State of Nebraska, appellant.
Jason T. Gibson, appellee.
Sentences: Appeal and Error. Whether an
appellate court is reviewing a sentence for its leniency or
its excessiveness, a sentence imposed by a district court
that is within the statutorily prescribed limits will not be
disturbed on appeal unless there appears to be an abuse of
the trial court's discretion.
Sentences: Probation and Parole: Appeal and
Error. When the State appeals from a sentence,
contending that it is excessively lenient, an appellate court
reviews the record for an abuse of discretion, and a grant of
probation will not be disturbed unless there has been an
abuse of discretion by the sentencing court.
Sentences: Appeal and Error. There is not a
different standard of review for sentences when the State
appeals a sentence as excessively lenient or when a defendant
appeals a sentence as excessive; an appellate court reviews
for an abuse of discretion in either case.
Judgments: Appeal and Error. An abuse of
discretion occurs when a trial court's decision is based
upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and
Sentences: Appeal and Error. The trial
court's sentencing determination and an appellate
court's review of that determination for an abuse of
discretion are not formulaic or simply a matter of doctrine.
Sentences. The sentencing court is not
limited in its discretion to any mathematically applied set
. The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge's
observation of the defendant's demeanor and attitude and
all the facts and circumstances surrounding the
Neb. 834] 8. ___ . Evidence regarding a defendant's life,
character, and previous conduct, as well as prior
convictions, is highly relevant to the determination of a
Sentences: Appeal and Error. It is not the
function of an appellate court to conduct a de novo review of
the record to determine whether a sentence is appropriate.
Sentences. A sentence should fit the
offender and not merely the crime.
Petition for further review from the Court of Appeals,
Pirtle, Riedmann, and Bishop, Judges, on appeal thereto from
the District Court for Sarpy County, Stefanie A. Martinez,
Kleine, Deputy Sarpy County Attorney, for appellant.
L. Schense, of Law Office of Donald L. Schense, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik,
and Freudenberg, JJ.
defendant was convicted of attempted sexual assault of a
child in violation of Neb. Rev. Stat. § 28-319.01(1)(b)
(Reissue 2016). The presentence investigation report (PSI)
indicates that the defendant believed the child to be 18
years old. The defendant has no criminal record. The question
presented in this appeal is whether the district court abused
its discretion in sentencing the defendant to 5 years'
probation with 180 days of jail time as a condition of
probation. The State asserts that the sentence was
excessively lenient and involved inappropriate consideration
of an irrelevant factor. The Nebraska Court of Appeals, in a
split decision, agreed. We granted further review. We reverse
the Court of Appeals' decision and remand the matter with
directions to affirm the sentence of the district court.
Neb. 835] BACKGROUND
T. Gibson was initially charged with first degree sexual
assault of a child in violation of § 28-319.01(1)(b), a
Class IB felony which is punishable by 20 years' to life
imprisonment, with a mandatory minimum of 15 years'
imprisonment. In exchange for his plea of no contest, the
State amended the charge to attempted first degree sexual
assault of a child, in violation of § 28-319.01(1)(b)
and Neb. Rev. Stat. § 28-201 (Cum. Supp. 2018), a Class
II felony. A Class II felony is punishable by 1 to 50
years' imprisonment, but no mandatory minimum is
required. There was no agreement between the parties
regarding their recommendations to the court as to
violation of § 28-319.01(1)(b) occurs when an actor 25
years of age or older subjects another person who is at least
12 years of age but less than 16 years of age to sexual
penetration. As the factual basis for the crime, the State
described that another person, DeArch Stubblefield, was
prostituting out the victim, EX., who was 15 years old.
Between December 1, 2016, and January 31, 2017, Gibson picked
up E.L. and Stubblefield and drove them to his house, where
Gibson engaged in the sexual penetration of E.L. Money was
given to Stubblefield by Gibson after the sexual intercourse.
to the PSI, Stubblefield, who was 18 years old, attended the
same high school as E.L. He and E.L. were engaged in a sexual
relationship for approximately 6 months when Stubblefield
began seeking sexual encounters through
"Craigslist." Without consulting with E.L.,
Stubblefield decided to post on Craigslist that he and E.L.
were looking for someone to have a "threesome
with." Stubblefield eventually told E.L. that he had
arranged a sexual encounter for the two of them and asked her
to participate. E.L. agreed, not knowing exactly what was
going to happen.
began a series of three sexual encounters with three
different men, arranged by Stubblefield. During these
encounters, [302 Neb. 836]Stubblefield directed E.L.'s
actions and the men sexually penetrated E.L. Stubblefield
also participated in the sexual activities to varying
was one of the men who responded to Stubblefield's
Craigslist posting. Gibson picked up E.L. and Stubblefield
and drove them to his house, where the sexual penetration
occurred. Gibson described that he believed that both E.L.
and Stubblefield were 18 years old. According to Gibson and
Stubblefield, the Craigslist posting stated that E.L. and
Stubblefield were both 18 years old. Also, according to
Gibson, E.L. and Stubblefield told him that E.L. was 18 years
communication leading up to the day of the sexual contact was
between Gibson and Stubblefield. Gibson told Stubblefield
that he did not wish to engage in a threesome and was only
interested in the young woman. Stubblefield was in the room
during the sexual penetration of E.L. by Gibson. There were
conflicting reports as to Stubblefield's involvement
while in the room.
the sexual contact and before Gibson took E.L. and
Stubblefield home, Stubblefield asked Gibson for $40.
Stubblefield claimed he needed the money either to fix a tire
on his car or to buy gasoline. Gibson gave the money to
Stubblefield, who later split the money with E.L.
showed that Gibson has no criminal record. A search of his
electronic devices confiscated as part of the investigation
failed to reveal any involvement in activities similar to
those for which he was convicted, or any other crime. Gibson
admitted to law enforcement that he had previously engaged in
at least one other sexual encounter and had chatted with
people through other websites, but alleged that these
activities were between consenting adults and not for money.
has served for 16 years as a linguist in the U.S. Air Force
with consistently exemplary performance reviews and numerous
awards and decorations. Over 30 letters were [302 Neb. 837]
submitted to the district court attesting to Gibson's
good character and reputation. These letters described Gibson
as a person of integrity and character who consistently puts
others before himself. He was described as truthful, honest,
dedicated, honorable, hardworking, good natured, and mild
mannered. Clinical psychological evaluations concluded that
Gibson was not classified as a pedophile. He participated in
several psychological assessments that concluded Gibson was
at a low overall risk to reoffend.
indicated that Gibson was upfront and honest with law
enforcement from the beginning of the investigation. Gibson
immediately accepted responsibility for his actions. Further,
he expressed to the court that he was extremely remorseful
for what E.L. and her family must be going through.
State argued for a period of incarceration, while defense
counsel sought probation with no incarceration. Before
pronouncing its sentence, the district court noted the
severity of the crimes that had been committed against E.L.
The court said that it was a case that "is extremely
difficult for the Court, for the victim, for her family, and
for the community." The court continued:
There is no sentence that I'll be able to give to you
that will make [E.L.] whole again. I can hope that the system
does what it is designed to do, and in my reading of the
presentence investigation report, it indicates to me that
this . . . Stubblefield has, in large part, the majority of
the responsibility, from the materials I've received. And
my hope is that he - [E.L.] is given some sort of justice in
that sentence, most significantly.
to mitigating factors, the district court noted that Gibson
had demonstrated an appreciation for the seriousness of his
actions and had ...