State v. Thomas

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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STATE v. THOMAS
Cite as 25 Neb. App. 256State of Nebraska, appellee, v.
Michael R. Thomas, appellant.
___ N.W.2d ___
Filed November 7, 2017. No. A-16-1195.
1. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the determination made by the
court below.
2. Criminal Law: Evidence: Appeal and Error. In reviewing a suffi-
ciency of the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same: An appellate
court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for the finder
of fact. The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.
3. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
4. Judgments: Words and Phrases. An abuse of discretion occurs when a
trial court’s decision is based upon reasons that are untenable or unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
5. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
6. Statutes. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language.
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Cite as 25 Neb. App. 2567. Criminal Law: Statutes. When dealing with penal statutes, it is a
fundamental principle of statutory construction that they be strictly con-
strued. In doing so, a court cannot supply language which is absent from
the statutory definition for a criminal offense.
8. Criminal Law: Statutes: Legislature. A criminal statute includes only
those elements which the Legislature explicitly included in its text.
9. Criminal Law: Minors: Proof. Neb. Rev. Stat. § 28-707 (Cum. Supp.
2014) only requires proof of the status of the victim as a minor child;
the statute does not require proof of the victim’s actual identity or
birth date.
10. Trial: Presumptions. Under Neb. Rev. Stat. § 28-707(1) (Cum. Supp.
2014), triers of fact may apply to the subject before them that general
knowledge which any person must be presumed to have.
11. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable
legal principles in determining the sentence to be imposed.
12. Sentences. When imposing a sentence, the sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education and expe-
rience, (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 violence involved in the
commission of the offense.
13. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
Appeal from the District Court for Lancaster County, K evin
R. McM anaman, Judge, on appeal thereto from the County
Court for Lancaster County, M atthew L. Acton, Judge.
Judgment of District Court affirmed.
Joseph D. Nigro, Lancaster County Public Defender, and
Matthew Meyerle for appellant.
Douglas J. Peterson, Attorney General, and Sarah E. Marfisi
for appellee.
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Cite as 25 Neb. App. 256Moore, Chief Judge, and Bishop and A rterburn, Judges.
Bishop, Judge.
I. INTRODUCTION
Michael R. Thomas was convicted of negligent child abuse, a
Class I misdemeanor, and disturbing the peace, a Class III mis-
demeanor, after a bench trial in the county court for Lancaster
County. He appealed to the district court for Lancaster County,
which affirmed the judgment of the county court. On appeal
to this court, Thomas asserts the child abuse statute requires
proof of the identity and birth date of the victim. He also
claims that the evidence was insufficient for both convictions
and that his sentences are excessive. We affirm.
II. BACKGROUND
At approximately 1:30 a.m. on June 27, 2015, law enforce-
ment officers responded to a disturbance call at an apartment
building located on South 16th Street in Lincoln, Nebraska.
The officers were responding to the scene of an altercation
between Thomas and Yvette Taylor that took place in front of
the apartment building. Thomas was eventually issued a cita-
tion by one of the officers at the scene.
At trial, the State provided witness testimony from two
officers, a neighbor, and a guest of the neighbor on the night
in question. The neighbor lives in an apartment on the second
floor of the building, with a balcony overlooking the front
entrance. She testified that the neighborhood was “pretty
quiet” prior to the altercation between Thomas and Taylor and
that not many people were around. The neighbor, the guest,
and another person were socializing on the balcony at the
neighbor’s apartment when they heard loud screaming and
profanity in front of the building. The neighbor saw Thomas
and Taylor arguing loudly, and both appeared to be intoxi-
cated and were screaming obscenities at each other. Both the
neighbor and the guest testified a young female child was in
between Thomas and Taylor, crying and begging the adults
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Cite as 25 Neb. App. 256to stop fighting. The neighbor estimated the child’s age was
between 4 and 6 years old. The guest estimated the child to be
3 or 4 years old. Both testified their estimates were based on
their experience with children of a similar age.
The neighbor testified that during the argument, Thomas
became angry and shoved Taylor onto the concrete steps
behind her, where she hit her elbow and head. The neighbor
recalled the child was in between Taylor and Thomas at the
time, whereas the guest stated the child was 3 to 5 inches “[o]ff
to the side” of Taylor at the time. After witnessing Thomas
shove Taylor, both the neighbor and the guest went inside to
call the police. Both testified that while they were inside, they
could still hear Thomas and Taylor yelling and the child crying
despite the neighbor’s balcony door being shut.
When the police arrived, the neighbor observed Thomas
run inside the apartment building. The first officer to respond
also saw Thomas run into the apartment building when he
arrived at the scene and found Taylor being consoled by the
child. The officer testified that he was able to identify Taylor
based on previous interactions with her and that the child
consoling her was her daughter. The officer estimated the
child to be between 5 and 6 years old, based on his experience
with children.
The first officer was unable to make contact with Thomas
in the building, but the second officer testified he was able to
do so when he arrived and was able to issue a citation accord-
ingly. Taylor was deemed too intoxicated to care for the child,
so both Taylor and the child were transported to central head-
quarters. Taylor was “‘placed at detox,’” and the child was
approved by the Department of Health and Human Services to
stay with her maternal grandmother for the night. Based on all
of these interactions, the first officer stated there was not “any
chance” the child was older than 5 or 6 years old. Any further
trial evidence relevant to the errors assigned will be discussed
in our analysis below.
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Cite as 25 Neb. App. 256At the close of the State’s case in chief, Thomas moved to
dismiss the child abuse charge because the State did not enter
the name or birth date of the child victim into evidence. The
county court ruled that the exact identity (name and birth date)
of the victim is not an element of child abuse and that the State
must only show the victim is a minor child.
The county court found Thomas guilty of both negligent
child abuse and disturbing the peace and subsequently sen-
tenced him to 3 months’ imprisonment on each conviction, to
be served consecutively. Thomas appealed his convictions and
sentences to the district court. The district court affirmed the
convictions and the sentences, and Thomas now appeals from
that decision.
III. ASSIGNMENTS OF ERROR
Thomas assigns that the district court erred when it con-
cluded (1) the identity of the victim is not an essential ele-
ment of child abuse under Neb. Rev. Stat. § 28-707 (Cum.
Supp. 2014), (2) there was sufficient evidence to convict
Thomas of negligent child abuse under § 28-707 or of dis-
turbing the peace under Neb. Rev. Stat. § 28-1322 (Reissue
2016), and (3) the sentences imposed by the county court
were not excessive.
IV. STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the determination made by
the court below. State v. Beitel, 296 Neb. 781, 895 N.W.2d
710 (2017).
[2] In reviewing a sufficiency of the evidence claim, whether
the evidence is direct, circumstantial, or a combination thereof,
the standard is the same: An appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence; such matters are for the finder of
fact. The relevant question for an appellate court is whether,
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Cite as 25 Neb. App. 256after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.
State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).
[3,4] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630(2016). An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. State v. Hunnel, 290 Neb. 1039, 863 N.W.2d
442 (2015).
V. ANALYSIS
1. Essential Elements
of Child A buse
Thomas contends the exact identity of the victim is an
essential element of the crime of child abuse under § 28-707,
and he further asserts that “whether the identity of a minor
child is a required element of child abuse has not been previ-
ously addressed by Nebraska appellate courts.” Brief for appel-
lant at 18. He argues the State had to offer evidence establish-
ing the name and birth date of the child involved in order to
prove the victim was indeed a minor, and he further argues its
failure to do so means Thomas could not be convicted of child
abuse as a matter of law. The State claims the plain language
of the statute controls and does not require the exact name or
birth date of the victim. Before addressing these contrary posi-
tions, we first consider the legal principles governing statu-
tory interpretation.
[5-8] Statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. Beitel, supra. It is not within
the province of a court to read a meaning into a statute that is
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Cite as 25 Neb. App. 256not warranted by the language. Id. When dealing with penal
statutes as in this case, it is a fundamental principle of statu-
tory construction that they be strictly construed. See State v.
Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998). In doing so, a
court cannot supply language which is absent from the statu-
tory definition for a criminal offense. State v. Schaaf, 234 Neb.
144, 449 N.W.2d 762 (1989). The Nebraska Supreme Court
has held this to mean a criminal statute includes only those
elements which the Legislature explicitly included in its text.
Burlison, supra.The text of § 28-707 relevant here states: “(1) A person
commits child abuse if he or she knowingly, intentionally, or
negligently causes or permits a minor child to be: (a) Placed in
a situation that endangers his or her life or physical or mental
health.” When the offense is committed negligently and does
not result in serious bodily injury or death, it is a Class I mis-
demeanor. See § 28-707(3). The statute requires only that the
victim be a “minor child”; the status of the victim as a minor
child is plain and unambiguous. There is no requirement of
proof as to the name or birth date of the minor child anywhere
in the text.
Thomas relies on State v. Gay, 18 Neb. App. 163, 778
N.W.2d 494 (2009), and State v. Cebuhar, 252 Neb. 796, 567
N.W.2d 129 (1997), to argue that proving the victim is a minor
child implicitly requires evidence of the minor child’s name
and birth date, making them “essential elements.” Brief for
appellant at 20. Gay involved a prosecution against a defend­
ant for third degree domestic assault of his “intimate partner”
under Neb. Rev. Stat. § 28-323 (Reissue 2008), and Cebuhar
involved a prosecution for an assault on a “peace officer”
under Neb. Rev. Stat. § 28-931 (Reissue 1995). Thomas sug-
gests those cases interpret their respective statutes to require
proof of the name of the victim as an essential element in order
to show the victim was in the specific class of victims the rel-
evant laws sought to protect, e.g., intimate partners or peace
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Cite as 25 Neb. App. 256officers. However, neither Gay nor Cebuhar stands for the
proposition that the language of the relevant statutes requires
the exact name of the victim be proved as an additional or
essential element of the crime necessary for a conviction.
In Gay, supra, the statute at issue described third degree
domestic assault as causing bodily injury to an “intimate
partner” or placing an intimate partner in fear of imminent
bodily injury. The convicted defendant argued there was insuf-
ficient evidence to prove the victim of domestic assault in that
case was his intimate partner. The defendant argued that the
evidence did not demonstrate a sexual involvement between
himself and the victim, but, rather, a casual relationship, and
that therefore, the State failed to present evidence to establish
the victim of the assault was his intimate partner. Although
this court recognized there was no evidence the defendant and
victim had a sexual relationship, the court noted the statute
at issue did not provide that proof of a sexual relationship is
necessary to establish a dating relationship between the vic-
tim and the defendant. Since the evidence was sufficient to
demonstrate a dating relationship at the time of the assault,
the victim was the defendant’s intimate partner pursuant to
the domestic assault statute. As correctly noted by the district
court in the present matter, the question in Gay was the vic-
tim’s status as an intimate partner, and contrary to Thomas’
argument: “[T]he class of persons intended to be protected
by that statute did not require establishment of the identity
of the individual victim, but rather that person’s status as an
intimate partner.”
With regard to Cebuhar, supra, the district court’s order in
the present matter again correctly determined that the ques-
tion in Cebuhar was the status of the victim as a peace officer,
not the officer’s actual identity. Notably, the critical issue in
Cebuhar was the mens rea of the defendant with regard to that
status, an issue not presented in this case. The district court
further stated:
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Cite as 25 Neb. App. 256While proving the identity of the victim by name and
date of birth may be the most common way to prove the
status of the victim as a minor child, the Legislature did
not dictate that as an exclusive path. Giving the words of
. . . § 28-707 their plain and ordinary meaning leads this
Court to the conclusion that the State need not prove the
identity of the victim of Negligent Child Abuse; rather,
the law requires proof of the status of the victim as a
minor child.
[9] We agree with the district court that the plain and ordi-
nary meaning of § 28-707 only requires proof of the status of
the victim as a minor child; the statute does not require proof
of the victim’s actual identity or birth date. While offering
evidence of the exact name or birth date of a victim might be
the most persuasive manner to prove the status of a victim as
a minor child, especially if the child is older and the child’s
status as a minor may be less clear than in the present case, it
is not required by the statute. As has been repeatedly stated, it
is not within the province of the courts to read a meaning into
a statute that is not there, nor to read anything direct and plain
out of a statute. State v. Burlison, 255 Neb. 190, 583 N.W.2d
31 (1998).
2. Insufficient Evidence
(a) Negligent Child Abuse
Thomas argues the State did not put on sufficient evidence
to convict him of negligent child abuse. He makes this argu-
ment based on three facts about the evidence established
at trial. First, there was no evidence the child was actually
harmed or physically injured. Second, there was testimony that
Thomas did not intend to hurt the child, but instead “was pos-
turing by trying to get in the [child’s mother’s] face.” Brief for
appellant at 23. Finally, there was testimony that the child tried
to console her mother after the altercation.
[10] None of these facts demonstrate there was insufficient
evidence to support a conviction of negligent child abuse
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Cite as 25 Neb. App. 256under § 28-707. As noted previously, the relevant language
of § 28-707(1) states, “A person commits child abuse if he or
she knowingly, intentionally, or negligently causes or permits
a minor child to be: (a) Placed in a situation that endangers
his or her life or physical or mental health.” When interpreting
§ 28-707(1), “‘[t]riers of fact may apply to the subject before
them that general knowledge which any person must be pre-
sumed to have.’” See State v. Knutson, 288 Neb. 823, 844, 852
N.W.2d 307, 324 (2014).
The plain language of § 28-707 does not require evidence
showing the minor child suffered actual harm or physical
injury. It simply requires the minor child’s physical (or men-
tal) health be “endanger[ed].” Additionally, Thomas’ intent is
not relevant, as his conviction was for negligent child abuse, a
separate crime with a lesser punishment than intentional child
abuse. Compare § 28-707(3), (5), and (6) with § 28-707(4),
(7), and (8). Finally, the fact that the child was consoling her
mother does not undermine any of the evidence put on by the
State in order to convict Thomas under § 28-707.
The evidence at trial was sufficient for a rational trier
of fact to find the essential elements of the crime beyond
a reasonable doubt. Witnesses testified that on the night in
question, Thomas was in a heated argument with the child’s
mother at approximately 1:30 a.m. Thomas was described as
very aggressive and drunk at the time, and during the argu-
ment, he shoved the mother onto the concrete steps behind
her. Two witnesses observed that during the altercation, the
child was close to her mother when Thomas pushed the child’s
mother. The evidence differed as to the exact location of the
child, but all testimony placed her very near the altercation.
Although three witnesses had different estimates of the child’s
age, they only varied between the ages of 3 to 6 and were all
based on personal experiences with children. No objections
were made to any of the testimony regarding the child’s age.
There was evidence the child was extremely upset and cry-
ing throughout the incident as she attempted to protect her
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Cite as 25 Neb. App. 256mother, and the child’s cries could be heard inside an apart-
ment through a closed door. Given the child’s age, the child’s
proximity to the altercation, and the violence and injuries to
her mother which she witnessed, we find that a rational fact
finder with a general knowledge of children her age could
find the child’s physical or mental health was endangered by
Thomas’ actions.
(b) Disturbing the Peace
Thomas also contends the State did not put on suffi-
cient evidence to convict him of disturbing the peace under
§ 28-1322, because the evidence did not show Thomas acted
with the intention to disturb the peace and quiet of other indi-
viduals in the neighborhood. Thomas acknowledges that State
v. Broadstone, 233 Neb. 595, 447 N.W.2d 30 (1989), and a
case cited therein, The State v. Burns, 35 Kan. 387, 11 P. 161(1886), stand for the proposition that a conviction for disturb-
ing the peace is permitted “even where the offensive language
or disturbance is not directed at the complaining witness.”
Brief for appellant at 25. However, Thomas suggests his case
is distinguishable because of the following:
[In both Broadstone and Burns,] a closer examination of
the facts reveals that there was some nexus of intent to
annoy or harass or disturb the peace of the complaining
witness, in addition to others. By contrast, in [Thomas’]
case, no evidence was presented that [Thomas] acted with
any intent to annoy, harass, or disturb [the witnesses in
his case].
Brief for appellant at 25-26. Thomas asserts he therefore can-
not be convicted of disturbing the peace, because the State
did not establish that he acted with the intention to disturb the
peace and quiet of other individuals in the neighborhood.
However, the plain language of § 28-1322 does not require
proof Thomas intended to disturb the peace of others; it
requires only that his intentional acts resulted in disturbing
the peace of others. Section 28-1322(1) provides, “Any person
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Cite as 25 Neb. App. 256who shall intentionally disturb the peace and quiet of any per-
son, family, or neighborhood commits the offense of disturbing
the peace.” As acknowledged by Thomas, Broadstone, supra,affirmed a conviction for disturbing the peace even when the
offensive language or disturbance was not directed at the com-
plaining witness.
In Broadstone, the defendant was convicted of disturbing
the peace based upon evidence that he was observed using
foul language and hitting a stick against a telephone pole
outside an elementary school. Parents who were waiting for
their children to get out of school were nearby when children
started exiting the school. The parents heard the defendant
use profanity when 15 or 20 children were in the area, so the
parents approached the defendant because some of the chil-
dren appeared to be frightened. Although a complaining par-
ent testified he was not shocked by what he heard, that parent
was upset children were being exposed to it. When that parent
suggested the defendant should leave the area, the defendant
became violent and began shaking the stick and striking the
parent on the arm while also yelling obscenities. The Nebraska
Supreme Court stated:
“A breach of the peace is a violation of public order.
It is the same as disturbing the peace. The definition
of breach of the peace is broad enough to include the
offense of disturbing the peace; it signifies the offense of
disturbing the public peace or tranquility enjoyed by the
citizens of a community. . . .
“. . . The term ‘breach of the peace’ is generic and
includes all violations of public peace, order, decorum, or
acts tending to the disturbance thereof.”
State v. Broadstone, 233 Neb. 595, 599, 447 N.W.2d 30,
33 (1989) (quoting State v. Coomes, 170 Neb. 298, 102
N.W.2d 454 (1960)). Broadstone also referred to The State
v. Burns, 35 Kan. 387, 11 P. 161 (1886), noting that in that
case the defendant’s conviction for disturbing the peace was
affirmed even though the objectionable words and acts of the
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Cite as 25 Neb. App. 256defendant were directed toward someone other than the com-
plaining witness.
In Broadstone, the court noted the evidence established that
in addition to the defendant’s statements directed at the com-
plaining parent personally, the defendant’s use of profanity in
the presence of the children disturbed that parent. Broadstone
makes it clear that a defendant’s intentional act, which results
in a disturbance of the public peace or tranquility enjoyed by
the citizens of a community, does not require proof that the
defendant intended to disturb the peace and quiet of other indi-
viduals in the neighborhood.
Accordingly, the question is whether a rational fact finder
could find Thomas’ intentional actions breached the peace or
disturbed those who saw or heard him. We find that a rational
fact finder could reach that conclusion based on the evidence
admitted at Thomas’ trial. The evidence shows the altercation
took place at 1:30 a.m., and at the time, the neighborhood was
“pretty quiet” and not many people were around. Witnesses
testified Thomas was acting very aggressive and drunk, argu-
ing loudly and screaming profanity at Taylor before shoving
her to the ground. They also testified the screaming could be
heard inside a second floor apartment even with the balcony
door shut. This evidence could rationally be found to constitute
disturbing the peace.
3. Excessive Sentences
Thomas contends a sentence of 3 months’ imprisonment for
each conviction is excessive; he had requested a sentence of
probation. Thomas’ sentences for each of his convictions fell
within statutory limits. Negligent child abuse under § 28-707
is a Class I misdemeanor punishable by not more than 1
year’s imprisonment, a $1,000 fine, or both. See Neb. Rev.
Stat. § 28-106 (Cum. Supp. 2014). Disturbing the peace under
§ 28-1322 is a Class III misdemeanor punishable by up to 3
months’ imprisonment, a $500 fine, or both. See § 28-106.
(We note that Thomas’ offenses occurred prior to August 30,
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Cite as 25 Neb. App. 2562015, the effective date of 2015 Neb. Laws, L.B. 605, which
changed the classification of certain crimes and made certain
amendments to Nebraska’s sentencing laws.)
[11-13] Where a sentence imposed within the statutory
limits is alleged on appeal to be excessive, the appellate
court must determine whether the sentencing court abused
its discretion in considering and applying the relevant fac-
tors as well as any applicable legal principles in determin-
ing the sentence to be imposed. State v. Carpenter, 293 Neb.
860, 880 N.W.2d 630 (2016). When imposing a sentence, the
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 violence involved in the
commission of the offense. State v. Chacon, 296 Neb. 203,
894 N.W.2d 238 (2017). The appropriateness of a sentence
is necessarily a subjective judgment and includes the sen-
tencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the
defendant’s life. Id.The presentence investigation report notes that Thomas
appeared for his interview but left because he was not feeling
well, and the probation officer was unable to reschedule prior
to the sentencing hearing (it is not clear how much informa-
tion Thomas provided before leaving). However, the pre-
sentence investigation report does contain other information
gathered by the probation officer. The record shows Thomas
was 39 years old at the time of sentencing. He was married
but separated from his wife, and he had no dependents. He
completed his high school education through the 10th grade,
but attained his “GED.” He has a history of substance abuse
dating back to age 14, but reported that since the altercation in
this case, he had been sober and attending weekly meetings for
alcohol abuse. He also reported finding a job after the alterca-
tion, prior to which he was not employed.
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Cite as 25 Neb. App. 256Thomas’ record of convictions as an adult dates back to a
1995 conviction for unauthorized use of a motor vehicle (14
days’ jail time), followed by convictions for assault in 1996
(6 months’ jail time and $750 fine), driving under suspension
in 1997 (7 days’ jail time and 3 months’ probation), an open
container violation in 1999 (fine), and a separate incident lead-
ing to convictions for criminal trespass and criminal mischief
also in 1999 (30 days’ jail time). In 2000, he was convicted
of third degree assault (1 year’s imprisonment) and terroristic
threats (5 years’ imprisonment followed by 5 years’ probation;
his probation was later revoked). In 2005, Thomas was con-
victed of family violence in Wyoming (6 months’ jail time and
$750 fine). In 2006, Thomas was convicted of driving under
the influence and no operator’s license in Nebraska (7 days’
jail time). Two months later, in Wyoming, he was convicted of
aggravated assault and battery and reckless endangering (36 to
60 months’ imprisonment). In 2011, Thomas was convicted in
Nebraska for resisting arrest (1 year’s probation, but a proba-
tion violation was filed approximately 2 months later). Finally,
in 2012, he was convicted of third degree domestic assault,
subsequent offense (20 months’ to 5 years’ imprisonment,
which he finished serving 3 months before his arrest in the
current case).
Thomas contends the court abused its discretion by failing
to give proper weight and consideration to the relevant sen-
tencing factors and all of the facts and circumstances surround-
ing his life. More specifically, Thomas claims the sentencing
court failed to meaningfully consider both the efforts he made
following the offense to rehabilitate himself and his compat-
ibility with a probationary sentence, which he asserts would
“keep him accountable.” Brief for appellant at 28.
The county court stated at the sentencing hearing it could
not overlook Thomas’ 20-year criminal history which included
multiple assault convictions—the most recent sentence of
which Thomas had been discharged from serving only 3
months prior to the altercation leading to the convictions in
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Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. THOMAS
Cite as 25 Neb. App. 256this case. The court specifically concluded Thomas was not an
appropriate candidate for probation based on his criminal his-
tory, which includes a prior probation revocation and a sepa-
rate probation violation being filed.
It is within the discretion of the trial court whether to
impose probation or incarceration, and an appellate court
will uphold the court’s decision denying probation absent an
abuse of discretion. State v. Wills, 285 Neb. 260, 826 N.W.2d
581 (2013). Given the record before us and the court’s stated
reasoning, we do not find the court’s sentences untenable or
unreasonable, nor do we find them to be against justice or
conscience, reason, and the evidence.
VI. CONCLUSION
For the reasons set forth above, we affirm Thomas’ convic-
tions and sentences.
A ffirmed.