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State of Nebraska, appellee, v.

Courtney L. Anderson, appellant.

___ N.W.3d ___

Filed August 20, 2024. No. A-23-638.

1. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion 

by the trial court.

2. Sentences. When imposing a sentence, a sentencing judge should consider 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.

3. ____. 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.

4. Sentences: Appeal and Error. When a sentence imposed within the 

statutory limits is alleged on appeal to be excessive, the appellate court 

must determine whether the sentencing court abused its discretion in 

considering and applying the relevant factors as well as any applicable 

legal principles in determining the sentence imposed.

Appeal from the District Court for Lancaster County: Ryan 

S. Post, Judge. Affirmed.

Kristi J. Egger, Lancaster County Public Defender, and Todd 

C. Molvar for appellant.

Michael T. Hilgers, Attorney General, and Jordan Osborne 

for appellee.

Nebraska Supreme Court Online Library

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

08/20/2024 09:09 AM CDT
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Moore, Bishop, and Arterburn, Judges.

Bishop, Judge.

INTRODUCTION

Courtney L. Anderson pled no contest to one count of 

misdemeanor child abuse. The charge stemmed from an incident at a daycare where Anderson worked. In the course of 

cleaning tables in a classroom after the children had snacks, 

Anderson used a spray bottle three separate times to spray 

its contents in the direction of a minor child’s face. Anderson 

claimed the bottle contained only water. The daycare’s owner 

reported that it contained a mixture of water and dish soap. 

Anderson had no criminal history, other than a traffic violation 

for speeding. A week before sentencing, Anderson gave birth 

to a son by cesarean section and was on maternity leave from 

her employment at a fitness center. The Lancaster County 

District Court sentenced her to 240 days in jail; Anderson’s 

request for house arrest because her newborn was too young 

for daycare was denied. On appeal, Anderson claims that her 

sentence is excessive.

Although we conclude that a sentence of probation may 

have been more appropriate based on an examination of 

the relevant grounds listed in Neb. Rev. Stat. § 29-2260(3) 

(Reissue 2016), we cannot say that the district court abused its 

discretion by placing significant weight on Anderson’s failure 

to take responsibility for her actions, along with the nature of 

the offense. Further, although the Nebraska Legislature has 

provided for a presumption of probation for Class IV felonies 

absent substantial and compelling reasons why an offender 

could not effectively and safely be supervised in the community, see Neb. Rev. Stat. § 29-2204.02(2) (Reissue 2016), 

there is no such presumption for Class I misdemeanors. We 

therefore affirm Anderson’s conviction and sentence.

BACKGROUND

On May 17, 2023, the State filed an information alleging that on December 9, 2022, Anderson “knowingly and 
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intentionally” caused or permitted a minor child, J.W., to be 

(a) placed in a situation that endangered his physical health, (b) 

cruelly punished, or (c) deprived of necessary care. Anderson 

was charged with one count of child abuse, a Class IIIA felony, pursuant to Neb. Rev. Stat. § 28-707 (Cum. Supp. 2022). 

On June 16, 2023, the State filed an amended information, 

alleging that Anderson negligently caused or permitted J.W. 

to be placed in a situation that endangered his physical health. 

The amended information reduced the child abuse charge from 

a Class IIIA felony to a Class I misdemeanor, pursuant to the 

same statute. At a hearing that same day, Anderson, pursuant to a plea agreement, pled no contest to the charge in the 

amended information. The State provided the following factual 

basis for the plea:

[T]he owner of the . . . Child Development Center and 

Daycare . . . reported to the Lancaster County Sheriff’s 

Office that she had observed a suspected child abuse, 

which occurred on December 9th of 2022.

[The owner] stated that after that date she had received 

a call from . . . a parent of a child who attends the daycare, indicating that that child had witnessed a teacher 

spray another child with a spray bottle.

[The owner] reviewed the video surveillance and 

found that at 9:28 a.m., she observed the defendant, . . . 

Anderson, an employee at the daycare, place a child born 

in 2019, a minor child with the initials J.W. in a corner 

on a mat, which appeared to be for disciplinary purposes. 

[Anderson] then obtained a spray bottle which contained 

a soap and water cleaning solution and sprayed the child, 

J.W. in the face. [Anderson] cleaned a table with the 

solution and then returned to spray J.W. in the face again. 

[Anderson] cleaned an additional table with the spray 

bottle solution before returning a third time to spray J.W. 

in the face again.

J.W. turned his head and placed his hand in front of 

his face as a result of the soapy solution being sprayed 
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in his face. He had red watery burning eyes as a result 

of being sprayed in the face. His mother expressed that 

J.W.’s eyes were bothering him the night of the incident 

as well.

[Anderson] was contacted and stated that she had been 

spraying a toy barn in the daycare that was near J.W. 

And she stated the barn made a noise when the bottle 

was sprayed.

This was inconsistent with the officer’s view of the 

video surveillance from it.

Those events did occur in Lancaster County, Nebraska.

The district court accepted Anderson’s plea of no contest to 

the charge in the amended information and found her guilty of 

the same. The case was set for sentencing.

The sentencing hearing took place on August 16, 2023; we 

will set forth the arguments and comments made at that hearing below. The district court sentenced Anderson to 240 days 

in jail, with 2 days’ credit for time served.

Anderson appeals.

ASSIGNMENT OF ERROR

Anderson assigns that the sentence imposed by the district 

court was excessive and constitutes an abuse of discretion.

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. Lierman, 305 Neb. 289, 940 N.W.2d 

529 (2020).

ANALYSIS

State’s Motion for Summary Disposition

After Anderson filed her brief on appeal, the State filed a 

motion requesting that this court summarily affirm Anderson’s 

conviction and sentence pursuant to Neb. Ct. R. App. P. 

§ 2-107(B)(2) (rev. 2022) (questions presented for review 

are so unsubstantial as not to require argument). This is a 
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common practice by the State in criminal appeals when the 

only error assigned on appeal is that the sentencing court 

abused its discretion by imposing an excessive sentence. 

And it is often the case that this court will summarily affirm 

the judgment of the trial court given the limitations of an 

abuse of discretion standard of review, as established by the 

Nebraska Supreme Court. See State v. Morton, 310 Neb. 355, 

966 N.W.2d 57 (2021) (Cassel, J., concurring) (rare exception 

that sentence within statutory limits is excessive). The State’s 

request in this instance was declined.

Anderson’s Conviction and Sentence

Anderson was convicted of one count of misdemeanor child 

abuse. There was no allegation of serious bodily injury. Section 

28-707 states, in relevant part:

(1) A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a 

minor child to be:

(a) Placed in a situation that endangers his or her life 

or physical or mental health;

. . . .

(3) Child abuse is a Class I misdemeanor if the offense 

is committed negligently and does not result in serious 

bodily injury as defined in section 28-109 [bodily injury 

which involves substantial risk of death or serious permanent disfigurement or protracted loss or impairment of 

function of any part or organ of body] or death.

(4) Child abuse is a Class IIIA felony if the offense 

is committed knowingly and intentionally and does not 

result in serious bodily injury as defined in section 28-109 

or death.

As indicated previously, the amended information alleged that 

Anderson negligently caused or permitted J.W. to be placed 

in a situation that endangered his physical health, making the 

offense a Class I misdemeanor. A Class I misdemeanor is punishable by up to 1 year of imprisonment to be served in the 
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county jail, a $1,000 fine, or both. See Neb. Rev. Stat. § 28-106 

(Reissue 2016). The district court sentenced Anderson to 240 

days in jail. Anderson claims that the sentence imposed by the 

court was excessive and constitutes an abuse of discretion. 

Since the sentence was within the statutory range for a Class I 

misdemeanor, we review the court’s sentencing determination 

only for an abuse of discretion.

Sentencing Considerations

[2,3] When imposing a sentence, a sentencing judge should 

consider 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. State v. Lierman, supra. 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. Id.

Anderson was 30 years old at the time of sentencing. 

According to the presentence report (PSR) submitted on 

August 9, 2023, Anderson was single but was living with her 

partner of 10 years and their 6-year-old child. At the time of 

the report, Anderson was pregnant with their second child. 

Anderson obtained an associate degree in early childhood 

education in 2015. She had been working at a fitness center 

since January 2023; her employer at the fitness center indicated that Anderson was reliable, hardworking, and responsible. Anderson previously worked at the daycare (where this 

offense occurred) for 7 months but was fired because of the 

reported incident. Prior to that, Anderson worked at a different 

daycare for many years; what appears to be a reference letter 

from that previous employer dated just prior to the spray bottle 

incident indicates that Anderson was “reliable and punctual,” 

“worked hard,” was “flexible and willing to help,” and had a 

“caring personality.”
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Other than the current offense, Anderson’s criminal history 

includes only one speeding violation, which occurred in 2016 

and resulted in a $25 fine.

The law enforcement reports contained in the PSR provide 

additional information related to the current offense. They 

indicate that J.W.’s mother also worked at the same daycare 

as Anderson. Both the daycare owner and J.W.’s mother were 

reviewing the video of the incident when law enforcement 

arrived to investigate. J.W.’s mother was asked if she “wished” 

for J.W. “to be the victim of child abuse” and she stated that 

she did. The mother indicated that J.W.’s eyes “were red, 

watery, and burned from the solution being sprayed in them 

the evening after the incident.” J.W.’s mother was asked to 

provide a picture of J.W.’s eyes the next day. (We note that 

the picture included in the PSR does not reveal any redness or 

irritation in or around J.W.’s eyes.) A couple days later, contact 

was made with the daycare owner to collect the spray bottle 

used during the incident. The bottle was filled “approximately 

3/4’s the way full with a clear fluid” that the daycare owner 

described as “Dawn Dish Soap and water.”

The law enforcement reports indicate that Anderson denied 

intentionally spraying the child in the face. However, she 

acknowledged there was a possibility he may have been 

sprayed when she was attempting to make the children laugh 

by spraying the bottle near a toy barn that made noise when 

sprayed. Her statement in the PSR indicates that the toy barn 

had been making noises because “‘its batteries were dying’” 

and that when she walked past it, the children thought she was 

“‘magically setting it off.’” After redirecting J.W., she was 

cleaning a table when a child suggested she spray water by it 

to see if it would set it off, and it did, so she was asked to do 

it a couple more times. During her PSR interview, she reported 

that the bottle contained only water and that she “‘wasn’t 

cautious of [her] surroundings.’” She stated, “‘It was a huge 

misunderstanding that turned very serious.’”
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Our review of the daycare video, which has no audio, 

reveals the following. At about 9:24 a.m., Anderson is sitting 

at her desk while the children are having snacks at tables. J.W. 

is interacting with another child, and he can be seen sucking his thumb and loitering around the coat lockers near his 

table. Anderson heads toward J.W., and he immediately sits 

back in his chair. It appears the children are then directed to 

stop what they are doing and head toward a large colorful 

floor mat. J.W. goes to the mat area and is seen playing with 

a toy on top of a counter next to the mat. At 9:28:09 a.m., 

Anderson takes J.W.’s arm and sits him down in the corner on 

the mat. J.W. immediately appears to start crying (throws his 

head back with his mouth open); one child and then another 

child start covering their ears. This is before Anderson sprays 

anything in J.W.’s direction. At 9:28:27 a.m., Anderson walks 

across the mat and sprays the bottle from a couple feet away 

toward J.W. as she walks toward the tables. J.W. puts his 

head down in reaction and briefly puts his right fist near his 

right eye. Anderson sprays a table, then returns to the edge 

of the mat where another child is sitting at 9:28:39 a.m. and 

reaches forward to spray J.W. again from a couple feet away; 

he turns away. There is no wiping motion by J.W. after this 

spray. Anderson goes to spray another table, then walks across 

the mat and sprays J.W. again at 9:28:52 a.m. from about a 

foot away. J.W. briefly puts his head down and then sucks his 

thumb; no wiping of the face is seen.

The probation officer conducted a “Level of Service/Case 

Management Inventory.” With a “score of six” on the inventory, Anderson was assessed as an overall low risk to reoffend. She scored as a medium risk in the criminogenic risk 

factor domains for leisure/recreation and procriminal attitude; 

a low risk in the domains for family/marital and antisocial patterns; and a very low risk in the domains for criminal history, education/employment, companions, and alcohol/

drug problems.

The probation officer stated:
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Anderson described the present offense as a misunderstanding and the video that depicts the present offense 

looks worse than it was. She stated at the time of the present offense, she was spraying at a toy that the children 

were being entertained with and she was not cautious 

of her surroundings. She stated she had no ill intentions 

during the time; however, . . . Anderson did appear to be 

remorseful.

Included in the PSR were seven letters in support of 

Anderson. Among the letters was one from a parent of a 

child at the daycare when the current offense occurred; the 

parent wrote that he had “been incredibly impressed with 

[Anderson’s] level of professionalism, her dedication to her 

job, and exceptional caregiving skills.” Anderson’s former 

employer at a different daycare wrote that Anderson’s “caring personality and demonstrated common sense make her a 

great choice for working with your children.” Three letters 

were written by Anderson’s former coworkers: one wrote that 

Anderson “was always patient, compassionate, and nurturing 

with the children under her care, and she worked tirelessly to 

create a safe and welcoming environment for them to learn 

and grow”; another wrote that Anderson “was very patient and 

attentive with the children she cared for” and that Anderson 

had “been an outspoken advocate in the past when children 

were being mistreated.”

Also included in the PSR was a letter written by the owner 

of the daycare where Anderson’s current offense occurred. The 

owner wrote:

[Anderson] has a habit of never taking responsibility for 

her actions and will get very confrontational and argumentative when provided with suggestions on how to better do her job. We had notified [Anderson] on Monday, 

December 5th that she would be removed as the Lead 

Preschool Teacher at the end of that week due to her 

failure to properly follow her job description and teach 
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the children in her care. The incident that she is being 

sentenced for occurred on Friday, December 9th.

. . . .

In conclusion, I want to express my disappointment 

that [Anderson] was allowed to plea this charge down 

from a felony. . . . The Lancaster County Sheriff’s 

Deputy that responded to [the daycare] initially stated 

that he would be ticketing [Anderson] for a misdemeanor. 

After leaving [the] facility, he notified me that he reread 

the statutes, and determined that her actions constituted 

a felony charge. As a result of her arrest . . . numerous 

news stations picked up the story and began harassing 

my employees and daycare families. . . . My staff were 

scared to leave the building for their breaks. We kept 

children locked up inside the building for fear of who 

was lurking in our parking lot. It was a very stressful and 

scary time for all of us. . . . It upsets me that my business has been viewed as the “bad guy” in all of this mess. 

No one will remember . . . Anderson’s name in a few 

months, but they will remember that [the daycare] had 

an employee that abused children. Now that employee is 

being allowed to walk away with just a slap on the wrist. 

There are days that I regret turning her into authorities 

because my business is the one that had to suffer with the 

consequences of [Anderson’s] actions.

Sentencing Hearing

At the sentencing hearing, the State said that when determining the sentence, the district court should take into consideration that Anderson “still does not accept any responsibility 

for this offense” and “is still sticking to this story that this toy 

barn was making this noise and making the children laugh.” 

The State argued that the video “tells a very different story 

than what . . . Anderson is portraying.”

Anderson’s counsel noted that Anderson had only one 

prior speeding ticket on her criminal history, “[t]hat’s it,” and 
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“[s]he’s not a risk to reoffend.” Counsel stated that Anderson 

goes to weekly counseling. Additionally, she “just recently 

gave birth to a new child . . . within the past week.” Counsel 

said that Anderson was asking for a term of probation, and 

counsel saw no reason why Anderson could not successfully 

complete probation. Counsel stated that if the district court 

was considering a jail sentence, then it should also consider 

Anderson’s current family situation and allow her to apply 

for house arrest and defer any jail sentence imposed. Counsel 

noted that Anderson’s newborn “isn’t eligible for childcare” 

due to the child’s age.

The district court asked Anderson if she had anything to say 

before sentence was imposed. Anderson initially replied, “I 

think I’ve said everything that I have to say, Your Honor.” She 

subsequently also informed the court about her recent cesarean section and that she was in counseling “to better [herself] 

as a person.” She noted that she was nursing her newborn and 

that he could not be placed in daycare for 6 weeks because 

“childcare doesn’t take anybody under six weeks.”

The district court stated that it had read and reviewed the 

PSR, and had considered the comments of Anderson’s counsel, 

the character letters, and the relevant statutory factors. As to 

the current offense, the court said:

I certainly understand a lapse in judgment. And I also 

understand being frustrated with young children. But, the 

— we got more than problem [sic] going on here. You’ve 

taken no responsibility for what happened. I watched the 

video, I think, five times. I watched it two or three times, 

and then I read your information, your letter, and then I 

watched it again at least twice to see if it was consistent 

with your story. And it’s just not.

It — it’s kind of astounding to me that someone with 

your history, which is — which has a good history, is 

doubling down on this. And you sprayed the child in 

the face three times. Nothing — it’s just — it’s very 
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frustrating to me that we’re in this situation. It should not 

have happened.

And you violated the trust of the child in your care, the 

parents of the child. I can’t even imagine how confused 

the other children were, the way they were lined up and 

they could see the incident.

Thankfully, one of the other children said something to 

their parents and that, you know, thankfully, the preschool 

owner acted right away and reported it. . . .

It’s a lapse in judgment, but it’s completely unacceptable.

The court stated that “at the end of the day, it is a very serious 

offense.” It then sentenced Anderson as previously set forth.

Arguments on Appeal

[4] In her brief on appeal, Anderson claims the district court 

abused its discretion by imposing an excessive sentence, and 

she submits that probation or a lesser term of imprisonment 

would have been a fair and just sentence. She directs us to 

Neb. Rev. Stat. § 29-2308(1) (Reissue 2016), which states, 

in part:

In all criminal cases that now are or may hereafter be 

pending in the Court of Appeals or Supreme Court, the 

appellate court may reduce the sentence rendered by 

the district court against the accused when in its opinion the sentence is excessive, and it shall be the duty 

of the appellate court to render such sentence against 

the accused as in its opinion may be warranted by the 

evidence.

The Nebraska Supreme Court has construed this statutory 

language to mean that an appellate court “‘may’ reduce the 

sentence rendered by the district court ‘when in its opinion 

the sentence is excessive.’” State v. Morton, 310 Neb. 355, 

365, 966 N.W.2d 57, 66 (2021). However, when a sentence 

is imposed within the statutory limits, “the appellate court 

must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well 

as any applicable legal principles in determining the sentence 
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to be imposed.” Id. at 365-66, 966 N.W.2d at 66. In State 

v. Morton, supra, this court reduced one of the defendant’s 

sentences, finding that the trial court abused its discretion as 

to that sentence; however, on petition for further review, the 

Supreme Court reversed our decision. As pointed out by the 

concurrence in Morton, the Supreme Court “has left the door 

ajar—however slightly. It has not foreclosed any sentence 

within statutory limits from being excessive, but it strongly 

[has] suggest[ed] it is a rare exception.” 310 Neb. at 375, 

966 N.W.2d at 71 (Cassel, J., concurring) (internal quotation 

marks omitted).

Citing to § 29-2260(2), Anderson further argues that “[i]f 

mandatory imprisonment is not specifically required, the court 

may withhold a sentence of imprisonment, unless the court 

finds imprisonment is necessary for [the] protection of the 

public.” Brief for appellant at 11. Section 29-2260(2) provides:

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.

Section 29-2260(3) goes on to list various “grounds,” 

which “while not controlling the discretion of the court, shall 

be accorded weight in favor of withholding [a] sentence of 
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imprisonment” by a sentencing court. The grounds listed in 

§ 29-2260(3) that are most relevant here include:

(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;

. . . .

(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.

Anderson argues that the district court “failed to properly 

consider [her] mentality, the fact that the sentence imposed 

would entail excessive hardship to [her] dependents, [her] 

record of law-abiding conduct, and the possibility of rehabilitation.” Brief for appellant at 9. She notes that she had worked 

in childcare since 2010 and that “[i]n that time, her coworkers 

and parents of the children she cared for trusted and respected 

[her,] as demonstrated by the seven character letters in her 

[PSR].” Id. at 13.

In considering the relevant sentencing factors, the district 

court specifically mentioned Anderson’s mentality and record 

of law-abiding conduct, and it stated that it understood what 

was currently going on in her life, including the fact that she 

had just had a baby. However, the court was troubled that 

Anderson had taken “no responsibility for what happened.” 

The court watched the video multiple times “to see if it was 

consistent with [Anderson’s] story,” and it was “just not.” 
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While noting Anderson’s “good history,” the court was concerned that Anderson was “doubling down on this.” It pointed 

out that Anderson “sprayed the child in the face three times,” 

and the court stated that “it’s very frustrating to [the court] 

that we’re in this situation. It should not have happened.”

When applying the grounds listed under § 29-2260(3) as set 

forth above to Anderson, many of the considerations weighed 

in favor of withholding imprisonment. Anderson did not contemplate that her action would cause or threaten serious harm, 

nor did it do so; Anderson has no prior criminal history, other 

than a traffic violation, and she has led a law-abiding life; 

Anderson would likely respond affirmatively to probationary 

treatment; and imprisonment would cause excessive hardship 

to her children, although the children’s father would be available to them. Additionally, imprisonment of Anderson was not 

necessary for the protection of the public. See § 29-2260(2). 

Based upon these statutory factors, a sentence of probation 

could have been appropriate.

However, it appears that the district court was very troubled 

by Anderson’s failure to take responsibility for her actions, as 

well as the nature of the offense. Anderson’s unwillingness 

to acknowledge her actions go to her character and attitude 

and may be perceived as an indicator for future poor judgment, even if these particular circumstances are unlikely to 

recur. We agree with the court that the daycare video does 

not support Anderson’s version of the incident. It may have 

benefited Anderson to simply acknowledge a lapse in judgment. No serious harm was done to J.W.; however, spraying a 

mixture of water and dish soap in the direction of his face was 

wrong. While imprisonment of Anderson may not have been 

necessary for the protection of the public, the district court 

considered this a “very serious offense.” It pointed out that 

Anderson brought “a lot of scrutiny” onto the daycare due to 

“everything” she did, and “nothing they did.”

Although we cannot say that the district court abused 

its discretion, this court would have preferred to see a 
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sentence of probation in view of most of the relevant grounds 

under § 29-2260(3) favoring the withholding of incarceration. However, like the district court, we are troubled by 

Anderson’s unwillingness to simply accept responsibility for 

her wrongful behavior. Whether Anderson’s unwillingness to 

be truthful about the spray bottle incident should override the 

§ 29-2260(3) factors that weighed against incarceration is a 

discretionary determination best left to the sentencing court. 

See State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020) 

(appropriateness of sentence is necessarily subjective judgment and includes sentencing judge’s observation of defendant’s demeanor and attitude). Therefore, although this court 

views the record and applicable law to favor probation, we 

cannot say the district court abused its discretion by ordering 

240 days of jail time.

No Presumption of Probation

For the sake of completeness, we note that there is a presumption of probation for Class IV felonies, see § 29-2204.02(2), 

but there is no such presumption for Class I misdemeanors. 

Under § 29-2204.02(2), the sentencing court shall impose a 

sentence of probation for a Class IV felony unless there are 

substantial and compelling reasons that community supervision will not be an effective and safe sentence. See State v. 

Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017). In the present 

case, if the presumption of probation was applicable for this 

Class I misdemeanor like it is for a Class IV felony, the record 

would not likely have demonstrated substantial and compelling reasons to overcome the presumption of probation. It is 

curious that the Legislature has chosen to give a presumption 

of probation for more serious felony offenses, but not for 

lesser misdemeanor offenses.

CONCLUSION

For the reasons set forth above, we affirm Anderson’s conviction and sentence.

Affirmed.