State v. Greer ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/23/2022 12:06 AM CDT
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. GREER
Cite as 312 Neb. 351State of Nebraska, appellee, v.
Christina M. Greer, appellant.
___ N.W.2d ___
Filed September 2, 2022. No. S-21-601.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is
correct is a question of law, regarding which an appellate court is obli-
gated to reach a conclusion independent of the determination reached
by the trial court.
2. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
the record de novo to determine whether a trial court has abdicated its
gatekeeping function when admitting expert testimony.
3. ____: ____: ____. When the trial court has not abdicated its gatekeeping
function when admitting expert testimony, an appellate court reviews
the trial court’s decision to admit or exclude the evidence for an abuse
of discretion.
4. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
5. 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.
6. Jury Instructions: Appeal and Error. Jury instructions are subject
to harmless error review, and an erroneous jury instruction requires
reversal only if the error adversely affects the substantial rights of the
complaining party.
7. Jury Instructions: Proof: Appeal and Error. In an appeal based upon
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
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STATE V. GREER
Cite as 312 Neb. 3518. Rules of Evidence: Expert Witnesses. Four preliminary questions
must be answered in order to determine whether an expert’s testi-
mony is admissible: (1) whether the witness qualifies as an expert
pursuant to Neb. Rev. Stat. § 27-702 (Reissue 2016); (2) whether
the expert’s testimony is relevant; (3) whether the expert’s testimony
will assist the trier of fact to understand the evidence or determine
a controverted factual issue; and (4) whether the expert’s testimony,
even though relevant and admissible, should be excluded in light of
Neb. Rev. Stat. § 27-403 (Reissue 2016) because its probative value
is substantially outweighed by the danger of unfair prejudice or other
considerations.
9. Trial: Expert Witnesses. A trial court acts as a gatekeeper to ensure
the evidentiary relevance and reliability of an expert’s opinion, and this
gatekeeping function entails a preliminary assessment whether the rea-
soning or methodology underlying the testimony is valid and whether
that reasoning or methodology properly can be applied to the facts
in issue.
10. ____: ____. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), does not create a special
analysis for answering questions about the admissibility of all expert
testimony. Not every attack on expert testimony amounts to a Daubert
claim. If a witness is not offering opinion testimony, that witness’ testi-
mony is not subject to inquiry pursuant to Daubert.
11. Sentences: Appeal and Error. When sentences imposed within stat-
utory limits are alleged on appeal to be excessive, the appellate
court must determine whether the sentencing court abused its discre-
tion in considering well-established factors and any applicable legal
principles.
12. Judges: Words and Phrases. A judicial abuse of discretion exists only
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.
13. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (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.
14. ____. 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
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STATE V. GREER
Cite as 312 Neb. 351of the defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.
15. ____. It is within the discretion of the trial court to direct that sen-
tences imposed for separate crimes be served consecutively. The test
of whether consecutive sentences may be imposed under two or more
counts charging separate offenses, arising out of the same transaction or
the same chain of events, is whether the offense charged in one count
involves any different elements than an offense charged in another
count. The test is whether some additional evidence is required to prove
one of the other offenses.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed.
Thomas P. Strigenz, Sarpy County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
The defendant, Christina M. Greer, was charged with 13
counts in four separate cases, all relating to allegations of
sexual assault of a child. Greer was convicted of 11 of those
counts and sentenced to an aggregate sentence of 64 to 102
years’ imprisonment. Greer appeals. We affirm.
BACKGROUND
Charges Against Greer.
Greer was charged in four separate cases. In the first case,
she was originally charged with one count of first degree sex-
ual assault of W.F. (also known as A.F.), a 13-year-old boy who
was friends with Greer’s 11-year-old daughter. That charge was
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STATE V. GREER
Cite as 312 Neb. 351later amended to one count of first degree sexual assault of a
child and two counts of witness tampering.
In the second case, Greer was charged with three counts of
first degree sexual assault of a child, J.H., a 13-year-old boy
who was friends with Greer’s 9-year-old son. In the third case,
Greer was charged with six counts of intentional child abuse of
A.F. and J.H.; of Greer’s daughter; and of A.R., A.J., and C.P.,
identified as friends of Greer’s daughter. In the fourth case,
Greer was charged with child enticement of P.M., a 13-year-old
boy who attended school with Greer’s daughter.
These four cases were consolidated for trial on January 21,
2021.
Pretrial Motions.
Greer was first charged in March 2018, but did not come to
trial until March 2, 2021. Since that time, Greer has had three
attorneys: appointed counsel; retained counsel; and at trial, the
Sarpy County public defender, who was appointed on April 2,
2020, and represents Greer in this appeal.
As relevant to this appeal, the primary reason for the delay
in Greer’s trial was various motions filed by the State under
Neb. Rev. Stat. § 27-404 (Reissue 2016) (other bad acts) and
Neb. Rev. Stat. § 27-414 (Reissue 2016) (prior sexual con-
duct). Generally, the State sought to introduce evidence that
Greer (1) had engaged in uncharged sex acts with other chil-
dren, (2) had engaged in uncharged sex acts with already iden-
tified victims, and (3) was “grooming” the children through the
supplying of alcohol and marijuana edibles. In support of its
contention that evidence relating to Greer’s grooming of chil-
dren who came to her home, the State offered the testimony of
Colleen Brazil, the forensic interview program manager at a
child advocacy center.
The first such motion regarding §§ 27-404 and 27-414 was
filed on December 26, 2018. At a hearing on February 7, 2019,
Brazil testified about the concept of “grooming” and the behav-
iors it encompasses. Greer’s daughter and J.H. testified about
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STATE V. GREER
Cite as 312 Neb. 351Greer’s conduct in the cases wherein each was a named victim.
The State’s motion was granted on March 1.
On August 6, 2019, Greer sought a motion in limine to
prevent the State from mentioning or using the term “groom-
ing” without the court’s permission, as it was a “term of art
that requires expert testimony.” On August 7, the district court
granted the State’s motion to continue and noted that it would
take up the motions in limine at a later hearing. The district
court held a hearing on Greer’s motions in limine on March 3,
2020, and denied the motions, noting that it had addressed the
issue in various § 27-404 hearings.
Brazil’s Testimony.
Trial began on March 2, 2021. On March 3, Greer filed
a motion seeking an order to strike Brazil as an expert wit-
ness, as well as to strike her testimony regarding grooming,
because such theories violated standards set forth in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 1 and Schafersman v.
Agland Coop. 2
The State called Brazil to testify on March 4, 2021. Greer
objected when the State asked Brazil if she was familiar with
the term “grooming.” The district court initially indicated
that “grooming” was not an appropriate topic for a Daubert
hearing and that Brazil was an expert in the field of child
advocacy. But the district court ultimately agreed to hold a
Daubert hearing.
At that hearing, Brazil once again testified on the concept
of grooming. Brazil also testified that she knew very little
about the facts of Greer’s case and that she would not offer
an opinion as to whether Greer’s alleged victims were, in fact,
groomed by Greer. The State also offered three court opinions
and an article about grooming.
1
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).
2
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
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STATE V. GREER
Cite as 312 Neb. 351In ruling for the State, the court indicated that it did not
think Daubert should apply, but that the Nebraska Court of
Appeals’ opinion in State v. Edwards 3 held that Daubert did
apply. The district court explicitly noted it believed that the
difference between the Edwards case and Greer’s situation
was based on the fact that the expert in Edwards specifically
opined that the defendant in that case had engaged in groom-
ing. The district court found that Brazil was an expert and
allowed her to testify, but noted that the State should not
stray into questions about whether Greer’s actions amounted
to grooming.
When Greer’s counsel sought to clarify the grounds of the
court’s ruling, the court explained that it was ruling that Brazil
was a qualified expert, that grooming was part of her expertise,
that there was sufficient peer review on the topic of grooming,
and that the evidence was more probative than prejudicial, but
that it also believed Daubert did not apply because Brazil was
not opining on whether Greer’s conduct amounted to groom-
ing. Brazil then testified at trial, subject to Greer’s continu-
ing objection.
The jury ultimately found Greer guilty of counts 1 through
3 and 5 through 12, and not guilty of counts 4 (sexual assault
of a child) and 13 (child enticement). Greer was sentenced to
a total of 64 to 102 years’ imprisonment, or 25 to 40 years’ for
the three counts of first degree sexual assault of a child, 2 to 3
years’ imprisonment on the six counts of child abuse, and 1 to
2 years’ imprisonment on the two counts of witness tampering.
The sentences were ordered to be served consecutively, except
that the 25-to-40-year sentence on count 6 was ordered to run
concurrent to Greer’s other sentences.
Jury Instructions.
Prior to closing arguments, the district court instructed the
jury, then took a brief recess. After the recess, the jury was
3
State v. Edwards, 28 Neb. App. 893, 949 N.W.2d 799 (2020).
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STATE V. GREER
Cite as 312 Neb. 351informed that instruction No. 4, the definition of the term
“penetration,” while taken from the Nebraska pattern jury
instructions, 4 was incomplete. As such, over Greer’s objection,
the instruction was revised to mirror the pattern instruction and
was read again to the jury.
Greer appeals from her convictions and sentences.
ASSIGNMENTS OF ERROR
Greer assigns, restated, that the district court erred in (1) the
procedure utilized in instructing the jury as to the definitions
included in instruction No. 4, specifically of the term “penetra-
tion”; (2) allowing Brazil to testify as an expert on the issue of
grooming; and (3) imposing excessive sentences.
STANDARD OF REVIEW
[1] Whether a jury instruction is correct is a question of
law, regarding which an appellate court is obligated to reach
a conclusion independent of the determination reached by the
trial court. 5
[2,3] An appellate court reviews the record de novo to
determine whether a trial court has abdicated its gatekeeping
function when admitting expert testimony. 6 When the trial
court has not abdicated its gatekeeping function, an appellate
court reviews the trial court’s decision to admit or exclude the
evidence for an abuse of discretion. 7
[4,5] 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. 8 A judicial abuse of discre-
tion exists only when the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a
4
NJI2d Crim. 4.6.
5
State v. Pope, 305 Neb. 912, 943 N.W.2d 294 (2020).
6
See Hemsley v. Langdon, 299 Neb. 464, 909 N.W.2d 59 (2018).
7
See id.8
State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
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STATE V. GREER
Cite as 312 Neb. 351substantial right and denying a just result in matters sub­
mitted for disposition. 9
ANALYSIS
Jury Instructions.
Greer first assigns that the district court erred in instruct-
ing the jury when it initially read an incomplete version of
instruction No. 4, then later read the complete version of that
same instruction. Greer asserts that the second reading of that
particular instruction, which included the definition of the term
“penetration,” was prejudicial to her because it emphasized
penetration to the jury in a case where she had strongly denied
committing an act of penetration. Greer suggests that at a mini-
mum, the district court ought to have read again all instruc-
tions in order to de-emphasize any one instruction.
[6,7] Jury instructions are subject to harmless error review,
and an erroneous jury instruction requires reversal only if the
error adversely affects the substantial rights of the complain-
ing party. 10 In an appeal based upon a claim of an erroneous
jury instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. 11
We find Greer’s arguments on appeal unpersuasive. We
first observe that the only instruction in our record relevant
to this assignment of error is the complete instruction No. 4,
read to the jury upon the court’s realization that the initial
instruction No. 4 was incomplete and later sent back with
the jury for its use during deliberations. Greer had the bur-
den to show that she was prejudiced by the court’s giving of
the original instruction. Yet Greer has provided no record of
what that initial, incomplete instruction contained. We can-
not determine whether Greer was prejudiced by the second
9
Id.10
State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
11
State v. Bao, 263 Neb. 439, 640 N.W.2d 405 (2002).
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Cite as 312 Neb. 351reading of the instruction if we do not know the full contents
of the first instruction.
And even if we could proceed based on our limited knowl-
edge of the contents of the incomplete instruction, we would
still conclude that Greer has failed to meet her burden to show
that the instruction procedure followed was prejudicial. First,
the cases upon which Greer relies—State v. Abram 12 and State
v. Claycamp 13—are distinguishable.
In Abram, the written jury instruction, which was not
objected to by the defendant or the State, read in relevant part
that “‘[t]he fact that the [d]efendant did not testify must be
considered by you as an admission of guilt . . . .’” 14 Copies of
the instruction containing this plainly incorrect language were
provided to the members of the jury to use while deliberating.
However, in orally instructing the jury, the court stated that
“‘[t]he fact that the [d]efendant did not testify must not be
considered by you as an admission of guilt . . . .’” 15 In other
words, the correct version of the instruction was read to the
jury, but the incorrect language was provided to the jury in
written form.
We held in Abram that this was not structural error, but sub-
ject to harmless error analysis. We concluded that even though
the correct language was actually read to the jury, the error was
not harmless. In so concluding, we reasoned that the incorrect
instructions were emphasized by virtue of having been written
and available to the jury during its deliberations.
In Claycamp, the defendant raised a defense of self-defense
at trial. At the conclusion of evidence, the court read to the jury
its instructions. The State and the defense then made closing
arguments. In response to some comments made by the State
in its argument, the court admonished the jury that it was
12
State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012).
13
State v. Claycamp, 14 Neb. App. 675, 714 N.W.2d 455 (2006).
14
State v. Abram, supra note 12, 284 Neb. at 60, 815 N.W.2d at 903.
15
Id.
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Cite as 312 Neb. 351“‘not to consider any sort of [the victim’s] conduct or the
consequences of his conduct. This is about the defendant . .
. .’” 16 The Court of Appeals noted that the admonishment to
the jury was contradictory to the earlier instructions regarding
the defendant’s defense of self-defense. The Court of Appeals
applied a harmless error standard and concluded that the error
was not harmless and that reversal was warranted.
Unlike Abram and Claycamp, where the instruction provided
was inconsistent with other instructions, was incorrect, or both,
here, there is no suggestion that the initial part of instruction
No. 4 read to the jury was incorrect—only that it was incom-
plete. This is reflected in the exchange between the court and
counsel when the court explained that it would be adding to
the instruction and reading it again. In fact, as we have noted
above, this record does not even include the language origi-
nally read to the jury—whether it be the original instruction the
court read from or a transcript of the court’s verbal instruction
as it would appear in the bill of exceptions.
In this case, we apply a harmless error standard and decline
to find any. First, this court lacks a complete record. Moreover,
there is no allegation that the initial instruction as read to the
jury was incorrect, but only that it was incomplete. Nor is there
any allegation that the final instruction read to the jury and sent
back with the jury during its deliberations was incorrect. We
note Greer’s argument that the reading again of the definition
of penetration emphasized that concept to the jury. However,
we conclude that it is not possible to determine whether any
alleged emphasis would have helped or harmed Greer, espe-
cially where Greer has directed us to no authority on point.
Greer has failed to meet her burden to show that she was
prejudiced by the procedure followed by the district court with
respect to instruction No. 4. As such, we find no merit to this
assignment of error.
16
State v. Claycamp, supra note 13, 14 Neb. App. at 680, 714 N.W.2d at
459.
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Cite as 312 Neb. 351Brazil’s Testimony.
In Greer’s second assignment of error, she assigns that the
district court erred in allowing Brazil to testify as an expert
on the issue of grooming. We construe Greer’s brief to argue
that the district court did not “adequately demonstrate specific
findings on the record that it had performed its duty as a gate-
keeper to find her as an expert on the issues of grooming.” 17
Greer further asserts that “grooming [was not] a scientifically
valid methodology.” 18
[8] Neb. Rev. Stat. § 27-702 (Reissue 2016) provides that
“[i]f scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to deter-
mine a fact in issue, a witness qualified as an expert by knowl-
edge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.” Four prelimi-
nary questions must be answered in order to determine whether
an expert’s testimony is admissible: (1) whether the witness
qualifies as an expert pursuant to § 27-702; (2) whether the
expert’s testimony is relevant; (3) whether the expert’s testi-
mony will assist the trier of fact to understand the evidence
or determine a controverted factual issue; and (4) whether the
expert’s testimony, even though relevant and admissible, should
be excluded in light of Neb. Rev. Stat. § 27-403 (Reissue 2016)
because its probative value is substantially outweighed by the
danger of unfair prejudice or other considerations. 19
[9,10] Under our Daubert 20 and Schafersman 21 jurispru-
dence, a “trial court acts as a gatekeeper to ensure the evi-
dentiary relevance and reliability of an expert’s opinion,” and
this gatekeeping function “entails a preliminary assessment
17
Brief for appellant at 22.
18
Id.19
City of Lincoln v. Realty Trust Group, 270 Neb. 587, 705 N.W.2d 432(2005).
20
Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 1.
21
Schafersman v. Agland Coop, supra note 2.
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Cite as 312 Neb. 351whether the reasoning or methodology underlying the tes-
timony is valid and whether that reasoning or methodology
properly can be applied to the facts in issue.” 22 Still, “Daubert
does not create a special analysis for answering questions about
the admissibility of all expert testimony. Not every attack on
expert testimony amounts to a Daubert claim. If a witness is
not offering opinion testimony, that witness’ testimony is not
subject to inquiry pursuant to Daubert.” 23
Finally, we have noted that
courts need not reinvent the wheel each time that special-
ized evidence is adduced. The proponent need not contin-
uously go through the exercise of re-proving reliability of
the same evidence in every case. Instead, once a Nebraska
trial court has actually examined and assessed the reli-
ability of a particular scientific wheel under Daubert, and
its determination has been affirmed on appeal, then other
courts may simply take judicial notice and ride behind.
In such cases, the proponent establishes a prima facie
case of reliability by relying on precedent, and the burden
shifts to the opponent to show that recent developments
raise doubts about the validity of previously relied-upon
theories or techniques. 24
We find no merit to Greer’s arguments on appeal. First, we
agree with the district court that Daubert was inapplicable
in this case. As noted above, our case law is clear that not
every instance of expert testimony is a Daubert issue. In this
case, prior to testifying, Brazil indicated that she did not have
any particular knowledge about Greer or the alleged victims
in this case and that she was not prepared to testify as to
whether Greer’s conduct qualified as grooming. And indeed,
22
State v. Robinson, 272 Neb. 582, 618, 724 N.W.2d 35, 68 (2006), abro­
gated on other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749(2010).
23
State v. Schreiner, 276 Neb. 393, 405, 754 N.W.2d 742, 754 (2008).
24
State v. Casillas, 279 Neb. 820, 838, 782 N.W.2d 882, 898 (2010).
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Cite as 312 Neb. 351her testimony was in conformity with her testimony at pre-
trial hearings—at no point did she offer any opinion about
Greer’s conduct.
Moreover, even if we were to conclude that Daubert was
applicable, a decision we need not reach here, the record shows
that the district court held a Daubert hearing. At that hearing,
Brazil testified to her many years of experience in conducting
and monitoring forensic interviews of child sexual assault vic-
tims, including attending and teaching seminars on that topic.
We find no abuse of discretion in the district court’s conclu-
sion, set out in the record, that Brazil qualified as an expert and
that her testimony was admissible.
We note also the confusion that seems to have resulted from
the Court of Appeals’ opinion in Edwards, which we find dis-
tinguishable and inapplicable. 25 The district court concluded
the factor that made Daubert an issue in Edwards was that
the pediatrician who testified regarding grooming in that case
testified the defendant’s actions were, in fact, grooming. The
distinction noted by the district court is in keeping with our
case law as set out above and is consistent with our conclusion
in this case. We further note that to the extent that Edwards
could be read to categorically reject such testimony, it is
disapproved.
There is no merit to Greer’s assignment of error regarding
Brazil’s testimony.
Excessive Sentences.
Finally, Greer assigns that the sentences imposed upon her
were excessive. As an initial matter, we note that all of Greer’s
sentences were within statutory limits and that the record
shows the court considered Greer’s presentence investigation
and all of the relevant factors as set forth in case law.
Instead, Greer primarily takes issue with the consecutive
nature of her sentences:
25
State v. Edwards, supra note 3.
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Cite as 312 Neb. 351The record reflects that counts 7 [through] 12 all arose
out of the same transactions and series of events. The
State agrees with this assertion as it filed a motion to
consolidate stating the same. . . . Because child abuse
allegations all arose out of the same times as count 1, they
therefore should be concurrent with each other as well as
to count 1.
Additionally, counts 5 and 6 should be concurrent with
one another as they are the same victim and are part of
the same series and chain of events. Finally, the evidence
shows that counts 2 and 3 all arose out of the same series
of transactions.
It is logical that the charges should be served
concurrently. 26
[11,12] 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. 27 A judicial abuse of discretion exists only when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. 28
[13,14] 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. 29 The sentencing court is not
limited to any mathematically applied set of factors, but the
26
Brief for appellant at 26.
27
State v. Blake, supra note 8.
28
Id.29
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Cite as 312 Neb. 351appropriateness 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. 30
[15] It is within the discretion of the trial court to direct
that sentences imposed for separate crimes be served consecu­
tively. 31 The test of whether consecutive sentences may be
imposed under two or more counts charging separate offenses,
arising out of the same transaction or the same chain of events,
is whether the offense charged in one count involves any dif-
ferent elements than an offense charged in another count. The
test is whether some additional evidence is required to prove
one of the other offenses. 32
We turn first to Greer’s contention that her sentence on
count 5 (first degree sexual assault of a child—J.H.) should
run concurrent to her sentence on count 6 (also first degree
sexual assault of a child—J.H.). We observe that, in fact, her
sentence on count 4 was ordered to be served concurrent to
the remainder of her sentences. As such, there is no merit to
this assertion.
Greer also argues that the child abuse counts against her all
arose out of the same transactions and series of events. But
while they involve the same general conduct on Greer’s part,
they also involve six different children and the State had to
separately prove the elements of child abuse as to each of the
children in order to obtain guilty verdicts.
Greer additionally argues that the child abuse counts arose
from the same set of facts as count 1 (first degree sexual
assault of a child—A.F.), and so, the sentences for child abuse
should run concurrently. But the elements the State had to
prove for child abuse are distinct from those for first degree
30
Id.31
State v. Andersen, 238 Neb. 32, 468 N.W.2d 617 (1991).
32
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Cite as 312 Neb. 351sexual assault of a child. We find no abuse of discretion in the
district court’s order sentencing Greer consecutively for any of
these convictions.
Finally, Greer argues that the tampering with a witness
counts arise from the same series of transactions. Again, as
to these counts, the State had to prove the elements of those
crimes as occurring on different occasions, and thus, different
evidence was required.
Because all of the counts required the proving of different
elements or different evidence, there was no abuse of discre-
tion in the district court’s sentences. There is no merit to this
assignment of error.
CONCLUSION
The district court’s judgments and convictions are affirmed.
Affirmed.