test announced by the U.S.
Supreme Court in Blockburger v. United States, 284 U.S. 299,
52 S. Ct 180, 76 L. Ed. 306 (1932). In Blockburger, the Court
held that “where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be
applied to determine whether there are two offenses or only
one, is whether each provision requires proof of a fact which
the other does not.” 284 U.S. at 304. Lewis argues that DUI/
serious bodily injury is a lesser-included offense of motor
vehicle homicide/DUI and thus the offenses are the same
under Blockburger. And because the offenses are the same, she
contends, double jeopardy principles prohibit her from being
punished for both serious bodily injury/DUI and motor vehi-
cle homicide/DUI.
The State disagrees with Lewis’ contention that this case
turns on the application of Blockburger. In fact, in this appeal,
the State does not even challenge Lewis’ assertion that the
offenses 	are 	the 	same 	pursuant 	to 	Blockburger. 	Instead,
the State argues that even if the offenses are the same under
Blockburger, there is no multiple punishments problem in this
case. In support, the State directs us to Missouri v. Hunter, 459
U.S. 359, 103 S. Ct. 673, 74 L. Ed. 2d 535 (1983).

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In Hunter, a defendant who robbed a supermarket at gun-
point was convicted of robbery and violating a Missouri stat-
ute that criminalized armed criminal action. The U.S. Supreme
Court reversed a Missouri appellate court that concluded that
the two convictions subjected the defendant to multiple pun-
ishments in violation of his double jeopardy rights. The U.S.
Supreme Court explained that the Missouri legislature specif-
ically authorized cumulative punishment for violation of the
robbery and armed criminal action statutes and that where a
legislature does so, “regardless of whether those two statutes
proscribe the ‘same’ conduct under Blockburger, a court’s
task of statutory construction is at an end and the prosecutor
may seek and the trial court or jury may impose cumulative
punishment under such statutes in a single trial.” Missouri v.
Hunter, 459 U.S. at 368-69.
The State goes on to argue that this court has relied on the
reasoning employed in Hunter to reject a claim that a defen-
dant had been subjected to impermissible multiple punish-
ments in violation of double jeopardy principles. The State
directs us to State v. McBride, 252 Neb. 866, 567 N.W.2d 136
(1997). In McBride, a defendant was convicted of discharge
of a firearm and use of a firearm to commit a felony. Even
though one offense was a lesser-included offense of the other,
we found the defendant did not face multiple punishments
in violation of double jeopardy principles. We relied on the
fact that a statute provided that using a deadly weapon to
commit a felony was to be treated as a separate and distinct
offense from the underlying felony and that sentences for
that offense were to be consecutive to any other sentence
imposed. Because the Legislature intended that “one using
a deadly weapon be subjected to cumulative punishments
for committing the underlying felony and for the use of
a weapon to commit it,” we found that the defendant was
not subjected to cumulative punishment in violation of his
double jeopardy rights. Id. at 882, 567 N.W.2d at 147. See,

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also, State v. Mata, 273 Neb. 474, 730 N.W.2d 396 (2007)
(employing same reasoning to reject multiple punishments
double jeopardy claim).
The State argues that the statutes defining DUI/serious
bodily injury and motor vehicle homicide/DUI both have
language, like that relied upon in McBride, demonstrating the
Legislature intended to allow cumulative punishments for those
offenses. The statutes contain identical language that provides
that “[t]he crime punishable under this section shall be treated
as a separate and distinct offense from any other offense aris-
ing out of acts alleged to have been committed while the per-
son was in violation of this section.” See § 28-306(4) and Neb.
Rev. Stat. § 60-6,198(4) (Reissue 2021).
Lewis does not dispute that the language quoted above
demonstrates that the Legislature intended to allow cumulative
punishments for DUI/serious bodily injury and motor vehicle
homicide/DUI. And given the similarity between the language
in the DUI/serious bodily injury and motor vehicle homicide/
DUI statutes on the one hand and the language that we found
demonstrated an intent to permit cumulative punishment in
State v. McBride, supra, on the other hand, any such argument
by Lewis would fail. The Legislature has clearly demonstrated
an intent to allow cumulative punishments for DUI/serious
bodily injury and motor vehicle homicide/DUI.
Although Lewis does not challenge the State’s argument that
the Legislature has clearly authorized cumulative punishment
for DUI/serious bodily injury and motor vehicle homicide/
DUI, she nonetheless maintains that she has been subjected to
impermissible multiple punishments in violation of her double
jeopardy rights. She argues that the Hunter test—that a mul-
tiple punishments claim is evaluated by determining whether
statutes evidence a clear legislative intent to permit cumulative
punishment—applies only if those cumulative punishments are
pursued in a single proceeding.
And, it must be acknowledged, there is language in Hunter
itself and in several other cases that followed it that refers

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to cumulative punishments being permitted if imposed in a
single proceeding. See Missouri v. Hunter, 459 U.S. at 366
(“[w]ith respect to cumulative sentences imposed in a single
trial, the Double Jeopardy Clause does no more than prevent
the sentencing court from prescribing greater punishment
than the legislature intended”) (emphasis supplied). See, also,
Department of Revenue of Mont. v. Kurth Ranch, 511 U.S.
767, 778, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994) (noting
that state could assess tax on possession of marijuana “if it
had assessed the tax in the same proceeding that resulted in
his conviction”) (emphasis supplied); State v. Mata, 273 Neb.
at 480-81, 730 N.W.2d at 401 (“[w]hen the Legislature has
demonstrated an intent to permit cumulative punishments,
the Double Jeopardy Clause is not violated as long as long
as the court imposes the cumulative punishments in a single
proceeding”) (emphasis supplied); State v. Detweiler, 249
Neb. 485, 496, 544 N.W.2d 83, 91 (1996) (“[i]f the legislature
intended that defendants be punished cumulatively under both
charges and the sentences for both charges are imposed in
a single trial, the Double Jeopardy Clause is not offended”)
(emphasis supplied).
Because in this case Lewis faced multiple prosecutions, first
for DUI/serious bodily injury charges and then, after Martin
died, for motor vehicle homicide/DUI charges, Lewis argues
that the Hunter test should never come into play.
At oral argument, the State acknowledged that Hunter and
cases following it refer to cumulative punishments being per-
mitted if pursued in a single proceeding. Counsel for the State
argued, however, that, at least in this case, where the State
could not charge Lewis with motor vehicle homicide/DUI at
the time she was charged and convicted of DUI/serious bodily
injury because Martin had not yet died, the fact that the State
initiated successive prosecutions does not preclude application
of the Hunter test.
The parties’ arguments and concessions frame for us a
double jeopardy question that is quite narrow. Because the

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question is so narrow, it will take us more than a few lines of
text to lay it out. The question is this: Can a defendant be pun-
ished for two crimes, even if they qualify as the same offense
under the Blockburger test, when the Legislature has clearly
authorized cumulative punishment for the crimes but the
convictions are obtained in successive prosecutions, because
facts necessary to obtain one of the convictions had not yet
occurred at the time of the first prosecution? Or, phrasing
the question somewhat more concisely and with references to
relevant U.S. Supreme Court precedent, can the Hunter test
be applied when the punishments are obtained in successive
criminal prosecutions if the second prosecution is permitted
by Diaz? We analyze that question below.
(c) Multiple Punishments Analysis
Because we have concluded above that the Legislature has
clearly authorized cumulative punishments for DUI/serious
bodily injury and motor vehicle homicide/DUI, Hunter would
have allowed Lewis to be convicted of and punished for both
offenses if the State had pursued them in a single proceed-
ing. Lewis does not seriously dispute that point in this appeal.
Instead, she argues that she has received multiple punishments
in violation of her double jeopardy rights because her convic-
tions were obtained in successive proceedings. We disagree for
reasons we will explain.
First, Diaz itself provides some indication that Lewis has
not been subjected to impermissible multiple punishments.
Readers of Lewis I will remember that Diaz involved a
defendant in the Philippines (when it was a U.S. territory)
who physically attacked a victim and was convicted and
sentenced for misdemeanor assault and battery. When the
victim later died from his injuries, homicide charges were
brought against the defendant. After he was convicted and
sentenced for homicide, he unsuccessfully appealed to the
Supreme Court of the Philippines. The case then made its
way to the U.S. Supreme Court. The U.S. Supreme Court

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found no double jeopardy violation, pointing out that at the
time of the trial for the assault and battery, the death had not
yet occurred. Only once the death occurred, the U.S. Supreme
Court reasoned, “was it possible to put the accused in jeop-
ardy” for the homicide. Diaz v. United States, 223 U.S. 442,
449, 32 S. Ct. 250, 56 L. Ed. 500 (1912).
Although we relied on Diaz in Lewis I to conclude that a
second prosecution was permitted, Diaz also, at least argu-
ably, suggests that impermissible multiple punishments are not
imposed if a defendant is convicted and sentenced for homi-
cide charges in a situation like that in Diaz and this case. Diaz
involved an appeal after the defendant had been convicted and
sentenced for the homicide charges, and yet, the U.S. Supreme
Court found no double jeopardy problems with the homicide
conviction or sentence. Furthermore, based on its language,
the U.S. Supreme Court appeared to conclude that, under
the circumstances, the defendant had not been previously put
in jeopardy for the homicide charges and thus the Double
Jeopardy Clause simply was not implicated.
If Diaz alone were not enough, a more recent U.S. Supreme
Court opinion, Garrett v. United States, 471 U.S. 773, 105 S.
Ct. 2407, 85 L. Ed. 2d 764 (1985), more clearly demonstrates
that Lewis has not been subjected to multiple punishments
in this case. In Garrett, the defendant entered a guilty plea
to one count of importation of marijuana in a Washington
federal court and was convicted and sentenced. Later, the
defendant was charged in a Florida federal court for various
charges, including engaging in a continuing criminal enter-
prise. The continuing criminal enterprise charge required
prosecutors to prove, among other things, that the defendant
had committed a continuing series of crimes with a single
or similar purpose. In the trial in Florida, prosecutors intro-
duced evidence of the defendant’s drug smuggling operation
in Washington to prove the predicate acts for engaging in
a continuing criminal enterprise. The defendant was con-
victed of engaging in a continuing criminal enterprise. The

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case eventually reached the U.S. Supreme Court, where the
defendant argued that the Florida trial was an impermissible
successive prosecution and that he had impermissibly been
subjected to multiple punishments by being sentenced for
both importation of marijuana and engaging in a continuing
criminal enterprise.
The U.S. Supreme Court in Garrett rejected both argu-
ments. With respect to the defendant’s successive prosecution
argument, the Court found that even assuming the Washington
offense was a lesser-included offense of engaging in a continu-
ing criminal enterprise, the second prosecution was permitted.
The Court relied on Diaz for this conclusion. It pointed to
evidence that the defendant was engaging in drug smuggling
after he had been charged in Washington and determined that,
as in Diaz, the second offense for engaging in a continuing
criminal enterprise was not yet completed at the time of the
first prosecution.
The U.S. Supreme Court in Garrett then went on to deter-
mine whether the defendant had been subjected to impermis-
sible multiple punishments under the Double Jeopardy Clause.
The Court made short work of this issue. It first quoted Hunter
to say that, with respect to multiple punishments, “‘the Double
Jeopardy Clause does no more than prevent the sentencing
court from prescribing greater punishment than the legisla-
ture intended.’” Garrett, 471 U.S. at 793, quoting Missouri
v. Hunter, 459 U.S. 359, 366, 103 S. Ct. 673, 74 L. Ed. 535
(1983). It then found that Congress intended to permit cumula-
tive sentences for engaging in a continuing criminal enterprise
and the underlying predicate offenses.
The U.S. Supreme Court’s resolution of the successive
prosecution and multiple punishments arguments in Garrett
supports the State’s argument that Lewis was not subjected
to impermissible multiple punishments in this case. The U.S.
Supreme Court initially concluded that successive prosecu-
tions were permitted in Garrett because Diaz applied. It
then determined that the defendant could be subjected to

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cumulative punishments under Hunter because there was
clear congressional intent to permit cumulative punishment.
And the Court concluded that cumulative punishment was
permissible notwithstanding the fact that the convictions at
issue were obtained in successive prosecutions. The paral-
lels with this case are obvious: We determined that this case
is governed by Diaz in Lewis I, and we have determined in
this appeal that the Legislature intended to allow cumulative
punishment for DUI/serious bodily injury and motor vehicle
homicide/DUI.
We are not the first state court of last resort to read Garrett
in this way. In People v. Harding, 443 Mich. 693, 506 N.W.2d
482 (1993), abrogated on other grounds, People v. Ream, 481
Mich. 223, 750 N.W.2d 536 (2008), the Michigan Supreme
Court confronted a case similar to this one. Following an
armed robbery in which a victim was shot, defendants were
charged and convicted of armed robbery and assault with
intent to commit murder. Years later, after the victim had
died and an autopsy revealed that the cause of death was the
damage to his heart caused by the gunshot wound sustained
during the robbery, the defendants were charged and con-
victed of felony murder. On appeal, defendants argued that
their double jeopardy rights had been violated in two ways:
because of the successive prosecution and because they
received multiple punishments. The Michigan Supreme Court
first concluded that the prosecution for felony murder did not
violate double jeopardy protections, because at the time of
the first prosecution, the victim had not yet died. In support,
it cited Diaz and Garrett.
The Michigan Supreme Court went on to consider whether
the defendants had been subjected to multiple punishments
in violation of their double jeopardy rights. Citing Garrett,
it concluded that the multiple punishments issue turned on
whether the legislature intended to allow for the imposition
of cumulative penalties. The court pointed out that although
Garrett involved successive prosecutions, the U.S. Supreme

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Court analyzed the multiple punishments question in that case
by relying on “single prosecution-multiple punishments cases
for the proposition that legislative intent controls the imposi-
tion of multiple penalties.” Harding, 443 Mich. at 706, 506
N.W.2d at 489. And although the Michigan Supreme Court
went on to find the defendants in Harding had been subjected
to multiple punishments in violation of their double jeopardy
rights, it did so based on its conclusion that the Michigan leg-
islature did not intend to permit defendants to be punished for
both felony murder and armed robbery or for both felony mur-
der and assault with intent to murder. That final conclusion is
of no assistance to Lewis because, as we have discussed, we
conclude that the Nebraska Legislature did intend to permit
cumulative punishment for DUI/serious bodily injury and
motor vehicle homicide/DUI.
In the face of the U.S. Supreme Court’s application of the
Hunter test to analyze a multiple punishments claim in a Diaz-
type successive prosecution case in Garrett, Lewis maintains
that the language in Hunter and in its progeny that refers to
its test applying when multiple charges are pursued in a single
proceeding precludes application of the test in this case. We
are not convinced.
In our view, Hunter did not announce a rule that its
test can never apply when challenged multiple punishments
are imposed after successive prosecutions. The reference to
single proceedings in that case could be read to allude to the
practical reality that, in most cases, prosecutors will not be
able to obtain multiple punishments for the same conduct
through multiple prosecutions because of the double jeopardy
protection from successive prosecutions. That is how Justice
Scalia appeared to understand the language in Hunter. He
remarked in a dissenting opinion in Department of Revenue
of Mont. v. Kurth Ranch that “the Double Jeopardy Clause’s
ban on successive criminal prosecutions would make surplus-
age of any distinct protection against additional punishment
imposed in a successive prosecution, since the prosecution

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itself would be barred,” and then in a footnote, he cited the
Hunter test, complete with a reference to “legislatively autho-
rized multiple punishments” being permitted “in a single
proceeding” but not in “successive proceedings.” Department
of Revenue of Mont. v. Kurth Ranch, 511 U.S. 767, 801 &
n.1, 114 S. Ct. 1937, 128 L. Ed. 2d 767 (1994) (Scalia, J.,
dissenting) (emphasis in original). On that understanding, the
language in Hunter referring to single proceedings would not
aid Lewis, since we already determined in Lewis I that a suc-
cessive prosecution was permitted.
We recognize that Justice Scalia was not in the majority
in Kurth Ranch and, indeed, at oral argument, Lewis argued
that the majority opinion in Kurth Ranch supported her
contention that the Hunter test cannot apply in a successive
prosecution case. We remain unpersuaded. In Kurth Ranch,
the U.S. Supreme Court found that Montana could not assess
a tax on the possession of illegal drugs after it had obtained
criminal convictions for possession of the same drugs and,
in doing so, observed that the state could have assessed the
tax if it had done so “in the same proceeding that resulted
in . . . conviction.” 511 U.S. at 778. The Court’s conclusion
in Kurth Ranch that the defendants’ double jeopardy rights
were violated hinged on its finding that the tax was punitive
rather than criminal, an approach to double jeopardy the U.S.
Supreme Court would backtrack from a few years later in
Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L.
Ed. 2d 450 (1997). But even setting aside the effect Hudson
may have had on the continued vitality of Kurth Ranch,
Kurth Ranch was not a case like Diaz or Garrett or this one,
in which the second proceeding could not have been pursued
at the time of the first, because facts necessary to the charges
pursued in the second proceeding had not yet occurred. As
we have explained, we read Garrett to permit application of
the Hunter test in that scenario, and nothing in Kurth Ranch
or any other case we have found calls that into question.
At a minimum, the Hunter language referring to a single

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proceeding appears subject to an exception in cases in which
Diaz applies.
Finally, and perhaps more simply, if the U.S. Supreme
Court’s guidance in Hunter and Diaz is viewed together, it is
just difficult to understand why this would amount to a case
in which impermissible multiple punishments were imposed.
Hunter would allow the State to have obtained convictions
and sentences for both DUI/serious bodily injury and motor
vehicle homicide/DUI if it had pursued those charges in the
same prosecution. And while the State did not pursue those
charges in the same prosecution, it could not have prosecuted
Lewis for motor vehicle homicide/DUI when it brought the
DUI/serious bodily injury charges because Martin had not yet
died, a set of circumstances in which successive prosecutions
are permitted under Diaz.
To summarize, we hold that the Hunter test for analyzing
claims that a defendant has been subjected to multiple punish-
ments is properly applied in successive prosecution cases like
this one in which the second prosecution is permitted by Diaz.
Applying the Hunter test, we find that the Legislature specifi-
cally authorized cumulative punishment for DUI/serious bodily
injury and motor vehicle homicide/DUI. Accordingly, Lewis
has not been subjected to multiple punishments in violation of
her double jeopardy rights.
(d) Remedy for Multiple Punishments
Prior to concluding, we observe that even if Lewis were
correct that she could not constitutionally be punished for both
DUI/serious bodily injury and motor vehicle homicide/DUI, it
is not clear to us that she sought an appropriate remedy in the
district court or seeks an appropriate remedy on appeal. Lewis
asked the district court to vacate her motor vehicle homicide/
DUI conviction and sentence and argues on appeal that the dis-
trict court erred in denying that motion.
An order vacating Lewis’ conviction and sentence for motor
vehicle homicide/DUI would seem to render our decision in

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Lewis I essentially meaningless. In Lewis I, we held that the
State could, consistent with double jeopardy protections, pros-
ecute Lewis for motor vehicle homicide/DUI. There would be
little point in allowing a second prosecution if it could not
result in any conviction or a sentence. The Michigan Supreme
Court concluded as much in People v. Harding, 443 Mich.
693, 506 N.W.2d 482 (1993), abrogated on other grounds,
People v. Ream, 481 Mich. 223, 750 N.W.2d 536 (2008).
There, the court expressly rejected the idea that it would be
appropriate to remedy the impermissible multiple punish-
ments problem present in that case by vacating the conviction
obtained and sentence imposed in the second prosecution. As
that court put it, such a remedy “would nullify the purpose
of the constitutionally acceptable Diaz exception.” Harding,
443 Mich. at 715, 506 N.W.2d at 493. The Michigan Supreme
Court instead found that defendants were entitled to have the
time they had served on their assault with intent to murder
and armed robbery sentences credited toward their sentences
for felony murder. See, also, State v. Gardner, No. 55171,
1989 WL 31142 at *1 (Ohio App. Mar. 30, 1989) (holding
that under Diaz, defendant could be prosecuted for murder
despite previous conviction for assault and battery, and noting
that “[a]ny potential prejudice in the form of multiple punish-
ments will be prevented by the requirement that [defendant]
be given credit for time served”).
In this case, Lewis never argued in the district court that
she was entitled to credit for time she had served on her DUI/
serious bodily injury sentence. Even so, the district court
appeared, in some manner, to factor Lewis’ prior service of
time on her DUI/serious bodily injury sentence into its sen-
tencing calculus for the motor vehicle homicide/DUI convic-
tion. At the sentencing hearing, the district court mentioned
that Lewis had already served time for her actions in the case,
referenced “issues of double jeopardy,” and ultimately imposed
a probationary sentence for motor vehicle homicide/DUI after

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earlier giving a sentence of incarceration for the less serious
offense of serious bodily injury/DUI.
In the end, however, it is not necessary for us to determine
what the appropriate remedy would be in a case in which a sec-
ond conviction leads to impermissible multiple punishments.
As we have explained above, we find that Lewis was not sub-
jected to impermissible multiple punishments in this case.
V. CONCLUSION
Because we find no error on the part of the district court, we
affirm Lewis’ conviction and sentence.
Affirmed.