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Nebraska Supreme Court Advance S

302 Nebraska Report

STATE v. GIBSON

Cite as 302 Neb. 833

State of Nebraska, appellant

v. Jason T. Gibson, appell

___ N.W.2d ___

Filed April 12, 2019. No. S-17-1272.

1. 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.

2. 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.

3. 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.

4. 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 evidence.

5. 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.

6. Sentences. The sentencing court is not limited in its discretion to any 

mathematically applied set of factors.

7. ____. 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 defendant’s life.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/17/2019 01:06 AM CDT
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8. ____. Evidence regarding a defendant’s life, character, and previous 

conduct, as well as prior convictions, is highly relevant to the determination of a proper sentence.

9. 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.

10. 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 

District Court for Sarpy County, Stefanie A. Martinez, Ju

Judgment of Court of Appeals reversed, and cause remanded 

with directions.

Phil Kleine, Deputy Sarpy County Attorney, for appellant.

Donald L. Schense, of Law Office of Donald L. Schense, 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg,

Freudenberg,

NATURE OF CASE

The 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.
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STATE v. GIBSON

Cite as 302 Neb. 833

BACKGROUND

Jason 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 sentencing.

A 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, E.L., 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.

According 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.

This began a series of three sexual encounters with three different men, arranged by Stubblefield. During these encounters, 
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Stubblefield directed E.L.’s actions and the men sexually penetrated E.L. Stubblefield also participated in the sexual activities to varying degrees.

Gibson 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 old.

All 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.

After 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.

The PSI 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.

Gibson 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 
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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.

The PSI 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.

The 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.

Turning to mitigating factors, the district court noted that 

Gibson had demonstrated an appreciation for the seriousness 

of his actions and had accepted responsibility for the crime 

he committed.

The court pronounced that Gibson would have to serve a 

term of incarceration at the county jail for 180 days and that 
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Cite as 302 Neb. 833

“[t]here will be a term of probation for five years to be served 

upon completion of that jail time.” The subsequent written 

order of probation included a condition that Gibson serve 

180 days in the Sarpy County jail, and an order of commitment followed. We agree with the Court of Appeals’ majority 

opinion that this written sentence imposed probation in lieu 

of incarceration and imposed 180 days’ jail time as a valid 

condition of probation under the authority conferred by Neb. 

Rev. Stat. § 29-2260 (Reissue 2016). It was not a sentence 

to incarceration below the minimum set forth in Neb. Rev. 

Stat. § 28-105 (Reissue 2016). Neither party challenges that 

the written order controls and sets forth a statutorily valid 

sentence. To the extent that the district court appeared to 

pronounce at the sentencing hearing a period of incarceration, 

as opposed to jail time as a condition of probation, we agree 

that the written order controlled over the invalid orally pronounced sentence.1

Besides 180 days in jail, the order of probation subjected 

Gibson to numerous other general and individualized conditions. Gibson was also subject to the Sex Offender Registration 

Act, Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2016).

The State appealed Gibson’s sentence under Neb. Rev. Stat. 

§ 29-2321 (Reissue 2016) as excessively lenient. The Court 

of Appeals, in a split decision, held that the court’s sentence 

was excessively lenient.2 The Court of Appeals reasoned that 

although the record demonstrated an unlikelihood that Gibson 

would reoffend, the district court’s decision to impose probation in lieu of incarceration under § 29-2260(2) depreciated the seriousness of the crime. Furthermore, the Court of 

Appeals found that the district court had based its sentencing 

1 Compare State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009), with State 

v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995).

2 State v. Gibson, 26 Neb. App. 559, 921 N.W.2d 161 (2018) (Bishop, 

Judge, dissenting).
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decision in part on the impermissible and irrelevant factors 

of Stubblefield’s culpability and probable sentence for his 

involvement in the crime.

We granted Gibson’s petition for further review.

ASSIGNMENTS OF ERROR

In his brief in support of further review, Gibson asserts 

that the Court of Appeals erred in (1) finding that the district 

court abused its discretion by imposing an excessively lenient 

sentence, (2) finding that the district court considered an irrelevant factor when imposing its sentence, and (3) vacating the 

district court’s sentence and remanding the cause to the district court with directions that a different district court judge 

impose a greater sentence.

STANDARD OF REVIEW

[1] 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.3

ANALYSIS

[2-4] When the State appeals from a sentence, contending 

that it is excessively lenient, this 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.4 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.5 Whether an appellate court is reviewing a sentence for 

3 State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018).

4 State v. Hoffman, 246 Neb. 265, 517 N.W.2d 618 (1994).

5 Id.
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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.6 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 evidence.7

In reviewing whether a sentencing court abused its discretion in imposing a sentence that was excessively lenient, we 

are guided by the factors set forth by Neb. Rev. Stat. § 29-2322 

(Reissue 2016), as well as by the statutory guidelines set out 

for the direction of the sentencing judge in imposing or withholding imprisonment.8

Section 29-2322 provides that in determining whether the 

sentence imposed is excessively lenient, an appellate court 

shall have regard for:

(1) The nature and circumstances of the offense;

(2) The history and characteristics of the defendant;

(3) The need for the sentence imposed:

(a) To afford adequate deterrence to criminal conduct;

(b) To protect the public from further crimes of the 

defendant;

(c) To reflect the seriousness of the offense, to promote 

respect for the law, and to provide just punishment for the 

offense; and

(d) To provide the defendant with needed educational 

or vocational training, medical care, or other correctional 

treatment in the most effective manner; and

(4) Any other matters appearing in the record which the 

appellate court deems pertinent.

6 State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (2008).

7 State v. Spang, ante p. 285, 923 N.W.2d 59 (2019).

8 See State v. Hoffman, supra note 4 (citing § 29-2260).
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STATE v. GIBSON

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Gibson was convicted of a Class II felony punishable by 1 

to 50 years’ imprisonment,9 but with no mandatory minimum. 

Section 29-2260(2) allowed the district court to impose a 

period of probation in lieu of incarceration upon its assessment 

of certain criteria set forth therein. Section 29-2260 provides 

in part:

(2) Whenever a court considers sentence for an offender 

convicted of either a misdemeanor or a felony for which 

mandatory or mandatory minimum imprisonment is not 

specifically required, the court may withhold sentence 

of imprisonment unless, having regard to the nature and 

circumstances of the crime and the history, character, and 

condition of the offender, the court finds that imprisonment of the offender is necessary for protection of the 

public because:

(a) The risk is substantial that during the period of 

probation the offender will engage in additional criminal 

conduct;

(b) The offender is in need of correctional treatment 

that can be provided most effectively by commitment to a 

correctional facility; or

(c) A lesser sentence will depreciate the seriousness of 

the offender’s crime or promote disrespect for law.

(3) The following grounds, while not controlling the 

discretion of the court, shall be accorded weight in favor 

of withholding sentence of imprisonment:

(a) The crime neither caused nor threatened serious 

harm;

(b) The offender did not contemplate that his or her 

crime would cause or threaten serious harm;

(c) The offender acted under strong provocation;

(d) Substantial grounds were present tending to excuse 

or justify the crime, though failing to establish a defense;

9 See § 28-105(1).
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(e) The victim of the crime induced or facilitated commission of the crime;

(f) The offender has compensated or will compensate 

the victim of his or her crime for the damage or injury the 

victim sustained;

(g) The offender has no history of prior delinquency 

or criminal activity and has led a law-abiding life for 

a substantial period of time before the commission of 

the crime;

(h) The crime was the result of circumstances unlikely 

to recur;

(i) The character and attitudes of the offender indicate 

that he or she is unlikely to commit another crime;

(j) The offender is likely to respond affirmatively to 

probationary treatment; and

(k) Imprisonment of the offender would entail excessive hardship to his or her dependents.

(4) When an offender who has been convicted of a 

crime is not sentenced to imprisonment, the court may 

sentence him or her to probation.

The Court of Appeals held that imprisonment of Gibson is 

necessary to reflect the seriousness of the offense, to promote 

respect for the law, and to provide just punishment for the 

offense. The Court of Appeals also held that the district court 

based its sentencing decision on the improper consideration of 

Stubblefield’s greater culpability. We agree with the majority 

opinion’s assessment of the severity of the crime committed 

against E.L. Nevertheless, in light of the evidence pertaining to the numerous other relevant factors under the district 

court’s consideration at sentencing, we cannot conclude that 

Gibson’s sentence was untenable, unreasonable, or clearly 

against justice or conscience, reason, and evidence. Further, 

we find that the district court did not impermissibly factor into 

its sentencing decision the relative culpability of Stubblefield 

and Gibson.
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[5-8] While certain guidelines are set forth by statute, neither 

the trial court’s sentencing determination nor our review of that 

determination for an abuse of discretion is formulaic or simply 

a matter of doctrine.10 The sentencing court is not limited in its 

discretion to any mathematically applied set of factors.11 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 defendant’s life.12 Evidence regarding 

a defendant’s life, character, and previous conduct, as well as 

prior convictions, is highly relevant to the determination of a 

proper sentence.13

[9] 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.14 The standard is not what sentence we would have 

imposed.15 If it were, we might reach a different result.

This was a very serious crime. The PSI contains little to 

indicate that E.L. shared Stubblefield’s enthusiasm for experimentation or wished for her body to be marketed and controlled by another. More to the point, a 15-year-old is not of 

a legal age to consent to such activities. A person of that age 

who is subjected to sexual penetration by an adult is a victim 

of sexual assault.

Whether or not Gibson was aware of it, E.L. was being 

trafficked by Stubblefield, who both arranged the contact with 

adult men and directed E.L.’s activities with those men. There 

is no justification for Gibson’s ignorance of this abuse. Gibson 

10 See State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007).

11 State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).

12 State v. Ralios, 301 Neb. 1027, 921 N.W.2d 362 (2019).

13 See id. See, also, e.g., State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004); 

State v. Strohl, 255 Neb. 918, 587 N.W.2d 675 (1999).

14 State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999).

15 State v. Thompson, supra note 10.
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arranged through Craigslist to have sex with a young woman 

who looked young enough to prompt him to seek assurances 

of her actual age. Gibson made all the arrangements for this 

sexual encounter with another stranger who advertised the 

young woman and alleged to speak for her. This should have 

alerted Gibson to the potential serious criminal implications of 

his continued participation.

[10] Still, the seriousness of the crime committed against 

E.L., which weighs in favor of imprisoning Gibson under statutory guidelines setting forth a minimum period of imprisonment of 1 year, does not, by itself, lead to the conclusion that 

the district court abused its discretion in sentencing Gibson to 

5 years’ probation in lieu of incarceration. The crime committed by Gibson was serious, and that fact should not be diminished. However, a sentence should fit the offender and not 

merely the crime.16

In other cases involving Class II felonies of first degree 

sexual assault and sexual assault of a child, a sentence of 5 

years’ probation with strict and demanding terms has been 

held not to be excessively lenient when the defendants were 

considered to be neither pedophiles nor sexual predators, had 

generally otherwise been law-abiding citizens, were remorseful, and were at a low risk to reoffend.17 This is in contrast to 

State v. Hoffman,

18 in which we found the sentence of 5 years’ 

probation for the defendant convicted of first degree sexual 

assault of a child was excessively lenient given the defendant’s lengthy history of other sexual assaults upon the victim, which included violence; two prior theft convictions; an 

evaluation that indicated the defendant was at risk of engaging 

in additional criminal conduct during a period of probation; 

16 State v. Harrison, supra note 14.

17 See, State v. Antoniak, 16 Neb. App. 445, 744 N.W.2d 508 (2008); State v. 

Thompson, supra note 10.

18 State v. Hoffman, supra note 4.
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and the fact that the defendant had expressed no remorse for 

his actions.

The PSI demonstrates that before this incident, Gibson led 

an exemplary life. He served in the U.S. Air Force with numerous awards and decorations. His family and friends attested 

to his good character. And the court was able to evaluate 

Gibson’s character during its observations of Gibson throughout the judicial process. Gibson has no criminal record, and 

his psychological assessment shows a low risk to reoffend. 

Though he was wrong and should have known better, there 

was no evidence that Gibson actually contemplated at the 

time of his actions that he was committing a crime or causing 

anyone harm. Gibson was upfront and cooperative with law 

enforcement from the beginning of the investigation and was 

by all accounts shocked when he learned E.L.’s real age. He 

expressed that he was ashamed and extremely remorseful for 

what E.L. and her family were going through as a result of 

his crime.

“While there is a temptation on a visceral level to conclude 

that anything less than incarceration depreciates the seriousness 

of crimes [involving sexual assault of a child], it is the function of the sentencing judge, in the first instance, to evaluate 

the crime and the offender.”19 As stated, evidence regarding a 

defendant’s life, character, and previous conduct, as well as 

prior convictions, is highly relevant to the determination of a 

proper sentence.20 The district court’s sentence was within the 

statutorily prescribed limits, and the district court did not abuse 

its discretion.

As for the conclusion by the majority opinion of the Court 

of Appeals that the district court based its decision on irrelevant considerations, we disagree that the district court’s 

19 State v. Thompson, supra note 10, 15 Neb. App. at 787-88, 735 N.W.2d 

at 835.

20 See cases cites supra note 13.
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comments regarding Stubblefield’s punishment improperly 

influenced its sentencing decision. The district court appeared 

to be merely commenting on the severity of all the crimes 

against E.L. The court noted that E.L. deserved justice not 

just for the crime committed by Gibson, but also for crimes 

committed against her by Stubblefield. While the court indicated its belief that Stubblefield had greater responsibility 

in the overall scheme of the exploitation of E.L., there is no 

indication that the court reduced Gibson’s punishment for his 

crime because Stubblefield might justly be punished more 

severely for his own crimes that played an important role in 

the abuse.

The sentence imposed by the district court was lenient, 

but we cannot conclude that the court abused its discretion 

by issuing a sentence that was excessively lenient. In light of 

all the relevant sentencing considerations, the sentence was 

not untenable, unreasonable, or clearly against justice or conscience, reason, and evidence.

CONCLUSION

For the foregoing reasons, we reverse the Court of Appeals’ 

decision and remand the matter with directions to affirm the 

sentence of the district court.

Reversed and remanded with direct