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                             Nebraska Court of Appeals Advance Sheets
                                  28 Nebraska Appellate Reports
                                                   STATE v. WELLS
                                                Cite as 28 Neb. App. 118

                                        State of Nebraska, appellee, v.
                                          Mason J. Wells, appellant.
                                                     ___ N.W.2d ___

                                          Filed March 10, 2020.    No. A-19-257.

                 1. Sentences: Appeal and Error. An appellate court will not disturb a sen-
                    tence imposed within the statutory limits absent an abuse of discretion
                    by the trial court.
                 2. Sentences. In determining a sentence to be imposed, relevant factors
                    customarily considered and applied are the defendant’s (1) age, (2) men-
                    tality, (3) education and experience, (4) social and cultural background,
                    (5) past criminal record or record of law-abiding conduct, and (6) moti-
                    vation for the offense, as well as (7) the nature of the offense and (8) the
                    amount of violence involved in the commission of the crime.
                 3. ____. The appropriateness of a sentence is necessarily a subjective judg-
                    ment and includes the sentencing judge’s observation of the defendant’s
                    demeanor and attitude and all the facts and circumstances surrounding
                    the defendant’s life.
                 4. ____. An indeterminate sentence is a minimum term and maximum term
                    or range of time for which the defendant is to be incarcerated, even if
                    the minimum and maximum number are the same.
                 5. ____. When a sentence for a misdemeanor is imposed consecutively
                    or concurrently with sentences for felony convictions, the felony clas-
                    sifications will dictate whether the misdemeanor sentence should be a
                    determinate or indeterminate sentence.

                 Appeal from the District Court for Greeley County: Karin
               L. Noakes, Judge. Affirmed in part, and in part vacated and
               remanded for resentencing.

                    Mark Porto, of Porto Law Office, for appellant.
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. WELLS
                      Cite as 28 Neb. App. 118

   Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
  Riedmann, Bishop, and Arterburn, Judges.
   Bishop, Judge.
   Mason J. Wells was initially charged with 19 counts of vari-
ous felony and misdemeanor violations stemming from actions
he took in May 2018 in Greeley County, Nebraska. Pursuant to
a plea agreement, he pled no contest to seven counts related to
an incident involving a firearm, kidnapping, terroristic threats,
false imprisonment, third degree assault, and criminal mis-
chief. The Greeley County District Court sentenced Wells to
various consecutive and concurrent sentences on his felony
and misdemeanor convictions. Wells, who was 20 years old
at the time of sentencing, contends the district court imposed
excessive sentences. The State disagrees, but claims the district
court committed plain error by imposing determinate rather
than indeterminate sentences for some of the convictions. We
affirm in part, and in part vacate and remand for resentencing
on some of the sentences imposed.
                        BACKGROUND
   On the evening of May 4, 2018, Wells was present at a
party taking place outside of Spalding, Nebraska. A number of
juveniles were also present, including the four male victims in
this case: C.H. and W.F., who were both 17 years old; B.K.,
who was 15 years old; and T.B., who was 16 years old. Wells
and another individual, Nicholas Vanderheiden, approached
the victims at the party location and physically assaulted C.H.
and W.F. The four victims got into a vehicle and left the party,
but were followed and overtaken by Wells and Vanderheiden.
C.H. and W.F. were forced out of their vehicle at gunpoint and
were subsequently further assaulted. The assault was disrupted
when a vehicle approached and another young man, B.B.,
intervened. He was also assaulted, but he got away and con-
tacted law enforcement.
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. WELLS
                      Cite as 28 Neb. App. 118

   On July 18, 2018, the State filed an information charging
Wells with a total of 19 counts: 8 counts of use of a fire-
arm to commit a felony, each a Class IC felony, pursuant
to Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016); 4 counts
of “Kidnapping-Voluntarily Released Alive” (named victims
C.H., W.F., B.K., and T.B.), each a Class II felony, pursu-
ant to Neb. Rev. Stat. § 28-313(1)(c) and (3) (Reissue 2016);
4 counts of terroristic threats (named victims C.H., W.F.,
B.K., and T.B.), each a Class IIIA felony, pursuant to Neb.
Rev. Stat. § 28-311.01 (Reissue 2016); and 3 counts of third
degree assault (named victims C.H., W.F., and B.B.), each a
Class I misdemeanor, pursuant to Neb. Rev. Stat. § 28-310
(Reissue 2016).
   Pursuant to a plea agreement, the State filed an amended
information on January 11, 2019, charging Wells with seven
counts: possession of a deadly weapon (firearm) during
the commission of a felony, a Class II felony, pursuant to
§ 28-1205(2)(c) (count I); “Kidnapping-Voluntarily Released
Alive” (named victim W.F.), a Class II felony, pursuant to
§ 28-313(1)(c) and (3) (count II); terroristic threats (named
victim C.H.), a Class IIIA felony, pursuant to § 28-311.01
(count III); second degree false imprisonment (named vic-
tims T.B. and B.K.), a Class I misdemeanor, pursuant to Neb.
Rev. Stat. § 28-315 (Reissue 2016) (counts IV and V); third
degree assault (named victim B.B.), a Class I misdemeanor,
pursuant to § 28-310 (count VI); and “Criminal Mischief $500-
$1,500,” a Class II misdemeanor, pursuant to Neb. Rev. Stat.
§ 28-519(1) and (4) (Reissue 2016) (count VII).
   At a hearing on January 14, 2019, Wells pled no contest to
all seven counts in the amended information. According to the
factual basis provided by the State:
         On the evening of May 4, 2018[,] a party was held at
      [a named location] about seven miles outside Spalding,
      Nebraska in Greeley County. The event was a going
      away party for [a person] leaving for school out of state.
      A number of juveniles were present at the event; [W.F.],
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   Nebraska Court of Appeals Advance Sheets
        28 Nebraska Appellate Reports
                    STATE v. WELLS
                 Cite as 28 Neb. App. 118

[C.H.], [T.B.], B.K.], and . . . other witnesses . . . , as
were defendants . . . Wells and . . . Vanderheiden.
   Throughout the evening [W.F.] was approached on
more than one occasion by another defendant who told
[W.F.] he was going to fight him. Wells made the same
statement to several others at the party. . . . Approximately
11:30 p.m. [W.F.], [C.H.], [T.B.], [B.K.], and [one other
person], all juveniles, got into [W.F.’s] pickup to leave the
party. Wells approached the pickup and repeatedly told
[W.F.] they were going to fight. . . .
   [W.F.] repeatedly told Wells they were not going to
fight and asked to just let them leave. Wells repeated his
demands that [W.F.] and the passengers get out of his
pickup. Wells stated, “Get out of the pickup or it’s going
to be worse for all of you. Just get out.” [W.F.] and the
other passengers . . . exited the pickup.
   [W.F.] repeatedly told Wells he did not want to fight
him and turned toward his pickup. Wells struck [W.F.]
in the face two times and in the back one time with
closed fists.
   The four victims; [W.F.], [C.H.], [T.B.] and [B.K.], got
back into [W.F.’s] pickup. [W.F.] locked his door. Wells
went over to the front passenger side of the pickup where
[C.H.] was sitting with the door open. Wells demanded
[C.H.] get out. [C.H.] refused to do so, and Wells struck
[C.H.] in the face while [C.H.] was seated in the pickup.
   Another person told Wells to get off [C.H.] and let
him go. At this point Vanderheiden . . . grabbed the bug
guard on [W.F.’s] pickup and broke off a piece, then came
around to the driver’s side and broke the driver’s side
mirror. . . .
   One of Wells’ friends grabbed . . . Wells, restraining
him and yelled at [W.F.] to go. [W.F.] started the pickup
and left immediately with [C.H.], [T.B.], and [B.K.] in the
pickup with him.
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   Nebraska Court of Appeals Advance Sheets
        28 Nebraska Appellate Reports
                    STATE v. WELLS
                 Cite as 28 Neb. App. 118

   [W.F.] was driving down WPA Road when a pickup
driven by Wells, with Vanderheiden as his passenger,
overtook [W.F.’s] pickup and swung the pickup sideways
on the road effectively blocking the road so [W.F.] could
not pass. [W.F.] put his vehicle in reverse and started to
back up to get away from Wells and Vanderheiden.
   At that point Wells exited his pickup holding a shotgun,
which he pointed at [W.F.] Vanderheiden also exited the
pickup holding a rifle. Wells pointed his weapon at [C.H.]
and demanded he get the fuck out of the vehicle. Wells
pulled [C.H.] out of the passenger side of [W.F.’s] pickup.
During the same time, Vanderheiden stated, “We could
kill all of you and bury you and no one would know.” The
same statement, or similar words, were repeated several
times by Vanderheiden during this course of events, and
in the presence of Wells, as well as [W.F.], [C.H.], [T.B.],
and [B.K.], the victims.
   Wells stated, “I’m going to get in [W.F.’s] truck and
you go get in with [Vanderheiden].” Vanderheiden pointed
his rifle at [C.H.] and walked [C.H.] over to Wells’
pickup. Vanderheiden then forced [C.H.] into Wells’
pickup. Wells got into [W.F.’s] pickup in the front pas-
senger seat. Vanderheiden proceeded to drive off in Wells’
pickup, and Wells told [W.F.] to follow [Vanderheiden].
[W.F.] complied. During the drive Wells stated to [W.F.],
[T.B.], and [B.K.], “You guys made this a lot worse
by leaving.”
   After traveling approximately a half to three-quarters
of a mile, Vanderheiden stopped Wells’ pickup. [W.F.]
stopped as well. Vanderheiden told [C.H.] to get out with
your hands up or I’ll put a round in your dome. [C.H.]
exited Wells’ pickup. Vanderheiden pointed a rifle at
[C.H.] and they both walked towards [W.F.’s] pickup.
Vanderheiden told [C.H.], “I’ve been waiting to do this
for a long time”, and “I will kill you and bury you in
a hog confinement”. Wells yelled at [C.H.] and [W.F.]
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   Nebraska Court of Appeals Advance Sheets
        28 Nebraska Appellate Reports
                    STATE v. WELLS
                 Cite as 28 Neb. App. 118

warning them that if they tried anything he wouldn’t
hesitate to shoot all of us. [T.B.] and [B.K.] were in this
presence [sic] when all of this occurred. They’re in the
backseat of the pickup.
    Wells exited [W.F.’s] pickup and spoke briefly with
Vanderheiden. Vanderheiden then approached [W.F.’s]
door and opened it. After he yelled continually at [W.F.],
Vanderheiden punched [W.F.], pulled him out of the
pickup and continued to assault him. At that point Wells
. . . continued to assault [W.F.] At some point [W.F.] got
back into his pickup. Wells then told him again to exit
the pickup. [W.F.] did so, walked around to the passenger
side of the pickup.
    At that point, Vanderheiden demanded that [W.F.] get
back into his vehicle. As [W.F.] was walking back towards
the driver’s side of the pickup, Vanderheiden jabbed the
butt of the rifle he was holding into [W.F.’s] back and
told him, “I will shoot you.” Right as [W.F.] was getting
back into his pickup, Vanderheiden pulled him out again
and started hitting [W.F.] [C.H.] and Wells were behind
[W.F.’s] pickup.
    At this point, [B.B.], who was driving along WPA
Road, came upon this scene. He jumped out of his pickup
and began yelling at Wells. Wells put his weapon down
on the pickup, and [B.B.] then pushed Vanderheiden, who
still had a rifle. Wells ran toward [B.B.] and began hitting
and kicking [B.B.] Vanderheiden began assaulting [B.B.],
as well. The assault ended when [B.B.] got free, returned
to his pickup, and left. Wells and Vanderheiden told
[W.F.] and [C.H.] to leave. Wells stated, “[B.B.’s] dead
now.” [C.H.] and [W.F.] got back into [W.F.’s] pickup and
left. So, the four victims left in [W.F.’s] pickup.
    [B.B.] contacted [law enforcement]. Wells and
Vanderheiden left the scene. Several contacts were made
to 911, and [law enforcement was] dispatched to the
scene. Law enforcement arrived at [the location of the
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. WELLS
                      Cite as 28 Neb. App. 118

       going away party] where Wells’ pickup was found parked.
       On seeing weapons in plain sight in the vehicle, law
       enforcement confiscated the weapons in the vehicle,
       which included a .308 caliber rifle and a 12-gauge tacti-
       cal shotgun described by victims, as well as high-capacity
       magazines for the shotgun and three other weapons.
          The juveniles, victims’ names and ages at the time of
       the offense: [W.F.], 17 years old; [C.H.], 17 years old;
       [T.B.], 16 years old; and [B.K.], 15 years old. These
       events did take place in Greeley County, Nebraska.
Upon inquiry from the district court, the State said that B.B.
was 20 years old. When asked by the court why he wanted
to fight W.F., Wells stated, “Alcohol. There was some stuff
between a girlfriend and my kid.” And when asked why he
was driving around with guns in his vehicle, Wells responded,
“We were trap shooting earlier that day.” He further stated, “I
always have my .22 and my .308 with me. That’s just one gun
I always carried, and then the rest were shotguns that we had
there to use to trap shoot.” Defense counsel also informed the
court that the going away party was at a trapshooting facil-
ity. The district court accepted Wells’ no contest pleas to each
count and found him guilty of the same. The case was set
for sentencing.
    After a hearing on February 25, 2019, the district court
sentenced Wells to 5 to 10 years’ imprisonment on count I, 5
to 10 years’ imprisonment on count II, 3 years’ imprisonment
on count III, 1 year’s imprisonment each on counts IV, V, and
VI, and 6 months’ imprisonment on count VII. The sentences
in counts II through VII were to be served concurrently with
each other, but consecutively to count I. Wells was given credit
for 4 days’ time served. Additionally, Wells was ordered to
pay restitution in the amount of $606.94 to W.F. and $343.86
to C.H.; restitution was to be paid “jointly and severally with
. . . Vanderheiden within 2 years of [Wells’] final release date
from imprisonment.”
    Wells appeals.
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. WELLS
                      Cite as 28 Neb. App. 118

                 ASSIGNMENT OF ERROR
   Wells assigns the district court erred by imposing exces-
sive sentences.
                  STANDARD OF REVIEW
   [1] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Leahy, 301 Neb. 228, 917 N.W.2d
895 (2018).
                           ANALYSIS
   Wells asserts that the district court imposed excessive sen-
tences and that upon consideration of all of the appropriate
sentencing factors, and considering mitigating circumstances,
an overall lesser sentence would have been more appropriate.
The State contends that Wells’ sentences were not excessive,
but that the sentences in counts III through VII did involve
plain error, as discussed below.
   [2,3] In determining a sentence to be imposed, relevant fac-
tors customarily considered and applied are the defendant’s (1)
age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-
abiding conduct, and (6) motivation for the offense, as well as
(7) the nature of the offense and (8) the amount of violence
involved in the commission of the crime. Id. The appropriate-
ness of a sentence is necessarily a subjective judgment and
includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life. Id.
   Wells was 20 years old at the time of sentencing. According
to the presentence report (PSR), his marital status was single,
but he was in a relationship with the mother of his child.
He graduated from high school in 2017. At the time of the
presentence investigation interview, he reported having been
employed as a welder for the past week and being previously
employed at a hog barn and as a farmhand.
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. WELLS
                      Cite as 28 Neb. App. 118

   Wells’ criminal history includes a conviction for “MIP-
Alcohol,” for which he was sentenced to 2 days’ jail time and
12 months’ probation; however, his probation was revoked,
and he was sentenced to 15 days’ jail time. He has also been
cited for numerous traffic offenses for which he received
fines. His current convictions were for the amended charges
of possession of a firearm during the commission of a felony,
kidnapping W.F., making terroristic threats against C.H., the
second degree false imprisonments of T.B. and B.K., the third
degree assault of B.B., and “Criminal Mischief $500-$1,500”
for damage caused to W.F.’s pickup.
   The probation officer conducted a “Level of Service/Case
Management Inventory.” Wells was assessed as an overall
“[m]edium [h]igh” risk to reoffend. He scored “[h]igh” in
the criminogenic risk factor domains for leisure/recreation
and alcohol/drug problem. He scored “[m]edium” risk in the
domains for criminal history, companions, procriminal attitude/
orientation, and antisocial pattern. And he scored “[v]ery [l]ow”
risk in the domains for education/employment and family/
marital. He scored in the “problem-risk range” in the areas of
alcohol and violence on the “Substance Abuse Questionnaire.”
During the presentence investigation interview, Wells reported
that his father used to be an alcoholic and was addicted to
opiates, but has been clean for some unknown period of time.
Wells reported first trying alcohol around age 14, consuming
alcohol “‘a lot’” from ages 16 to 18, and consuming alcohol
almost every night by the age of 19. He reported that he last
used alcohol the night of the incident that led to his current
convictions. After his arrest, he attended treatment from May
to June 2018, where he was diagnosed with “Alcohol Use
Disorder Severe.” Wells reported that the day of the incident
leading to his convictions involved trapshooting and alcohol
consumption. According to the PSR, Wells “does feel he was
in the wrong in this incident as he stated, ‘this is completely
stupid and I was not thinking straight.’” “In regard to the vic-
tims, [Wells] stated this was a ‘stupid drunk incident.’” Wells
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                          STATE v. WELLS
                       Cite as 28 Neb. App. 118

“reported this is not the only time an incident like this has
happened,” but “he ‘just got caught this time.’” According to
the PSR, Wells was on probation when this incident occurred.
The probation officer stated, “Considering the nature of this
incident, this officer feels incarceration is appropriate. I would
consider [Wells] an appropriate candidate for probation/
post-release supervision with the class of crimes he is eligible
for.” However, the probation officer recommended certain
conditions if the court were to sentence Wells to probation or
post-release supervision.
   At the sentencing hearing, Wells stipulated to a restitu-
tion payment (jointly and severally) of $606.94 to W.F. and
$343.86 to C.H. The State read victim impact statements by
C.H. and W.F. on the record; the statements noted emotional
and psychological damage from the incident.
   The State argued that “probation won’t work at all” as Wells
had been “been given probation and he did not comply with
probation.” The State also claimed Wells’ “behavior of bul-
lying and physical violence has been escalating since he was
14 years old.” (We note the PSR notes “multiple disciplinary
issues” when Wells was in school to include having a rifle
on school property and suspensions due to bullying, violat-
ing off-campus lunch policies, and showing disrespect toward
teachers. Additionally, in C.H.’s victim impact statement, he
recounted being assaulted by Wells in the past, as well as
Wells’ assaulting another person in the past.) The State noted
Wells’ actions were not provoked by his victims and argued
that “insignificant imprisonment term[s] would depreciate the
seriousness of these crimes, [and] promote disrespect for
the law.”
   Wells’ counsel provided some background as to Wells which
counsel believed was “critically important in explaining how
we arrive here.” Counsel noted that Wells comes from a fam-
ily with divorced parents (for which Wells blames himself)
and alcoholism. After his grandfather passed away, Wells had
a “downhill spiral” and drank more. Later, Wells was in a car
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                          STATE v. WELLS
                       Cite as 28 Neb. App. 118

accident with some friends; he was not the driver, but was
the first to discover one of his friends had been killed in the
accident. Rather than seek help through counseling, Wells con-
tinued to drink. Counsel stated:
      [A]ll of these things are building up inside of [Wells] and
      it culminated in what we are here for today; an incident
      that was alcohol-fueled and . . . was the result of alcohol
      and anger . . . and just a lot of problems that hadn’t been
      addressed that should have been addressed earlier.
Counsel argued that Wells did not show up looking to use
his guns as weapons, but, rather, he was “shooting trap with
these kids.” Counsel stated, “I don’t think it would have hap-
pened but for the alcohol, and but for the fact that they were
at a shooting range with guns.” Counsel noted that Wells went
directly from jail to residential treatment and completed that
program. Further, Wells “stepped up to his obligations” to
his child. Counsel asked the district court to order a sentence
of probation.
   Wells spoke in his own behalf and apologized to “all you
guys and families.” He also recounted his upbringing, his
grandfather’s passing, the car accident he was in, and how
he coped by drinking alcohol. He stated he was glad he
went to treatment following this incident because “[i]t needed
to happen.”
   The district court stated that it had considered the relevant
sentencing factors. The court acknowledged that Wells was
present when his codefendant was sentenced. The court added:
      These are the most difficult kind of cases for me as a
      Judge. And, I understand that you had some difficulties
      that maybe not every kid has to deal with, but there’s
      something going on with you where your sorrow is
      transferred to anger and violence . . . . That’s something
      that . . . the public needs to be protected from. . . . Here
      you’re at a party, you want to fight these people, I still
      don’t have a real good reason as to why you wanted to
      fight them. . . .
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. WELLS
                      Cite as 28 Neb. App. 118

          [T]hey could not have done more to avoid any con-
       frontation with you, yet you persisted while they were at
       the party trying to fight them. You had to be held back.
       They escape you once, you track them down again. . . .
       [D]runk or not, that is not normal behavior . . . .
The court also questioned the reason Wells was carrying
around tactical weapons and high-capacity magazines, noting
that it was “one thing” to have a shotgun if they were trap-
shooting. Wells stated that the tactical rifle was a shotgun and
that he brought it for trapshooting. The court also noted that
Wells forced the victims into different vehicles at gunpoint and
threatened them and that if B.B. would not have shown up to
diffuse the situation “who knows what could have happened”;
but “instead of thanking [B.B.,] [Wells] and . . . Vanderheiden
assault[ed] him, too, at gunpoint.” The court found that Wells
was not a good candidate for probation and sentenced him to 5
to 10 years’ imprisonment on count I (possession of a firearm
during the commission of a felony), 5 to 10 years’ imprison-
ment on count II (kidnapping), 3 years’ imprisonment on count
III (terroristic threats), 1 year’s imprisonment on count IV
(second degree false imprisonment), 1 year’s imprisonment on
count V (second degree false imprisonment), 1 year’s impris-
onment on count VI (third degree assault), and 6 months’
imprisonment on count VII (criminal mischief). The sentences
in counts II through VII were to be served concurrently with
each other, but consecutively to count I. Wells was given credit
for 4 days’ time served. Additionally, Wells was ordered to
pay restitution in the amount of $606.94 to W.F. and $343.86
to C.H.; restitution was to be paid “jointly and severally with
. . . Vanderheiden within 2 years of [Wells’] final release date
from imprisonment.”
                     Counts I and II
  Wells was convicted of possession of a firearm during the
commission of a felony (count I) and kidnapping (count II),
each a Class II felony. A Class II felony is punishable by
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. WELLS
                      Cite as 28 Neb. App. 118

1 to 50 years’ imprisonment. See Neb. Rev. Stat. § 28-105(1)
(Reissue 2016). The district court sentenced Wells to 5 to 10
years’ imprisonment for possessing a firearm during the com-
mission of a felony and 5 to 10 years’ imprisonment for the
kidnapping, with the sentences to be served consecutively. His
sentences were within the statutory range. However, Wells
argues the sentences constituted an abuse of discretion “when
considered in the context of Wells’ background; his relatively
minor and non-violent criminal record; the unique factual cir-
cumstances that led to the presence of the firearms; and the
significantly harsher punishment imposed upon Wells in rela-
tion to . . . Vanderheiden.” Brief for appellant at 10. We note
that Vanderheiden pled no contest to and was convicted of
the same charges as Wells and that Vanderheiden’s sentences
were the same as Wells’ sentences, except that Vanderheiden
was sentenced to 3 to 10 years’ imprisonment for kidnap-
ping rather than 5 to 10 years’ imprisonment. See State
v. Vanderheiden, No. A-19-279, 2019 WL 3934770 (Neb.
App. Aug. 20, 2019) (selected for posting to court website).
Having considered the relevant factors in this case, we find
that Wells’ sentences on counts I and II were not excessive
or an abuse of discretion and that his sentences are therefore
affirmed. See State v. Leahy, 301 Neb. 228, 917 N.W.2d 895
(2018) (sentence imposed within statutory limits will not be
disturbed on appeal absent abuse of discretion by trial court;
it is within trial court’s discretion to direct that sentences
imposed for separate crimes be served either concurrently
or consecutively).
                           Count III
   [4] Wells was convicted of one count of terroristic threats
(Count III), a Class IIIA felony. He was sentenced to 3 years’
imprisonment. A Class IIIA felony is punishable by up to
3 years’ imprisonment and 18 months’ post-release super-
vision, a $10,000 fine, or both; there is no minimum sen-
tence of imprisonment, but there is a minimum of 9 months’
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        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. WELLS
                      Cite as 28 Neb. App. 118

post-release supervision if imprisonment is imposed. See
§ 28-105. However, a person sentenced to imprisonment for
a Class II felony and sentenced concurrently or consecutively
to imprisonment for a Class IIIA felony shall not be subject to
post-release supervision. See § 28-105(6). Additionally, Neb.
Rev. Stat. § 29-2204.02(4) (Reissue 2016) provides in relevant
part that for any sentence of imprisonment for a Class IIIA
felony for an offense committed on or after August 30, 2015,
imposed consecutively or concurrently with a sentence of
imprisonment for a Class II felony, the court shall impose an
indeterminate sentence within the applicable range in § 28-105
that does not include a period of post-release supervision. See,
also, State v. Vanness, 300 Neb. 159, 912 N.W.2d 736 (2018)
(indeterminate sentence is minimum term and maximum term
or range of time for which defendant is to be incarcerated, even
if minimum and maximum number are same).
   The district court sentenced Wells to 3 years’ imprisonment
for making terroristic threats, with the sentence concurrent with
count II, but consecutive to count I (both Class II felonies).
Having considered the relevant factors in this case, we find
that Wells’ sentence on count III was not excessive. However,
as noted by the State, the sentence on count III needed to be an
indeterminate sentence pursuant to § 29-2204.02(4), because
Wells was also sentenced on the two Class II felonies; the
court’s imposition of a determinate sentence, rather than an
indeterminate sentence, on count III constitutes plain error.
Given this plain error, we vacate Wells’ sentence for his con-
viction on count III and remand that count for resentencing.
See State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018)
(finding plain error and vacating sentences and remanding
cause for resentencing where sentences did not comply with
§ 29-2204.02(4)). See, also, State v. Vanderheiden, supra.

                  Counts IV Through VII
  A similar issue exists with respect to the sentences imposed
on the four misdemeanor counts. Wells was convicted of two
                              - 132 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. WELLS
                      Cite as 28 Neb. App. 118

counts of second degree false imprisonment, each a Class I
misdemeanor (counts IV and V); one count of third degree
assault, a Class I misdemeanor (count VI); and one count of
“Criminal Mischief $500-$1,500,” a Class II misdemeanor
(count VII). A Class I misdemeanor is punishable by up to 1
year’s imprisonment, a $1,000 fine, or both. See Neb. Rev.
Stat. § 28-106 (Reissue 2016). And a Class II misdemeanor is
punishable by up to 6 months’ imprisonment, a $1,000 fine, or
both. See § 28-106.
   [5] Ordinarily, a sentence of imprisonment for a misde-
meanor is served in the county jail, but when the sentence is to
be served concurrently or consecutively with a felony convic-
tion and the combined sentences total more than 1 year, the
misdemeanor sentence may be served under the jurisdiction
of the Department of Correctional Services. See § 28-106(2).
When a sentence for a misdemeanor is imposed consecutively
or concurrently with sentences for felony convictions, the
felony classifications will dictate whether the misdemeanor
sentence should be a determinate or indeterminate sentence.
Section 29-2204.02(5) states:
      For any sentence of imprisonment for a misdemeanor
      imposed consecutively or concurrently with a sentence
      of imprisonment for a Class III, IIIA, or IV felony for an
      offense committed on or after August 30, 2015, the court
      shall impose a determinate sentence within the applicable
      range in section 28-106 unless the person is also commit-
      ted to the Department of Correctional Services in accord
      ance with section 29-2204 for (a) a sentence of imprison-
      ment for a Class III, IIIA, or IV felony committed prior to
      August 30, 2015, or (b) a sentence of imprisonment for a
      Class I, IA, IB, IC, ID, II, or IIA felony.
   In this case, the misdemeanor sentences were imposed
concurrently with count III (terroristic threats, a Class IIIA
felony), which ordinarily would have called for determinate
sentences. However, as noted above, § 29-2204.02(5) pro-
vides an exception to the determinate sentences, because
                              - 133 -
        Nebraska Court of Appeals Advance Sheets
             28 Nebraska Appellate Reports
                         STATE v. WELLS
                      Cite as 28 Neb. App. 118

Wells was also committed to the Department of Correctional
Services for sentences of imprisonment on his convictions for
his Class II felonies.
   The district court sentenced Wells to determinate sentences
of 1 year’s imprisonment for each count of second degree false
imprisonment and for the third degree assault, and it sentenced
Wells to 6 months’ imprisonment for the criminal mischief.
The misdemeanor sentences (counts IV, V, VI, and VII), along
with count II (Class II felony) and count III (Class IIIA fel-
ony), were to run concurrently with each other but consecutive
to count I (Class II felony). Having considered the relevant
factors in this case, we find that Wells’ sentences on counts
IV through VII were not excessive. However, the sentences on
counts IV through VII needed to be indeterminate sentences
pursuant to § 29-2204.02(5), because Wells was also sentenced
on a Class IIIA felony and two Class II felonies; the court’s
imposition of determinate, rather than indeterminate, sentences
on counts IV through VII constitutes plain error. Given this
plain error, we vacate Wells’ sentences for his convictions on
counts IV through VII and remand those counts for resentenc-
ing. See State v. Thompson, 301 Neb. 472, 919 N.W.2d 122
(2018). See, also, State v. Vanderheiden, No. A-19-279, 2019
WL 3934770 (Neb. App. Aug. 20, 2019) (selected for posting
to court website).
                        CONCLUSION
   For the reasons stated above, we affirm the sentences
imposed on Wells as to counts I and II. However, we find
plain error as to the sentences on the remaining counts. Thus,
we vacate the sentences imposed on counts III through VII,
and we remand the matter to the district court for resentencing
on counts III through VII in accordance with § 29-2204.02(4)
and (5).
                    Affirmed in part, and in part vacated
                    and remanded for resentencing.


 NO. 4-95-0926WC

IN THE APPELLATE COURT OF ILLINOIS

 FOURTH DISTRICT

Industrial Commission Division

THE CITY OF SPRINGFIELD,			)  Appeal from

Appellant,			)  Circuit Court of

v.				     )  Sangamon County

THE INDUSTRIAL COMMISSION et al.   )  No. 95MR116

(B.K., Appellee).				)

     )  Honorable

     )  Donald M. Cadagin,

 						     )  Judge Presiding.

JUSTICE HOLDRIDGE delivered the opinion of the court:

Respondent, City of Springfield, appeals from an order of the Industrial Commission (Commission) that awarded benefits to B.K. (claimant) for a psychological injury suffered after her supervisor forced her to engage in five acts of nonconsensual sexual intercourse over a five-month period of time.  Claimant maintains she suffers from debilitating depression because of the assaults.  Respondent maintains that the five encounters were consensual and that claimant suffered no physical trauma from which her present psychological condition could have arisen.  At issue is whether the Commission erred in finding claimant established a compensable psychic injury under the "physical-mental injury" theory of compensability.  See
Pathfinder Co. v. Industrial Comm'n
, 62 Ill. 2d 556, 563, 343 N.E.2d 913, 917 (1976).  For the reasons discussed below, we affirm the decision of the Commission.

Because the parties and this court are familiar with the facts of this case, it is unnecessary to recite them at length.  Only those facts necessary to an understanding of our disposition of this matter will be discussed.

Claimant testified that during the period  August 1991 through January 1992, her supervisor made verbal and physical sexual advances toward her and forced her to engage in nonconsensual intercourse on at least five occasions at work and elsewhere.  Claimant testified that although she resisted and told him  "don't," he continued to grab her, pin her down, and pin her against walls.  Claimant also testified that, on one occasion, while she was resisting his advances, he mentioned the name of another female coworker and implied that she could take claimant's job.  Claimant stated that she did not report this conduct because she was afraid no one would believe her and she was afraid of losing her job.

In February 1993, after hearing that another female co-worker  had filed sexual harassment charges against the same supervisor, claimant reported her incidents to her supervisor's superiors.  Thereafter, claimant became very emotional, could not sleep, and was frightened to be at work.  After the incidents became public, she stated that she was isolated by coworkers, some of whom  verbally and physically confronted her.  She was made the subject of graffiti and made to sit next to her supervisor during certain meetings.  Claimant was removed from the direct supervision of the supervisor who allegedly assaulted her.

Claimant testified that during March 1993, she had contemplated suicide.  On April 15, 1993, claimant sought counseling from Kevin McAvoy, a clinical psychologist under contract to the respondent's employee assistance program.  He diagnosed claimant as suffering from generalized anxiety disorder and post-traumatic stress disorder due to the sexual harassment and assaults at work.

McAvoy referred claimant to Mary Ossowski, a clinical social worker, who first counseled claimant on April 26, 1993.  Ossowski treated claimant "for therapeutic issues arising from the personal trauma of being a victim of sexual harassment in her work place."  Ossowski referred claimant to a psychiatrist, Dr. Joseph Bohlen, who gave an initial diagnosis of adjustment disorder with depressed mood.  He treated her with antidepressants and placed her in group therapy for victims of sexual harassment.  After further tests and consultations, Dr. Bohlen diagnosed major depression, single episode.

On June 29, 1994, claimant was demoted and reassigned to work under the supervision of the supervisor who allegedly assaulted her.  Ossowski noted that claimant's demotion, coupled with the fact that she was forced to work again under that particular supervisor, caused undue emotional distress, and it would have created irreparable emotional harm to claimant if she stayed in such environment.  Claimant has not reported to duty as ordered since June 29, 1994.

On July 18, 1994, Dr. Bohlen removed claimant from work due to her emotional state.  He opined that there was a high likelihood that claimant's depression and anxiety were reactive, and their onset was caused by the sexual harassment she received at work, noting that as the conditions at work worsened, so did her depression.  He opined further that claimant showed all the signs of adult sexual abuse, and the fact that she had been the victim of child abuse made the adult sexual abuse more debilitating.  Dr. Bohlen explained that a position of authority is often used in place of physical force and may be more damaging.  He believed claimant viewed her demotion as punishment for making the allegations against her supervisor and opined claimant could not return to work.

At the arbitration hearing, the respondent attempted to establish that the sexual encounters between claimant and her supervisor had been completely consensual.  However, the supervisor alleged to have assaulted claimant did not testify at the arbitration hearing to refute claimant's allegations, and the Department failed to offer any rebutting medical evidence.

The arbitrator determined that claimant had failed to prove an accident arising out of and in the course of her employment and denied claimant benefits on that basis.  The Commission, with one dissent, reversed the arbitrator, finding that claimant sustained accidental injuries arising out of and in the course of her employment on April 15, 1993, awarded her temporary total disability benefits in the amount of $712.92 per week for the period of June 24, 1994, through November 7, 1994, and awarded her $7,370 for medical expenses.  The circuit court confirmed the Commission, and the respondent  appealed.

ANALYSIS

Claimant sought, and the Commission granted, compensation for mental incapacity allegedly resulting from a work-related injury.  In
Pathfinder
, our supreme court held
that psychological injuries could be compensable in either of two ways: (1) where the psychological injuries were related to and caused by a physical trauma or injury,
i.e.
, "physical-mental" trauma, or (2) where the psychological injuries were caused by "a sudden, severe emotional shock traceable to a definite time, place and cause which causes psychological injury or harm *** though no physical trauma or injury was sustained,"
i.e.
, "mental-mental" trauma.
Pathfinder
, 62 Ill. 2d at 563, 343 N.E.2d at 917.  The "mental-mental" theory of recovery is generally recognized as a more difficult basis for trying a case in which the claimant is seeking to prove his or her psychological injury is compensable.  See
Chicago Board of Education v. Industrial Comm'n
, 169 Ill. App. 3d 459, 466, 523 N.E.2d 912, 917 (1988).  Under the "physical-mental" theory, the work-related physical trauma need not be the sole causative factor, but need only be a causative factor of the subsequent mental condition.  See
May v. Industrial Comm'n
, 195 Ill. App. 3d 468, 487, 552 N.E.2d 258, 270 (1990).

Prior to the court's holding in
Pathfinder
, the "physical-mental" theory of recovery had been the only method of establishing compensability for psychological injuries.  It was universally accepted in this state that mental disability was compensable "only if it was precipitated by
physical

contact
 or injury traceable to a definite time, place and cause."  (Emphasis added.)
General Motors Parts Division v. Industrial Comm'n
, 168 Ill. App. 3d 678, 685, 522 N.E.2d 1260, 1265 (1988).  The
Pathfinder
 court also noted that minor physical contact or contact that left no objective manifestation,
i.e.
, bruises, contusions, broken bones,
et

cetera
, was sufficient to cause psychological injuries to be compensable.
Pathfinder
, 62 Ill. 2d at 564, 343 N.E.2d at 917.

In the matter
sub

judice
, the Commission analyzed the record based upon the "physical-mental" rather than the "mental-mental" theory of compensation for psychological injuries.  The Commission held that the five acts of nonconsensual sexual intercourse between claimant and her supervisor were in the nature of physical assaults upon her and claimant's psychological injuries were therefore caused by a physical "contact," trauma or injury more appropriately analyzed under the "physical-mental" model.

The respondent maintains that the Commission erred in finding that the physical contact between claimant and her supervisor was nonconsensual and therefore in the nature of a physical assault or trauma.  Respondent also maintains that the Commission erred in using the "physical-mental" theory.  We disagree.

Whether a supervisor's forcing of nonconsensual sexual intercourse upon an employee can constitute physical contact for purposes of establishing compensation for psychological injuries under the "physical-mental" theory is a question of first impression in our courts.

After reviewing the case law, we are convinced that the physical contact explicit in nonconsensual sexual intercourse is sufficient to meet the requirement of physical contact necessary for the "physical-mental" trauma theory of recovery.  Rape, sexual assault, and battery are all physical bodily injury crimes in Illinois.  See 720 ILCS 5/12-13, 12-3 (West 1992).  For purposes of battery and aggravated sexual assault, bodily harm may be shown by either actual injury, such as bruises, or may be inferred by the trier of fact based upon common knowledge.
People v. Lopez
, 222 Ill. App. 3d 872, 879, 584 N.E.2d 462, 467 (1991).  Therefore, we find that it was proper for the Commission to infer that a nonconsensual sexual assault was likely to involve physical trauma, and it was appropriate to characterize claimant's injury as a "physical-mental" trauma, as opposed to a "mental-mental" trauma.  	We also reject respondent's contention that the Commission erred in finding that the supervisor's actions caused claimant's psychological injuries.  The respondent maintains that no physical trauma took place, as the sexual acts were consensual, and that, therefore, the actions by the supervisor could not have caused claimant's subsequent depression.

The question of whether there is a causal connection between a claimant's injury and his or her employment is uniquely within the province of the Commission (
Organic Waste Systems v. Industrial Comm'n
, 241 Ill. App. 3d 257, 260, 608 N.E.2d 1243, 1245 (1993)), and its decision will not be disturbed on review unless it is against the manifest weight of the evidence (
Cognato v. Industrial Comm'n
, 242 Ill. App. 3d 50, 55, 609 N.E.2d 783, 786 (1993)).  A finding is not against the manifest weight of the evidence unless an opposite conclusion is clearly evident.
Hicks v. Industrial Comm'n
, 251 Ill. App. 3d 320, 327, 621 N.E.2d 293, 297 (1993).

In this case we cannot say that the Commission's conclusion that claimant was physically assaulted by her supervisor is against the manifest weight of the evidence.  Claimant's unrefuted testimony described incidents of being held and pinned down, as well as other unconsented physical contact.  Although no evidence was presented to show that the incidents were consensual, respondent argued that claimant's conduct in not reporting her supervisor to authorities or otherwise taking steps to protect herself indicate that the acts of sexual intercourse were consensual.  While this inference is plausible, it is well settled that in resolving questions of fact, it is within the province of the Commission to assess the credibility of witnesses, resolve conflicts in the evidence, assign weight to be accorded the evidence, and draw reasonable inferences from the evidence.
Kirkwood v. Industrial Comm'n
, 84 Ill. 2d 14, 20, 416 N.E.2d 1078, 1080 (1981).

Claimant's unrebutted testimony supports the Commission's conclusion that her supervisor committed repeated sexual assaults against her, and unrefuted medical evidence showed that, as a result, she suffered from post-traumatic stress disorder.  It cannot be said, therefore, that the conclusion opposite that of the Commission's is clearly apparent from the record.

Finally, we note that it is well settled that a physical assault by a coworker can constitute an accidental injury under the Workers' Compensation Act (820 ILCS 305/1
et

seq
. (West 1992)).
Meerbrey v. Marshall Field & Co
.
, 139 Ill. 2d 455, 463, 564 N.E.2d 1222, 1226 (1990);
Collier v. Wagner Castings Co.
, 81 Ill. 2d 229, 238, 408 N.E.2d 198, 202 (1980).

Based upon the foregoing, the circuit court of Sangamon County, which confirmed the Commission's finding that claimant proved accidental injuries arising out of in the course of her employment, is affirmed.

Affirmed.

McCULLOUGH, P.J., and RAKOWSKI, COLWELL, and RARICK, JJ., concur.


60 Cal.2d 868 (1964)
THE PEOPLE, Plaintiff and Respondent,
v.
CLARENCE SPRIGGS, Defendant and Appellant.
Crim. No. 7601.
Supreme Court of California. In Bank.
Feb. 25, 1964.
 Herbert E. Selwyn, under appointment by the Supreme Court, for Defendant and Appellant.
 Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and C. A. Collins, Deputy Attorney General, for Plaintiff and Respondent.
 TRAYNOR, J.
 The trial court sitting without a jury convicted defendant of possessing heroin in violation of Health and Safety Code, section 11500. He appeals from the judgment of conviction, contending that the trial court erred in refusing to admit certain evidence.
 The evidence is conflicting. Officer Cochran testified that from a darkened doorway he and two other police officers observed defendant and Mrs. Albertina Roland together on the street on the evening of February 17, 1962. When defendant was about 40 feet from the officers, he bent over and placed his hand under a hedge. He withdrew his hand with a piece of paper in it, looked around, again placed his hand under the hedge, and then stood up and began walking with his companion toward the officers. When they reached the doorway, Officer Cochran stepped out and shouted "Police Officer." Defendant jumped back and threw a balloon and a piece of paper to the ground. Officer Cochran picked up the balloon and paper, and observed a white powder in the balloon. The officers then arrested defendant and Mrs. Roland. At the trial the parties stipulated that the powder was heroin.
 Defendant had just been released from prison in the afternoon of the day of the arrest. He testified that he did not purchase or receive narcotics from Mrs. Roland or any other person on that day and that he did not bend over or place his *870 hand under any hedge, but did stop momentarily while Mrs. Roland bent over to fix her stockings. When the officers accosted him they poked him as if trying to make him gag, and continued to beat him for about 10 minutes until an officer said that he found something on the sidewalk. Defendant testified that he did not throw anything to the ground and that when he and Mrs. Roland were in the police car, an officer stated "One of you had this narcotics, and you are going to tell us which one of you had it." Officer Cochran testified that Mrs. Roland was known by the police as a user of narcotics. Defendant's counsel cross-examined Officer Cochran regarding Mrs. Roland's arrest as follows: "Q. Did you talk to her at the time you arrested her? A. Yes. Q. Did you ask her if the narcotics that you allegedly found were hers? A. Yes, I did. Q. What did she say?" The prosecutor objected on the grounds of immateriality and hearsay, and the trial court sustained the objection. Defendant did not rephrase the question or make an offer of proof of what the expected answer might be. [1a] Defendant contends that the witness should have been allowed to answer the question on the ground that the hearsay rule does not preclude admission of a declaration against penal interest.
 In 1892 this court held that a hearsay declaration against penal interest was not admissible. (People v. Hall, 94 Cal. 595, 599 [30 P. 7]; see also People v. Raber, 168 Cal. 316, 319 [143 P. 317]; Ryan v. Bank of Italy, 106 Cal.App. 690, 695 [289 P. 863].) Although still the law in a majority of jurisdictions, this rule has been vigorously criticized by the scholars. (5 Wigmore, Evidence (3d ed.)  1476, 1477; McCormick, Evidence, 549-553; McBaine, Cal. Evidence Manual,  813; Model Code of Evidence, Rule 509; Uniform Rules of Evidence, Rule 63(10); Holmes, J., dissenting in Donnelly v. United States, 228 U.S. 243, 277 [33 S.Ct. 449, 57 L.Ed. 820].) The traditional rule excluding hearsay declarations against penal interest was first established by the House of Lords in 1844 in the Sussex Peerage case, 11 Clark & F. 85. Dean Wigmore points out that the Sussex case was a backward step from earlier English cases admitting declarations against interest. (5 Wigmore, supra,  1476.) Exclusion of declarations against penal interest now rests only on the historical accident of the Sussex case. (See McBaine, supra,  813; 5 Wigmore, supra,  1477.) A minority of courts, however, have departed from the Sussex case and admit hearsay declarations against penal interest. (Hines v. Commonwealth, 136 Va. 728 [117 S.E. 843, 846-850, 35 A.L.R. 431] [hearsay *871 testimony of decedent's confession admitted in behalf of defendant]; Newberry v. Commonwealth, 191 Va. 445 [61 S.E.2d 318, 325-326] [third person's written confession admitted although he refused to testify claiming right against self-incrimination]; Sutter v. Easterly, 354 Mo. 282 [189 S.W.2d 284, 289-290, 162 A.L.R. 437] [third person's affidavit making statements against penal interest admitted although he refused to testify claiming right against self-incrimination; hearsay declaration not admissible against the defendant in a criminal prosecution, State v. Gorden, 356 Mo. 1010 [204 S.W.2d 713, 715]; but cf. Osborne v. Purdome (Mo.) 250 S.W.2d 159, 163]; Blocker v. State, 55 Tex.Crim. 30 [114 S.W. 814, 815, 131 Am.St.Rep. 772] [hearsay declaration admissible if prosecution's evidence solely circumstantial, and it is shown that declarant might have committed the crime]; People v. Lettrich, 413 Ill. 172 [108 N.E.2d 488, 492] [third person's confession admissible where prosecution's sole evidence was defendant's repudiated confession]; Brenman v. State, 151 Md. 265 [134 A. 148, 150-151, 48 A.L.R. 342] [hearsay declaration of paternity admitted in behalf of defendant prosecuted for bastardy]; Thomas v. State, 186 Md. 446 [47 A.2d 43, 45-46 167 A.L.R. 390] [hearsay declaration admissible because declarant available as a witness]; see also McClain v. Anderson Free Press, 232 S.C. 448 [102 S.E.2d 750, 760-762][approving rule admitting declarations against penal interest, but holding evidence inadmissible under facts of case]; United States v. Annunziato (2d Cir.) 293 F.2d 373, 378 [admitting evidence on other grounds, but criticizing rule regarding penal interest]; In re Forsythe's Estate, 221 Minn. 303 [22 N.W.2d 19, 25, fn. 3, 167 A.L.R. 1] [dictum indicating admissibility of declarations against penal interest]; In re Winineger's Petition (Okla. Crim.App.) 337 P.2d 445, 452-454 [dissenting opinion].)
 In 1872 the California Legislature codified many of the common law rules of evidence, including some of the traditional rules governing admissibility of hearsay evidence. (Code Civ. Proc.,  1825.) The codification of the hearsay rule has remained largely unaltered, although in some instances the Legislature has added to its original enactment (e.g., Uniform Business Records as Evidence Act, Code Civ. Proc.,  1953e-1953h). The Legislature, however, did not freeze the law of evidence to the rules set forth in the Code of Civil Procedure or other statutes. (See Holland v. Zollner, 102 Cal. 633, 637 [36 P. 930, 37 P. 231]; People v. Ah Sam, *872 41 Cal. 645, 653.) Numerous questions arise on which the Legislature has been silent or inexplicit. The courts must answer these questions and develop judicially the law of evidence (People v. Cahan, 44 Cal.2d 434, 442 [282 P.2d 905, 50 A.L.R.2d 513]; Williams v. Kidd, 170 Cal. 631, 649 [151 P. 1, Ann. Cas. 1916E 703]) in the light of common law principles and the basic objectives of the statutes. (See Decorative Carpets, Inc. v. State Board of Equalization, 58 Cal.2d 252, 256 [23 Cal.Rptr. 589, 373 P.2d 637]; Stone, The Common Law in the United States, 50 Harv.L.Rev. 4; Pound, Common Law and Legislation, 21 Harv.L.Rev. 383, 388.) Thus, we have continued to supplement the common law of evidence as it was codified in 1872, restricting the admissibility of certain evidence (People v. Cahan, supra, at p. 445 [excluding illegally obtained evidence]; Sappenfield v. Main St. & Agricultural Park R. R. Co., 91 Cal. 48, 61-63 [27 P. 590] [excluding evidence of defendant's safety measures subsequent to accident]; Citti v. Bava, 204 Cal. 136, 139 [266 P. 954] [excluding evidence of defendant's liability insurance]; see Brown v. Pacific Elec. Ry. Co., 79 Cal.App.2d 613, 615-619 [180 P.2d 424] [excluding evidence of plaintiff's settlement with a third person]; People v. Burns, 109 Cal.App.2d 524, 541-542 [241 P.2d 308, 242 P.2d 9] [excluding gruesome photograph]), and expanding the scope of admissible evidence (Johnsen v. Oakland, S.L. & H.E. Ry., 127 Cal. 608, 611 [60 P. 170] [admitting lay opinion of train's speed]; Healy v. Visalia etc. R. R. Co., 101 Cal. 585, 589-590 [36 P. 125] [admitting passenger's opinion of effect of crash impact on an "ordinary person"]; Robinson v. Exempt Fire Co., 103 Cal. 1, 4-6 [36 P. 955, 42 Am.St.Rep. 93, 24 L.R.A. 715] [admitting lay opinion of plaintiff's health]; People v. Slobodion, 31 Cal.2d 555, 559-560 [191 P.2d 1] [admitting extrajudicial identification of criminal defendant]; People v. Manoogian, 141 Cal. 592, 594-598 [75 P. 177] [admitting witness' observations of defendant's appearance as to his "being or acting rational or irrational"]; see cases infra regarding admissible hearsay evidence).
 The basis for excluding hearsay evidence in California is Code of Civil Procedure section 1845, which states that "A witness can testify of those facts only which he knows of his own knowledge ... except in those few express cases in which ... the declarations of others, are admissible." The "express cases" referred to in section 1845 are commonly known as exceptions to the hearsay rule. The types of admissible hearsay evidence recognized in the common law in 1872 were then *873 codified in the Code of Civil Procedure. (Code Civ. Proc.,  1849, 1850, 1852, 1853, 1870, 1901, 1905, 1920, 1945, 1946.) [2] Section 1845, however, simply states the common law principle of inadmissibility of hearsay evidence while recognizing instances of admissible hearsay evidence. The types of admissible hearsay evidence are not confined to those enumerated in the statute. Building on the basic principles of the rules of evidence as codified in 1872 other "express cases" have been evolved judicially.
 Thus, this court developed the rule that admits hearsay declarations to show the state of mind of the declarant, both at the time of and before the declaration (Adkins v. Brett, 184 Cal. 252, 255-256 [193 P. 251]; Estate of Carson, 184 Cal. 437, 445 [194 P. 5, 17 A.L.R. 239]; Cripe v. Cripe, 170 Cal. 91, 93 [148 P. 520]; Whitlow v. Durst, 20 Cal.2d 523, 524-525 [127 P.2d 530]; Williams v. Kidd, 170 Cal. 631, 648-652 [151 P. 1, Ann. Cas. 1916E 703]); the rule that admits hearsay declarations to establish the future conduct of the declarant (People v. Selby, 198 Cal. 426, 430 [245 P. 426]; Benjamin v. District Grand Lodge No. 4, 171 Cal. 260, 266-267 [152 P. 731]; People v. Wright, 167 Cal. 1, 8 [138 P. 349]; Union Oil Co. v. Stewart, 158 Cal. 149, 157-158 [110 P. 313, Ann. Cas. 1912A 567]; see People v. Merkouris, 52 Cal.2d 672, 682 [344 P.2d 1]; People v. Alcalde, 24 Cal.2d 177, 185-188 [148 P.2d 627]); the rule that admits hearsay declarations to show the past knowledge of the declarant (People v. One 1948 Chevrolet Conv. Coupe, 45 Cal.2d 613, 620-622 [290 P.2d 538, 55 A.L.R.2d 1272]); the rule that admits hearsay testimony of spontaneous or excited utterances regardless of their contemporaneousness with a "transaction in issue" (Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 581-582 [160 P.2d 21]; Showalter v. Western Pac. R. R. Co., 16 Cal.2d 460, 465-470 [106 P.2d 895]; see Foster v. Pestana, 77 Cal.App.2d 885, 888-889 [177 P.2d 54]; see Code Civ. Proc.,  1850); and the rule that admits hearsay declarations of pain or suffering (Bloomberg v. Laventhal, 179 Cal. 616, 619-620 [178 P. 496]; Lange v. Schoettler, 115 Cal. 388, 393 [47 P. 139]; see Williams v. A.R.G. Bus Co., 47 Cal.App. 568, 570 [190 P. 1036]), and of bodily condition (People v. Brown, 49 Cal.2d 577, 585- 587 [320 P.2d 5]; People v. Wright, 167 Cal. 1, 8 [138 P. 349]; see People v. Thomas, 51 Cal.App. 731, 735-736 [197 P. 677]).
 Code of Civil Procedure section 1853, section 1870, subdivision 4, and section 1946, subdivision 1, contain piecemeal *874 statements of the common law rule admitting hearsay declarations against interest.  [fn. 1] Here again we have gone beyond the 1872 codification. Hearsay declarations against interest are admissible against a party not the decedent's successor in interest, even though not made against the declarant's interest in real property. (Emery v. Pacific Employers Ins. Co., 8 Cal.2d 663, 673-674 [67 P.2d 1046]; see Mayfield v. Fidelity & Cas. Co., 16 Cal.App.2d 611, 617 [61 P.2d 83]; compare Code Civ. Proc.,  1853 and 1870, subd. 4.) We have also admitted hearsay declarations against interest when the declarant is neither deceased nor otherwise unavailable. (Emery v. Pacific Employers Ins. Co., supra, at pp. 673-674.)
 The statutes do not exclude hearsay delcarations against penal interest. Their admissibility must therefore be determined in the light of the principle that "the purpose of all rules of evidence is to aid in arriving at the truth, [and] if it shall appear that any rule tends rather to hinder than to facilitate this result ... it should be abrogated without hesitation." (Williams v. Kidd, 170 Cal. 631, 649 [151 P. 1, Ann. Cas. 1916E 703].)
 [3] When hearsay evidence is admitted it is usually because it has a high degree of trustworthiness. (Lane v. Pacific Greyhound Lines, 26 Cal.2d 575, 582 [160 P.2d 21]; Mayfield v. Fidelity & Cas. Co., 16 Cal.App.2d 611, 617 [61 P.2d 83]; 5 Wigmore, supra,  1420.) Thus, declarations against pecuniary or proprietary interest are admitted because they are unlikely to be false. (5 Wigmore, supra,  1457-1475.) [1b] A declaration against penal interest is no less trustworthy. As we pointed out in People v. One 1948 Chevrolet Conv. Coupe, 45 Cal.2d 613, 622 [290 P.2d 538, 55 A.L.R.2d 1272], a person's interest against being criminally implicated gives reasonable assurance of the veracity of his statement made against that interest. Moreover, since the *875 conviction of a crime ordinarily entails economic loss, the traditional concept of a "pecuniary interest" could logically include one's "penal interest." (Compare the theory that admits a third person's confession of a crime on the ground that the crime was also a tort, thus subjecting the declarant to civil liability for damages, a pecuniary interest. E.g., Weber v. Chicago R. I. & P. Ry. Co., 175 Iowa 358 [151 N.W. 852, 864, L.R.A. 1918A 926]; McCormick, supra,  255, p. 549.) We have concluded, therefore, that the ruling of the trial court was erroneous insofar as it excludes hearsay declarations against penal interest. To the extent that it is contrary to this opinion, People v. Hall, 94 Cal. 595 [30 P. 7] is overruled.
 [4] The question remains whether the admissibility of hearsay declarations against interest depends on the unavailability of the declarant to testify at the trial.  [fn. 2] If Mrs. Roland was deceased, insane, suffering from severe illness, absent from the jurisdiction, or otherwise unavailable as a witness,  [fn. 3] such unavailability provided a necessity for the evidence, thus affording a basis for its admissibility in addition to the trustworthy character of the declaration. (See 5 Wigmore, supra,  1420, 1421, 1456; McCormick, supra, 546, 554.) If she was available, however, the credibility of her extrajudicial statements would not be lessened by that fact. Furthermore, the opportunity for cross-examination would eliminate the basic objection to the hearsay character of the evidence. (See People v. Gould, 54 Cal.2d 621, 626-627 [7 Cal.Rptr. 273, 354 P.2d 865]; McCormick, supra,  39, p. 74; 5 Wigmore, supra,  1362; Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 192-193.) Thus if Mrs. Roland had taken the witness stand and denied possession of the narcotics, her out-of-court declaration against interest would have been admissible to prove the truth of the matter stated (see Emery v. Pacific Employers Ins. Co., supra, at pp. 673-674; Thomas v. State, 186 Md. 446 [47 A.2d 43, 45-46, 167 A.L.R. 390]; McCormick, supra, 554; Uniform Rules of Evidence, Rule 63(10); Model Code of Evidence, Rule 509; see also Dodd v. Cantwell, 179 Cal.App.2d 727, 732 [4 Cal.Rptr. 113]; Mayfield v. Fidelity & Cas. *876 Co., 16 Cal.App.2d 611, 617 [61 P.2d 83]) as well as to impeach her by a prior inconsistent statement (Code Civ. Proc.,  2049, 2052).  [fn. 4] Thus, in the event of a retrial, defense counsel should be allowed to ask Officer Cochran the question objected to, whether or not the unavailability of Mrs. Roland is established.
 [5] There is no merit to the contention that regardless of the hearsay issue the question was properly objected to for immateriality. The Attorney General contends that the question sought to establish ownership of the narcotics, and not possession, which is all that is needed for a violation of the statute. The question was whether Mrs. Roland stated that the narcotics "were hers." If she answered "yes," such evidence, although not conclusive, would clearly be material to the issue of possession. Had the officer been allowed to answer the question, further questions might have brought out that she meant that it was she who had possession. The hearsay objection, however, blocked further inquiry. Since the trial judge correctly applied the then existing law on the hearsay issue, rephrasing the question or making an offer of proof would have been fruitless. Defendant is therefore not precluded from raising the hearsay issue on appeal. (See People v. Kitchens, 46 Cal.2d 260, 262-263 [294 P.2d 17].)
 Denying defendant the opportunity to establish that Mrs. Roland admitted possession of the heroin was prejudicial to him. With such an admission before it, there is a reasonable probability that the trial court would have believed defendant's testimony and would have concluded that the officer was mistaken and that it was Mrs. Roland, not defendant, who threw the heroin to the ground at the time of the arrest.
 The judgment is reversed.
 Gibson, C. J., Schauer, J., Peters, J., Tobriner, J., and Peek, J., concurred.
 McCOMB, J.
 I dissent.
 I would affirm the judgment. See the opinion prepared by Mr. Presiding Justice Wood for the District Court of Appeal in People v. Spriggs (Cal.App.) 33 Cal.Rptr. 732.
 Section 1870, subd. 4 reads: "In conformity with the preceding provisions, evidence may be given upon a trial of the following facts: ... 4 ... the act or declaration of a deceased person done or made against his interest in respect to his real property. ..."
 Section 1946, subd. 1 reads: "The entries and other writings of a decedent, made at or near the time of the transaction, and in a position to know the facts stated therein, may be read as prima facie evidence of the facts stated therein, in the following cases: 1. When the entry was made against the interest of the person making it. ..."
NOTES
[fn. 1]  1. Section 1853 reads: "The declaration, act, or omission of a decedent, having sufficient knowledge of the subject, against his pecuniary interest, is also admissible as evidence to that extent against his successor in interest."
[fn. 2]  2. The record does not disclose whether or not Mrs. Roland was available as a witness.
[fn. 3]  3. If Mrs. Roland had taken the witness stand, but refused to testify regarding possession of narcotics, invoking her constitutional right not to incriminate herself, she would not have been available as a witness.
[fn. 4]  4. The declaration would also be admissible in a prosecution against Mrs. Roland as an admission of a party opponoent. (Code Civ. Proc.,  1870, subd. 2; People v. Wilkins, 158 Cal. 530 [111 P. 612].)