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305 Nebraska Reports

STATE v. VALENTINO

Cite as 305 Neb. 96

State of Nebraska, appellee, v. 

Vincent Valentino, appellant.

___ N.W.2d ___

Filed February 21, 2020. No. S-19-270.

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal 

case from the county court, the district court acts as an intermediate 

court of appeals, and its review is limited to an examination of the 

record for error or abuse of discretion.

2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error 

appearing on the record.

3. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

4. Appeal and Error. An appellate court independently reviews questions 

of law in appeals from the county court.

5. Criminal Law: Courts: Appeal and Error. When deciding appeals 

from criminal convictions in county court, an appellate court applies the 

same standards of review that it applies to decide appeals from criminal 

convictions in district court.

6. Motions to Dismiss: Prosecuting Attorneys: Discrimination: 

Evidence. On a defendant’s motion to dismiss based on discriminatory 

or selective prosecution, the State is entitled to have all its relevant evidence accepted or treated as true, every controverted fact as favorably 

resolved for the State, and every beneficial inference reasonably deducible from the evidence.

7. Prosecuting Attorneys: Discrimination. The State’s decision to deny 

an arrestee admission into a pretrial diversion program is a decision to 

prosecute and may be attacked by a claim of selective prosecution.

8. Constitutional Law: Prosecuting Attorneys: Discrimination. The 

general rule regarding prosecutorial discretion in law enforcement is that 

Nebraska Supreme Court Online Library

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

05/15/2020 08:09 AM CDT
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STATE v. VALENTINO

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unless there is proof that a particular prosecution was motivated by an 

unjustifiable standard based, for example, on race, religion, nationality, 

sex, or political affiliation, the use of such discretion does not violate 

constitutional protections.

9. Prosecuting Attorneys: Discrimination: Proof. To establish a selective 

prosecution claim, a defendant must demonstrate that the prosecution 

had a discriminatory effect and that it was motivated by a discriminatory purpose.

10. Constitutional Law: Prosecuting Attorneys: Discrimination: Proof.

A defendant claiming selective prosecution based on gender must establish (1) that similarly situated individuals of a different gender were not 

prosecuted and (2) that the decision to prosecute was invidious or in bad 

faith, based upon impermissible considerations or the desire to prevent 

the defendant’s exercise of his or her constitutional rights.

11. Prosecuting Attorneys: Discrimination: Dismissal and Nonsuit. In a 

selective prosecution claim, the trial court has the remedy of dismissing 

the charge against the defendant if intentional and purposeful discriminatory enforcement is shown.

Appeal from the District Court for Lancaster County, Jodi 

L. Nelson, Judge, on appeal thereto from the County Court 

for Lancaster County, Laurie J. Yardley, Judge. Judgment of 

District Court affirmed.

Robert B. Creager, of Anderson, Creager & Wittstruck, P.C., 

L.L.O., for appellant.

Douglas J. Peterson, Attorney General, and Melissa R. 

Vincent for appellee.

Vincent Valentino, pro se.

Miller-Lerman, Cassel, Stacy, Funke, Papik, and 

Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Following an arrest for solicitation of prostitution under 

Neb. Rev. Stat. § 28-801.01 (Reissue 2016), Vincent Valentino 

unsuccessfully applied to participate in the Lancaster County 

pretrial diversion program. An administrative review hearing 
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STATE v. VALENTINO

Cite as 305 Neb. 96

was held, and the hearing officer concluded that because the 

offense was not listed as an eligible offense, no error had 

occurred. Valentino moved to suppress evidence and statements 

and served subpoenas duces tecum alleging that he had been 

selectively prosecuted based on his gender. Valentino claimed 

that the sting operation in which he was arrested was conducted pursuant to the National Johns Suppression Initiative 

(NJSI) and that it impermissibly targeted men for prosecution. 

The county court for Lancaster County quashed the subpoenas and denied his motions to suppress and to dismiss. The 

county court ultimately convicted Valentino of the offense. 

Valentino appealed to the Lancaster County District Court, 

which affirmed the judgment of the county court. Valentino 

appealed, claiming he was selectively prosecuted and excluded 

from the pretrial diversion program because of his gender. 

We affirm.

STATEMENT OF FACTS

In 2015, the Lincoln Police Department (LPD) began participating in the NJSI in partnership with the Cook County, 

Illinois, Sheriff’s Department. Press releases from the Cook 

County sheriff stated that the NJSI “highlight[s] the role of 

sex buyers — or ‘johns’ — as perpetrators in this violent and 

exploitive industry” and had resulted in the arrests of more 

than 5,800 people across 22 states. Following a sting operation, 

the LPD arrested six men, including Valentino, for soliciting 

prostitution; four women for prostitution; and several other 

individuals for other crimes.

The State charged Valentino with one count of solicitation of 

prostitution in violation of § 28-801.01, a Class I misdemeanor. 

Valentino applied to participate in a pretrial diversion program 

run by the Lancaster County Attorney’s office. His application 

was denied, and Valentino sought administrative review.

Administrative Review.

An administrative review hearing was held regarding pretrial 

diversion on November 17, 2016. The two issues up for review 
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STATE v. VALENTINO

Cite as 305 Neb. 96

were: (1) whether the offense of solicitation of prostitution 

in violation of § 28-801.01 is an eligible offense under the 

“Lancaster County Adult Diversion Program Eligibility Criteria 

and Program Conditions” (the Diversion Guidelines) and, (2) 

if so, whether Valentino was otherwise eligible to participate 

in pretrial diversion. A local attorney was appointed as the 

hearing officer to review the county attorney’s decision. The 

hearing officer issued an opinion in which he concluded that 

under the Diversion Guidelines, the crime of solicitation was 

not enumerated as eligible, ineligible, or eligible on a case-bycase basis for pretrial diversion, and that therefore, the decision 

to deny pretrial diversion was not arbitrary and capricious. The 

opinion concluded that Valentino’s charge was ineligible and 

that it was unnecessary to address eligibility further.

Motion to Suppress for Selective Prosecution 

and Subpoenas Duces Tecum.

Valentino served a subpoena duces tecum on a deputy 

county attorney and Ben Miller, a sergeant with the LPD. The 

subpoenas requested documents regarding Valentino’s request 

for the pretrial diversion program. The State moved to quash 

the subpoenas for various reasons, including that the requests 

were unduly burdensome and required the witnesses to produce documents which were not relevant to Valentino’s guilt or 

innocence and were not in its custody.

Valentino moved to suppress, alleging, inter alia, that he 

had been unconstitutionally and selectively prosecuted based 

upon his gender. In support of his claim, Valentino alleged 

that LPD’s sting operation impermissibly targeted men for 

prosecution.

At a hearing on the State’s motions to quash and Valentino’s 

motion to suppress based on selective prosecution, the county 

court allowed Valentino to question both the deputy county 

attorney and Sergeant Miller but ultimately granted the motions 

to quash.

Sergeant Miller testified that the purpose of the NJSI is 

to “focus on people typically referred to as Johns, who are 
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Cite as 305 Neb. 96

looking to purchase women for sale for sexual purposes.” He 

testified that he had never encountered a female soliciting a 

prostitute and that he had never arrested a woman for solicitation of prostitution. He testified that advertisements created by 

the LPD do not invite gender-specific responses and that the 

LPD cannot control the gender of who responds to its advertisements. Sergeant Miller testified that in addition to stings 

aimed at buyers, the LPD also conducts prostitution stings in 

which prostitutes, including women, are arrested and referred 

for prosecution.

The deputy county attorney testified that he was unaware 

whether a female had been prosecuted for solicitation but 

stated that “[i]f [the police] arrest a female for it, we’d prosecute the female.” He stated that he was unaware of a case 

where a person was denied pretrial diversion based upon their 

gender.

The court found that based on the evidence, Valentino did 

not show he was selectively arrested and prosecuted. With 

regard to Valentino’s claims that he was entitled to pretrial 

diversion, the court concluded that the offense of solicitation 

of prostitution was not an eligible offense for pretrial diversion 

under the Diversion Guidelines.

Valentino subsequently appealed the county court’s decision 

denying his motion to suppress; however, his appeal was dismissed for lack of jurisdiction—first by the district court and 

then by the Nebraska Court of Appeals. Valentino then filed 

a petition for further review, which we denied on March 27, 

2018, in case No. A-17-1305.

County Court Trial.

After a stipulated bench trial held on August 29, 2018, the 

county court found Valentino guilty. It ordered him to pay a 

fine of $500. Valentino appealed to the district court. Valentino 

filed a statement of errors, claiming, inter alia, that the county 

court erroneously denied his various claims and motions 

relating to gender-based discrimination, including those connected to pretrial diversion, evidence, and “[Valentino’s] 
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motion to dismiss for selective investigation/prosecution 

based upon gender.”

District Court Appeal.

On appeal to the district court, Valentino claimed that the 

Lancaster County Attorney and the LPD selectively arrested 

and prosecuted him based on his gender and that the Lancaster 

County Attorney did not let him participate in pretrial diversion due to his gender. Following a hearing, the district court 

found that law enforcement did not exercise its discretion in 

a discriminatory manner and affirmed the judgment of the 

county court. In reaching its conclusion, the district court 

reasoned that Valentino had not presented evidence that a 

similarly situated person was not prosecuted, nor had he presented evidence of clear and intentional discrimination. The 

district court assumed without deciding that the decision of the 

county attorney regarding pretrial diversion was reviewable 

and concluded that Valentino had not shown that the county 

attorney wrongly deprived him of an opportunity for administrative review or written reasons for denial of admission to 

the pretrial diversion program. The district court agreed with 

the hearing officer that the record showed that the application 

for pretrial diversion was denied because “solicitation, like 

prostitution, was not an eligible offense” and not because of 

Valentino’s gender.

Valentino appeals.

ASSIGNMENTS OF ERROR

Valentino claims, restated and consolidated, that the district court sitting as an appellate court erred when it failed to 

reverse various orders of the county court and affirmed his 

conviction. With respect to the pretrial diversion, Valentino 

claims that the county attorney improperly failed to give reasons for denying him participation in the pretrial diversion 

program and that the denial was motivated by selective prosecution. With respect to the trial in county court, Valentino 

claims that the county court erred when it denied his motion 
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to suppress, granted the State’s motions to quash subpoenas, 

and rejected his claims that the prosecution was motivated by 

selective prosecution. The rejection of these claims form the 

basis of Valentino’s appeal.

STANDARDS OF REVIEW

[1-5] In an appeal of a criminal case from the county court, 

the district court acts as an intermediate court of appeals, and 

its review is limited to an examination of the record for error 

or abuse of discretion. State v. Thalken, 299 Neb. 857, 911 

N.W.2d 562 (2018); State v. Avey, 288 Neb. 233, 846 N.W.2d 

662 (2014). Both the district court and a higher appellate 

court generally review appeals from the county court for error 

appearing on the record. Id. When reviewing a judgment for 

errors appearing on the record, an appellate court’s inquiry is 

whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Id. But we independently review questions of law in 

appeals from the county court. Id. When deciding appeals from 

criminal convictions in county court, we apply the same standards of review that we apply to decide appeals from criminal 

convictions in district court. Id.

[6] On a defendant’s motion to dismiss based on discriminatory or selective prosecution, the State is entitled to 

have all its relevant evidence accepted or treated as true, 

every controverted fact as favorably resolved for the State, 

and every beneficial inference reasonably deducible from the 

evidence. See State v. Katzman, 228 Neb. 851, 424 N.W.2d 

852 (1988).

ANALYSIS

In this case, Valentino generally contends that he was 

selectively prosecuted for soliciting prostitution. In particular, he asserts that the decision by law enforcement to target 

and prosecute male buyers of sex was selective prosecution 

because it was an unlawful, deliberate discrimination based on 

a suspect class, namely the arrestee’s gender. Valentino also 
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asserts that a policy of denying pretrial diversion to buyers 

was impermissible gender-based discrimination.

With respect to pretrial diversion, Valentino contends that 

the county attorney improperly failed to give reasons for 

denying him participation in the pretrial diversion program. 

We find no impropriety. We refer to Clayton v. Lacey, 256 

Neb. 282, 589 N.W.2d 529 (1999), which primarily involved 

a question of appealability. Although in Clayton we disapproved of the county attorney’s failure to give a reason for 

denying participation in pretrial diversion, we ultimately dismissed the challenge, because the defendant had pursued an 

unacceptable form of action. The crime for which the defendant in Clayton was prosecuted was specifically identified on 

the list of crimes eligible for pretrial diversion. In contrast, 

the crime of soliciting with which Valentino was charged was 

not listed as an eligible offense, and thus our disapproval of 

providing no reasons for denial in Clayton is not warranted in 

this case.

[7] The State’s decision to deny an arrestee admission into a 

pretrial diversion program is a decision to prosecute and may 

be attacked by a claim of selective prosecution. We need not 

separately analyze Valentino’s pretrial diversion selective prosecution contention, because it is encompassed by Valentino’s 

claim that he was selectively brought to trial. See Clayton v. 

Lacey, supra. Thus, Valentino’s claims of selective prosecution with regard to pretrial diversion and trial are but a single 

claim that he was selectively prosecuted based on his gender. 

As explained below, we conclude that Valentino did not proffer sufficient evidence of selective prosecution to entitle him 

to relief.

[8] It is important to underscore that the general rule regarding prosecutorial discretion in law enforcement is that unless 

there is proof that a particular prosecution was motivated by 

an unjustifiable standard based, for example, on race, religion, 

nationality, sex, or political affiliation, the use of such discretion does not violate constitutional protections. See, State v. 
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Katzman, supra; Salaiscooper v. Dist. Ct., 117 Nev. 892, 34 

P.3d 509 (2001).

[9-11] To establish a selective prosecution claim, it has 

been generally held that a defendant must demonstrate that the 

prosecution “had a discriminatory effect and that it was motivated by a discriminatory purpose.” Wayte v. United States, 

470 U.S. 598, 608, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985). 

As in the present case, this requires the defendant to establish 

(1) that similarly situated individuals of a different gender 

were not prosecuted and (2) that the decision to prosecute 

was “invidious or in bad faith,” based upon impermissible 

considerations or the desire to prevent the defendant’s exercise 

of his or her constitutional rights. State v. Katzman, 228 Neb. 

851, 855, 424 N.W.2d 852, 856 (1988). See United States v. 

Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687 

(1996). It has been observed that the trial court has the remedy 

of dismissing the charge against the defendant if such intentional and purposeful discriminatory enforcement is shown. 

City of Minneapolis v. Buschette, 307 Minn. 60, 240 N.W.2d 

500 (1976).

With respect to obtaining discovery in support of a selective 

prosecution claim, a defendant must produce “some evidence” 

making a “credible showing” of both discriminatory effect and 

discriminatory intent. United States v. Armstrong, 517 U.S. 

at 470. Just as the standard for ultimately proving a selective 

prosecution claim is a rigorous one, so, too, is the evidentiary 

threshold for obtaining discovery from the State or government 

to support such a claim. United States v. Armstrong, supra. The 

U.S. Supreme Court has observed:

Our cases delineating the necessary elements to prove a 

claim of selective prosecution have taken great pains to 

explain that the standard is a demanding one. These cases 

afford a “background presumption” . . . that the showing 

necessary to obtain discovery should itself be a significant barrier to the litigation of insubstantial claims.

Id., 517 U.S. at 463-64 (citation omitted).
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Turning to Valentino’s arguments on appeal, his claims 

are predicated on the view that only men were prosecuted as 

buyers of sex and that such prosecution was driven by bad 

faith. However, the record does not support Valentino’s view. 

Sergeant Miller testified that he had not arrested a woman 

for solicitation of prostitution, but that he had also never 

encountered a woman as a buyer. The deputy county attorney 

testified that the Lancaster County Attorney will “prosecute 

who shows up on our doorstep” and would prosecute women 

charged with soliciting a prostitute. It has been observed and 

we agree that “[t]he police do not intentionally discriminate 

against one gender by the absence of attempts to detect and 

apprehend offenders of the other gender, when no evidence is 

presented that offenders of the other gender are engaging in 

similar criminal behavior.” Branche v. Com., 25 Va. App. 480, 

489, 489 S.E.2d 692, 696-97 (1997). Thus, Valentino did not 

show that similarly situated women were not prosecuted for 

solicitation as buyers or that the prosecutorial decision had a 

discriminatory effect. See, United States v. Armstrong, supra; 

State v. Katzman, supra.

To the extent that Valentino asserts that solicitation is gender 

specific and impermissible, a plain reading of the statute is to 

the contrary. State v. Stanko, 304 Neb. 675, 936 N.W.2d 353 

(2019) (noting that in absence of anything indicating otherwise, statutory language is to be given its plain and ordinary 

meaning). Section 28-801.01 regarding solicitation provides as 

follows: “(1) Any person who solicits another person not his 

or her spouse to perform any act of sexual contact or sexual 

penetration, as those terms are defined in section 28-318, in 

exchange for money or other thing of value, commits solicitation of prostitution.” (Emphasis supplied.)

Neb. Rev. Stat. § 28-801 (Reissue 2016) regarding prostitution provides in relevant part as follows:

(1) Except as provided in subsection (5) of this section, 

any person who performs, offers, or agrees to perform 

any act of sexual contact or sexual penetration, as those 
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terms are defined in section 28-318, with any person not 

his or her spouse, in exchange for money or other thing 

of value, commits prostitution.

(Emphasis supplied.)

In Nebraska, solicitation and prostitution are separate 

gender-neutral offenses, meaning they can be committed by 

either men or women. In particular, as can be seen in the 

foregoing gender-neutral statutory language regarding solicitation and prostitution, the defendant is referred to as “any 

person” and “his or her.” Compare City of Minneapolis v. 

Buschette, 307 Minn. 60, 240 N.W.2d 500 (1976) (referring in 

footnote to historical prostitution statutes which applied only 

to women).

With respect to bad faith, Valentino has not shown that the 

State acted with a discriminatory purpose with respect to the 

decision to prosecute. A court will not presume a discriminatory purpose. See State v. Katzman, 228 Neb. 851, 424 N.W.2d 

852 (1988).

The record shows that Valentino’s application for pretrial 

diversion was denied because the county attorney’s office 

follows written eligibility Diversion Guidelines under which 

neither solicitation nor, incidentally, prostitution is identified 

as an eligible offense. Other courts have found, and we agree, 

that where a government distinguishes between buyers and 

sellers of sex and offers pretrial diversion to one group but 

not the other, the deterrence of crime is a valid, gender-neutral 

motivation for the differential policy. See, e.g., Salaiscooper v. 

Dist. Ct., 117 Nev. 892, 34 P.3d 509 (2001). The record shows 

that the NJSI operation was designed to reduce prostitution—

a valid motivation—and targeted buyers of prostitution and 

that it could have resulted in arrests of either men or women 

as buyers. Valentino has not made an adequate showing that 

the denial of his request for participation in a pretrial diversion program or that the prosecutor’s decision to prosecute 

him was based on an impermissibly discriminatory reason. 

Furthermore, the rulings on motions about which Valentino 
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complains are encompassed by the foregoing analysis and were 

not erroneous. Neither the county court nor the district court 

erred when it found that Valentino had not been selectively 

prosecuted based upon his gender.

CONCLUSION

A government’s decision to deny pretrial diversion is a decision to prosecute, and we find no merit to Valentino’s claim 

that he was selectively prosecuted for solicitation based on 

gender. The order of the district court, which affirmed the 

county court’s rulings and Valentino’s conviction for solicitation in the county court, is affirmed.

Affirmed.

Heavican, C.J., not participating.