State v. Donohue , 199 Neb. 254 ( 1977 )

McCown, J.

The defendant, Timothy Donohue, pleaded guilty to the offense of sexual assault, first degree, and was sentenced to imprisonment in the Nebraska Penal and Correctional Complex for 8 to 25 years, and given credit for 121 days evaluation and jail time. The sole issue on appeal is whether or not the sentence is excessive.

On November 18, 1976, a 12-year-old girl was walking home from school and cut through a field on the outskirts of Grand Island, Nebraska. The defendant called to her to come over to some bushes where he was standing. She refused and when he approached, she ran. The defendant caught up with her, grabbed her, and when she held onto a tree, he hit her on the head and knocked her to the ground. She started to scream but the defendant put his hand over her mouth. He threatened to hit her again and knock her unconscious. After he had raped the girl, he told her that if she told anyone about it he would kill her. The victim ran to the next house and reported the incident to the householder who called the police. The defendant was arrested, identified, and pleaded guilty to the offense.

The District Court in sentencing the defendant found that the defendant’s acts did not cause serious physical injury to the victim but did cause severe emotional shock and therefore serious personal injury. The penalty for the crime of sexual assault, first degree, is imprisonment for not less than 1 year nor more than 25 years. The District Court imposed an indeterminate sentence of 8 to 25 years imprisonment.

Defendant was 18 years old at the time of this offense. His juvenile record included traffic offenses and two convictions for auto burglary. His adult record included three convictions for petit larceny and he was placed on probation on one of those convictions 3 days before the commission of the offense involved here. The presentence investigation report indicates similar sexual crimes against several other young girls which did not result in any charges.

The District Court temporarily committed the defendant to the Lincoln Regional Center for observation and diagnosis as a sexual sociopath. The directors of the Lincoln Regional Center and the Security Unit at the center both reported that, in their opinion, the defendant would not benefit from treatment in a regional center and should be sentenced to the Nebraska Penal and Correctional Complex.

In view of the nature of the crime and the facts set out in the presentence investigation report, and the necessity for protection of the public against repetition of defendant’s conduct, the District Court did not abuse its discretion and the sentence is not excessive. A sentence imposed within statutory limits will not be distrubed on appeal unless there is an abuse of discretion. State v. Williams, post p. 256, 257 N. W. 2d 832.

Affirmed.