State v. Gray , 307 Neb. 418 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
12/11/2020 08:08 AM CST
- 418 -
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 dis-
cretion 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 unsup-
ported by an analytical argument, the appellant fails to satisfy this
requirement.
5. Sentences: Appeal and Error. When sentences imposed within statu-
tory 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 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.
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 circum-
stances surrounding the defendant’s life.
- 419 -
Nebraska Supreme Court Advance Sheets
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 sen-
tence 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 discre-
tion by imposing an excessive sentence.
BACKGROUND
Pursuant to a plea agreement, Neland T. Gray, Jr., was con-
victed 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 com-
mit 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 eve-
ning, 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
- 420 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
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 ini-
tially 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 investiga-
tion 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 alterca-
tion, Gray also assaulted another woman who had attempted to
intervene on Ybarra’s behalf. Gray then threatened the inter-
vening 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 dur-
ing 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 boy-
friend had taunted Gray about their new relationship. The
family and friends asserted that Ybarra’s boyfriend sent Gray
- 421 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
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, sub-
stance 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 crim-
inal conduct, character, and flagrant violations of court orders.
The district court observed that Gray had been “abusive, con-
trolling, demeaning, possessive, and selfish” and had “shown a
complete unwillingness to follow orders of the Court.”
- 422 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. GRAY
Cite as 307 Neb. 418
The court pointed out that Gray had contacted Ybarra mul-
tiple 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 hav-
ing 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 unten-
able, 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’ imprison-
ment. 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).
- 423 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
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 ana-
lytical 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 discre-
tion 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) moti-
vation 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 math-
ematically 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).
- 424 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
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 set-
ting a minimum of life imprisonment, the court could not have
imposed a more severe minimum term for second degree mur-
der 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 manipu-
lated 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 con-
victions of violent conduct with others and with Ybarra spe-
cifically, 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.
- 425 -
Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
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 depriv-
ing 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.