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Nebraska Supreme Court Advance Sheets

307 Nebraska Reports

STATE v. GRAY

Cite as 307 Neb. 418

State of Nebraska, appellee, v. 

Neland T. Gray, Jr., appellant.

___ N.W.2d ___

Filed October 2, 2020. No. S-19-1173.

1. Sentences: Appeal and Error. A sentence imposed within the statutory 

limits will not be disturbed on appeal in the absence of an abuse of discretion by the trial court.

2. Judges: Words and Phrases. A judicial abuse of discretion exists 

only when the reasons or rulings of a trial judge are clearly untenable, 

unfairly depriving a litigant of a substantial right and denying a just 

result in matters submitted for disposition.

3. Appeal and Error. For an alleged error to be considered by an appellate 

court, an appellant must both assign and specifically argue the alleged 

error in the party’s initial brief.

4. ____. Where an appellant’s brief contains conclusory assertions unsupported by an analytical argument, the appellant fails to satisfy this 

requirement.

5. Sentences: Appeal and Error. When sentences imposed within statutory limits are alleged on appeal to be excessive, the appellate court 

must determine whether the sentencing court abused its discretion in 

considering well-established factors and any applicable legal principles.

6. 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.

7. ____. The sentencing court is not limited to any mathematically applied 

set of factors, but the appropriateness of the sentence is necessarily a 

subjective judgment that includes the sentencing judge’s observations 

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/

11/20/2020 08:08 AM CST
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307 Nebraska Reports

STATE v. GRAY

Cite as 307 Neb. 418

Appeal from the District Court for Lancaster County: Jodi 

L. Nelson, Judge. Affirmed.

Nancy K. Peterson for appellant.

Douglas J. Peterson, Attorney General, and Jordan Osborne 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

In an appeal from a second degree murder conviction, the 

appellant challenges the district court’s imposition of a life sentence to run consecutively with a sentence of 25 to 35 years’ 

imprisonment for use of a deadly weapon to commit a felony. 

According to the appellant, the district court abused its discretion by imposing an excessive sentence.

BACKGROUND

Pursuant to a plea agreement, Neland T. Gray, Jr., was convicted of second degree murder, in violation of Neb. Rev. Stat. 

§ 28-304 (Reissue 2016), a Class IB felony, and use of a deadly 

weapon to commit a felony, in violation of Neb. Rev. Stat. 

§ 28-1205(1)(a) and (b) (Reissue 2016), a Class II felony. The 

district court imposed on Gray a life sentence for the second 

degree murder conviction and a consecutive sentence of 25 to 

35 years’ imprisonment for the use of a deadly weapon to commit a felony conviction.

The convictions and sentences at issue arise out of 

events that occurred on December 31, 2018. Gray killed his 

ex-girlfriend, Dijah Ybarra, who was the mother of their two 

young children, by stabbing her at least 15 times. That evening, Ybarra took the children to Gray’s mother’s home, where 

Gray was living. Gray previously agreed to watch the children 

while Ybarra went out to celebrate New Year’s Eve. But when 

Ybarra arrived, Gray informed her that he had decided to go 
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STATE v. GRAY

Cite as 307 Neb. 418

out as well and had arranged for his aunt to watch the children 

instead. Gray rode with Ybarra to his aunt’s house where they 

dropped the children off. Ybarra then took Gray to another 

location where she had agreed to drop him off.

After arriving, Ybarra discussed with Gray that she was 

moving on and had been dating another man. This discussion 

upset Gray. Gray pulled out a kitchen knife that he had taken 

from his mother’s house and began stabbing Ybarra. Gray initially prevented Ybarra from exiting the car by grabbing her 

hair, but she was eventually able to get out and attempted to 

run away. Gray pursued Ybarra, continuing to stab her. Gray 

then left Ybarra bleeding and dying on the curb while he took 

her car and fled the scene. Gray called his mother and told her 

he was going to jail.

According to the information in the presentence investigation report, Gray had been physically and emotionally abusive 

to Ybarra throughout their relationship and had been in jail 

the previous year for assaulting her. During that prior altercation, Gray also assaulted another woman who had attempted to 

intervene on Ybarra’s behalf. Gray then threatened the intervening woman’s fiance with a knife when the fiance verbally 

confronted Gray.

While in jail after this incident and despite a protection order, 

Gray continued to contact Ybarra numerous times, threatening 

and verbally abusing her. Gray also assaulted other inmates 

while incarcerated.

Gray was released from jail in early December 2018. Gray 

and Ybarra resumed their sexual relationship upon his release. 

Gray had wanted to reestablish a relationship. However, Ybarra 

was apparently involved with both Gray and another man during this time, which Gray reported caused him severe feelings 

of jealousy. According to interviews with Gray’s family and 

friends contained within the presentence investigation report, 

a couple of days before the murder, Ybarra and her new boyfriend had taunted Gray about their new relationship. The 

family and friends asserted that Ybarra’s boyfriend sent Gray 
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STATE v. GRAY

Cite as 307 Neb. 418

pictures of himself with Gray’s children and Ybarra, claiming 

he was replacing Gray in Ybarra’s and his children’s lives.

At sentencing, Gray’s counsel requested that Gray’s sentence 

allow for a release date early enough to allow Gray to still 

become a productive member of society. Defense counsel also 

argued that Gray’s sentence should take into account Gray’s 

age of 22 years, remorse, history of psychological issues, substance abuse, and childhood exposure to domestic violence. 

The presentence investigation report sets forth that Gray was 

raised in an abusive household, struggled with his temper from 

a young age, consistently experienced domestic violence at 

home, and failed to learn any coping skills.

Gray had been suspended multiple times from school for 

fighting, eventually being expelled. Gray ultimately obtained 

his diploma through the GED program and held multiple jobs, 

but never for longer than 7 months at a time.

Gray has engaged in heavy alcohol and marijuana use since 

age 14, smoking marijuana six to eight times per day up until 

his incarceration in 2017. He also reported consuming a pint of 

hard liquor per day. Gray admitted that he was using alcohol 

heavily in the time following his release in December 2018 and 

that he had been drinking throughout the afternoon on the day 

of the murder.

Gray has a significant criminal history, both as a juvenile 

and as an adult. Gray abused Ybarra physically, verbally, and 

emotionally throughout their tumultuous relationship. Multiple 

family members and friends had told Gray to move on and 

leave Ybarra alone.

At the sentencing hearing, the district court stated that it had 

“carefully and thoughtfully considered [Gray’s early release] 

request, particularly in light of [Gray’s] age,” but reasoned that 

it was not appropriate in light of Gray’s history of violent criminal conduct, character, and flagrant violations of court orders. 

The district court observed that Gray had been “abusive, controlling, demeaning, possessive, and selfish” and had “shown a 

complete unwillingness to follow orders of the Court.”
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STATE v. GRAY

Cite as 307 Neb. 418

The court pointed out that Gray had contacted Ybarra multiple times while incarcerated in “flagrant violation[]” of the 

protection order in place. The court further recognized that 

Gray’s postrelease supervision order prohibited Gray from having any contact with Ybarra; using, possessing, or consuming 

alcoholic beverages or controlled substances; possessing any 

weapons; and engaging in unlawful acts or acts injurious to 

others, and yet, Gray “demonstrated no regard whatsoever for 

that order.”

The district court concluded that it was “impossible . . . to 

find that [Gray] at some time in the future will be amenable 

to the same type of supervision he was on at the time of this 

brutal murder” and that he is “a violent and dangerous man 

who has demonstrated an inability through incarceration or 

otherwise to co-exist with others without violence.”

ASSIGNMENT OF ERROR

Gray assigns that the district court abused its discretion in 

imposing an excessive sentence.

STANDARD OF REVIEW

[1,2] A sentence imposed within the statutory limits will not 

be disturbed on appeal in the absence of an abuse of discretion 

by the trial court. 1 A judicial abuse of discretion exists only 

when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and 

denying a just result in matters submitted for disposition. 2

ANALYSIS

[3-5] Gray alleges the life sentence for his second degree 

murder conviction was excessive. He does not specifically 

challenge the weapons conviction of 25 to 35 years’ imprisonment. For an alleged error to be considered by an appellate 

court, an appellant must both assign and specifically argue the 

1 State v. Smith, 240 Neb. 97, 480 N.W.2d 705 (1992).

2 State v. Weaver, 267 Neb. 826, 677 N.W.2d 502 (2004).
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STATE v. GRAY

Cite as 307 Neb. 418

alleged error in the party’s initial brief. 3 Where an appellant’s 

brief contains conclusory assertions unsupported by an analytical argument, the appellant fails to satisfy this requirement. 4

Gray’s conviction for second degree murder was punishable 

by a minimum of 20 years’ imprisonment and a maximum of 

life imprisonment. 5 When sentences imposed within statutory 

limits are alleged on appeal to be excessive, the appellate court 

must determine whether the sentencing court abused its discretion in considering well-established factors and any applicable 

legal principles. 6

[6,7] 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. 7 The sentencing court is not limited to any mathematically applied set of factors, but the appropriateness of the 

sentence is necessarily a subjective judgment that includes the 

sentencing judge’s observations of the defendant’s demeanor 

and attitude and all the facts and circumstances surrounding the 

defendant’s life. 8

Gray was 21 years old at the time of the murder and 22 

years old when he was sentenced. He argues that, in light of 

his age, a minimum sentence of life that would never allow 

for his parole eligibility is excessive. Gray relies on cases like 

State v. Iromuanya,

 9 where we have reduced life sentences 

3 See State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).

4 See id.

5 See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2018).

6 See State v. Lassek, 272 Neb. 523, 723 N.W.2d 320 (2006).

7 Id. See State v. Thieszen, 300 Neb. 112, 912 N.W.2d 696 (2018).

8 See State v. Lassek, supra note 6. See, also, State v. Thieszen, supra note 7.

9 State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
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STATE v. GRAY

Cite as 307 Neb. 418

based on the characteristics and history of the defendant. The 

defendant in Iromuanya was 23 years old when he committed 

second degree murder and had no significant criminal history. 

The defendant had fired a single shot, while at a party, which 

wounded one victim and killed another. We noted that by setting a minimum of life imprisonment, the court could not have 

imposed a more severe minimum term for second degree murder on a hardened criminal with a lengthy history of violent 

felony convictions. 10 We reiterated that a sentence should fit 

the offender and not merely the crime. 11

Both Gray’s criminal history and the nature of his killing 

of Ybarra differ significantly from Iromuanya. Although Gray 

pleaded to a lesser charge, premeditation is indicated by the 

fact that Gray took a kitchen knife from his mother’s house, 

had it on his person when he entered Ybarra’s car, and manipulated the situation so that Ybarra would end up alone with him, 

where he used the knife to stab Ybarra over 15 times while in 

the car and as she attempted to flee.

Gray has a long criminal history, including multiple convictions of violent conduct with others and with Ybarra specifically, including Gray’s being incarcerated for a year for 

assaulting Ybarra—his release being only weeks before this 

killing occurred. During that prior assault incident, Gray 

also assaulted another woman who attempted to intervene on 

Ybarra’s behalf and threatened the intervening woman’s fiance 

with a knife when he verbally confronted Gray.

As the district court noted, Gray has shown no interest or 

effort to abide by court orders. Despite a protection order 

in place while Gray was incarcerated, Gray still contacted 

Ybarra numerous times, threatening and verbally abusing her. 

Gray repeatedly violated the prohibitions of his postrelease 

supervision by possessing the kitchen knife from his mother’s 

10 Id.

11 Id.
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STATE v. GRAY

Cite as 307 Neb. 418

house, consuming alcohol, and having multiple contacts with 

Ybarra that evening that led to her death.

The district court recognized the appropriate factors when 

imposing Gray’s life sentence despite his relatively young age. 

Further, the sentence properly reflected the seriousness of the 

crimes committed and Gray’s past criminal conduct. As the 

district court observed, Gray is a “violent and dangerous man 

who has demonstrated an inability through incarceration or 

otherwise to co-exist with others without violence.”

A judicial abuse of discretion exists only when the reasons 

or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in 

matters submitted for disposition. 12 We find the district court 

did not abuse its discretion in imposing a life sentence in 

this matter.

CONCLUSION

The district court carefully considered all the relevant facts 

when it imposed the life sentence. Considering the totality of 

the circumstances, we cannot say that the sentence imposed 

by the district court was untenable. Gray’s assignment of error 

regarding the imposition of an excessive sentence is without 

merit. For the foregoing reasons, we affirm.

Affirmed.

12 State v. Weaver, supra note 2.