State v. Boyd

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www.nebraska.gov/apps-courts-epub/
09/22/2020 09:07 AM CDT
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Nebraska Court of Appeals Advance Sheets
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STATE v. BOYD
Cite as 28 Neb. Ct. App. 874
State of Nebraska, appellant and cross-appellee,
v. Paula Boyd, appellee and cross-appellant.
___ N.W.2d ___
Filed September 22, 2020. No. A-19-753.
1. Trial: Convictions: Evidence: Appeal and Error. An appellate court
will sustain a conviction in a bench trial of a criminal case if the prop-
erly admitted evidence, viewed and construed most favorably to the
State, is sufficient to support that conviction. In making this determi-
nation, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, evaluate explanations, or reweigh
the evidence presented, which are within a fact finder’s province for
disposition. Instead, the relevant question 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.
2. Sentences: Appeal and Error. Whether an appellate court is reviewing
a sentence for its leniency or its excessiveness, a sentence imposed by
a district court that is within the statutorily prescribed limits will not
be disturbed on appeal unless there appears to be an abuse of the trial
court’s discretion.
3. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for 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, after reviewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
4. Criminal Law: Statutes: Appeal and Error. When analyzing the text
of a criminal statute, an appellate court follows settled principles of
statutory construction.
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5. Criminal Law: Statutes. Penal statutes are considered in the context of
the object sought to be accomplished, the evils and mischiefs sought to
be remedied, and the purpose sought to be served.
6. ____: ____. Effect must be given, if possible, to all parts of a penal
statute; no sentence, clause, or word should be rejected as meaningless
or superfluous if it can be avoided.
7. Statutes. In the absence of anything indicating otherwise, statutory lan-
guage is to be given its plain and ordinary meaning.
8. ____. The legal principle of expressio unius est exclusio alterius (the
expression of one thing is the exclusion of the others) recognizes the
general principle of statutory construction that an expressed object of a
statute’s operation excludes the statute’s operation on all other objects
unmentioned by the statute.
9. Contracts. Contract actions are created to protect the interest in hav-
ing promises performed. Contract obligations are imposed because of
conduct of the parties manifesting consent, and are owed only to the
specific individuals named in the contract.
10. Statutes: Words and Phrases. The term “context” in the statutory
phrase “unless the context otherwise requires” means the context within
which a defined statutory term is used within the statute’s substan-
tive provisions.
11. Statutes. It is a general principle of statutory construction that to the
extent there is a conflict between two statutes, the specific statute con-
trols over the general statute.
12. Sentences: Probation and Parole: Appeal and Error. When the State
appeals from a sentence, contending that it is excessively lenient, an
appellate court reviews the record for an abuse of discretion, and a grant
of probation will not be disturbed unless there has been an abuse of
discretion by the sentencing court.
13. Sentences: Appeal and Error. Whether an appellate court is reviewing
a sentence for its leniency or its excessiveness, a sentence imposed by
a district court that is within the statutorily prescribed limits will not
be disturbed on appeal unless there appears to be an abuse of the trial
court’s discretion.
14. Judgments: Appeal and Error. 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.
15. Sentences: Appeal and Error. The trial court’s sentencing determina-
tion and an appellate court’s review of that determination for an abuse
of discretion are not formulaic or simply a matter of doctrine.
16. Sentences. The sentencing court is not limited in its discretion to any
mathematically applied set of factors.
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17. ____. 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.
18. ____. Evidence regarding a defendant’s life, character, and previous
conduct, as well as prior convictions, is highly relevant to the determina-
tion of a proper sentence.
19. Sentences: Appeal and Error. It is not the function of an appellate
court to conduct a de novo review of the record to determine whether a
sentence is appropriate.
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman,
and Donald W. Kleine, Douglas County Attorney, and Katie
Benson for appellant.
Mallory N. Hughes, of Dornan, Troia, Howard, Breitkreutz
& Conway, P.C., L.L.O., for appellee.
Moore, Chief Judge, and Riedmann and Welch, Judges.
Welch, Judge.
I. INTRODUCTION
Paula Boyd was convicted of abuse of a vulnerable adult,
a Class IIIA felony, and was sentenced to 6 months’ proba-
tion and ordered to pay a $5,000 fine. The State has appealed,
contending that the sentence imposed was excessively lenient.
Boyd has cross-appealed, contending that the evidence was
insufficient to support her conviction. For the reasons set forth
here, we affirm Boyd’s conviction and sentence.
II. STATEMENT OF FACTS
Sometime in 2017, Boyd sold her east coast home and
planned to move to the west coast. During her cross-country
trip, she stopped in Omaha, Nebraska, in May to visit her
sister and their 89-year-old mother, Dorothy Pistillo. During
Boyd’s nearly monthlong stay in Omaha, she resided with
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her mother to help care for her in order to relieve her sister
from those duties.
On June 15, 2017, Boyd called the 911 emergency dispatch
service and firefighters and paramedics arrived at Pistillo’s
home shortly before 11:30 a.m. Boyd met responders at the
front door. Boyd reported that her mother had been on the
floor “for a few days,” had not been eating, and would not
get up. One of the first responders described “a pungent, bad
odor” that smelled like “rotten fecal matter” coming from the
residence. Another described the odor emanating from the
home as smelling like “feces” and a “strong urine smell,”
and still another described the odor as smelling like “death.”
First responders found Pistillo lying on the floor of the living
room with her body, from the shoulders down, covered with a
blanket and her head resting on a pillow. Pistillo was covered
in her own fecal matter and urine, and the carpet was stuck to
her body.
After an Omaha firefighter and paramedic spoke with
Pistillo, he decided that she needed further care and decided
to transport her to the hospital despite Pistillo’s statement that
she did not want to go to the hospital. En route to the hospi-
tal, Pistillo received inravenous fluids and oxygen. During the
ambulance transport to the hospital, one paramedic described
Pistillo as “alert and oriented.” However, another paramedic
stated that although Pistillo was “very weak and fragile,”
Pistillo was able to answer some questions and “seemed to
understand initially what was going on,” but by the time that
the ambulance reached the hospital, Pistillo “seemed a little
more confused [and] not able to answer all questions.”
At the hospital, Pistillo reported to medical personnel that
“she [felt] terrible [and] ha[d] pain everywhere.” Pistillo’s inju-
ries included open sores to her right buttocks area, as well as to
her right back area, knee, foot, and toes. Boyd told doctors that
she “ha[d] tried to get [her mother] to go to the doctor recently
but [her mother] refus[ed].”
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Cite as 28 Neb. Ct. App. 874
Hospital personnel contacted law enforcement to report con-
cerns that Pistillo may have been abused or neglected. An
Omaha police detective spoke with Pistillo in her hospital
room and stated that Pistillo “appeared confused” and that
Pistillo’s answers “didn’t make a lot of sense.” She further
testified that, based upon her physical observations of Pistillo,
it appeared to the detective that Pistillo needed a caretaker and
that Pistillo needed someone to assist her with feeding, bath-
ing, and cleaning herself.
Later that afternoon, officers returned to Pistillo’s residence
to execute a search warrant. Later that day, other officers
contacted Boyd. An Omaha police report stated that Boyd
informed officers that she had moved into her mother’s home
about 4 weeks prior and that Boyd’s sister had “normally
watched over their mother until [Boyd] started living there.”
Boyd informed one of the officers that
her mother had fallen on the living room floor in front of
the fireplace about a week ago and has been laying there
since. She said her mother has not eaten all week and has
urinated/defecated on herself the time she has been on
the floor. BOYD pointed out the spot on the floor where
her mother was laying which she said she cleaned up the
mess. [The reporting officer] noticed what appeared to
be a spot on the carpet where someone had attempted to
clean the carpet due to the swirl pattern on the carpet.
[The reporting officer] asked BOYD why she did not call
911 for help or her mother[’s] doctor and she said her
mother told her not to. BOYD said she called 911 this
morning for a medic to check her mother. [The report-
ing officer] called dispatch who advised [the reporting
officer] they received a 911 call from [the] above address
today at 11:20 from “Nick”. [The reporting officer] did
not speak to “Nick”, Mother, or [Boyd’s sister] who were
not on call.
Boyd was charged with abuse of a vulnerable adult, a Class
IIIA felony, and tampering with physical evidence, a Class
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IV felony. A trial to the bench was held where the aforemen-
tioned evidence was presented. Following the bench trial,
the district court found Boyd guilty of abuse of a vulnerable
adult and found her not guilty of tampering with physical evi-
dence. Following the preparation of a presentence investigation
report, the district court stated that it had considered the fac-
tors set forth in State v. Thurman, 273 Neb. 518, 730 N.W.2d
805 (2007), and sentenced Boyd to 6 months’ probation and
ordered her to pay a $5,000 fine. The court noted at the sen-
tencing hearing that he considered “the five days that [Boyd
had] already served as sufficient.”
III. ASSIGNMENTS OF ERROR
The State contends that the district court abused its discre-
tion in imposing an excessively lenient sentence. Boyd cross-
appealed, contending that the evidence was insufficient to sup-
port the verdict.
IV. STANDARD OF REVIEW
[1] An appellate court will sustain a conviction in a bench
trial of a criminal case if the properly admitted evidence,
viewed and construed most favorably to the State, is suffi-
cient to support that conviction. State v. Montoya, 304 Neb.
96, 933 N.W.2d 558 (2019). In making this determination,
an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, evaluate explanations, or
reweigh the evidence presented, which are within a fact find-
er’s province for disposition. Id. Instead, the relevant question
is whether, after viewing the evidence in the light most favor-
able to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. Id.
[2] Whether an appellate court is reviewing a sentence for
its leniency or its excessiveness, a sentence imposed by a dis-
trict court that is within the statutorily prescribed limits will
not be disturbed on appeal unless there appears to be an abuse
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of the trial court’s discretion. State v. Gibson, 302 Neb. 833,
925 N.W.2d 678 (2019).
V. ANALYSIS
1. Boyd’s Appeal
We first address Boyd’s assignment of error in connection
with her cross-appeal. Boyd assigns and argues that there was
insufficient evidence to support a finding that she knowingly
and intentionally neglected a vulnerable adult in violation of
Neb. Rev. Stat. § 28-386 (Reissue 2016). Specifically, as it
relates to the elements of that offense, Boyd argues that there
was insufficient evidence to find that (a) Pistillo was a “‘vul-
nerable adult,’” (b) Boyd was a “‘caregiver,’” and (c) Boyd
committed an “‘act’” which caused or permitted Pistillo to be
neglected as required under § 28-386(1)(f). We will discuss
these arguments independently.
(a) Vulnerable Adult
Boyd was specifically charged with a violation of
§ 28-386(1)(f). That statute provides that “[a] person commits
knowing and intentional abuse, neglect, or exploitation of a
vulnerable adult or senior adult if he or she through a know-
ing and intentional act causes or permits a vulnerable adult
or senior adult to be: . . . (f) [n]eglected[.]” § 28-386(1). The
State’s amended information alleged that, between June 10
and 15, 2017, Boyd did “knowingly and intentionally commit
[an] act, which caused or permitted . . . PISTILLO, a vulner-
able adult, to be neglected, in violation of Neb. Rev. Stat.
§28-386[,] a Class IIIA Felony.” Boyd first argues that there
was insufficient evidence in the record to support a finding that
Pistillo was a “vulnerable adult.”
Neb. Rev. Stat. § 28-371 (Reissue 2016) defines “[v]ulner-
able adult” as “any person eighteen years of age or older
who has a substantial mental or functional impairment or for
whom a guardian or conservator has been appointed under the
Nebraska Probate Code.” Because no guardian or ­conservator
had been appointed for Pistillo, Boyd argues that the State
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was required to show that Pistillo suffered from a “substantial
mental or functional impairment” in order to qualify as a vul-
nerable adult and simply failed to do so at the time of trial. In
support of this contention, Boyd argues:
There was no evidence presented by any expert or lay wit-
ness that [Boyd’s] mother was suffering from a substantial
mental or functional impairment during the time [Boyd]
was staying at her residence. On the contrary, the record
is full of paramedic and medical opinions describing
[Boyd’s] mother as “answering questions appropriately”,
“no possible injury”, “normal baseline for patient with
respect to neurological state”, “alert”, “oriented”, “well
nourished”, and capable of “declining a feeding tube.”
Brief for appellee on cross-appeal at 9-10.
[3] Neb. Rev. Stat. § 28-368 (Reissue 2016) defines
“[s]ubstantial functional impairment” as “a substantial incapa-
bility, because of physical limitations, of living independently
or providing self-care as determined through observation, diag-
nosis, investigation, or evaluation.” In reviewing a criminal
conviction for 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. State v. Garcia, 302 Neb. 406, 923 N.W.2d 725 (2019).
The relevant question for an appellate court is whether, after
reviewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Id.
Here, Boyd herself acknowledged that her 89-year-old
mother had been on the floor for days, would not get up,
and had not eaten before Boyd requested medical assistance.
When medical assistance arrived, the attendants documented
that Pistillo’s skin had adhered to the carpet and that she was
wearing soiled adult “Depends” undergarments. The paramed-
ics attending to Pistillo decided to transport her to the hospital
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because she would not get up by herself and appeared unable
to care for herself. Taken together, this testimony provided
sufficient evidence of “observation[s]” that Pistillo was suf-
fering from “a substantial incapability, because of physical
limitations, of living independently or providing self-care.”
As such, the district court did not err in finding that Pistillo
was a “vulnerable adult” as that term is defined by Nebraska
statute. See § 28-368. That portion of Boyd’s assignment of
error fails.
(b) Boyd Was Not Caregiver
Boyd next argues that in order to find neglect, the fact
finder must first determine that Boyd was Pistillo’s caregiver
and that there was insufficient evidence in the record to support
that finding.
As we previously stated, the State specifically charged
Boyd with knowingly and intentionally causing a vulnerable
adult to be neglected. “Neglect” is defined in Neb. Rev. Stat.
§ 28-361.01 (Reissue 2016), which provides:
Neglect means any knowing or intentional act or omis-
sion on the part of a caregiver to provide essential services
or the failure of a vulnerable adult, due to physical or
mental impairments, to perform self-care or obtain essen-
tial services to such an extent that there is actual physical
injury to a vulnerable adult or imminent danger of the
vulnerable adult suffering physical injury or death.
The term “caregiver” is separately defined in Neb. Rev. Stat.
§ 28-353 (Reissue 2016), which provides: “Caregiver shall mean
any person or entity which has assumed the responsibility for
the care of a vulnerable adult voluntarily, by express or implied
contract, or by order of a court of competent jurisdiction.”
[4-7] Boyd argues that in order to be convicted of neglect
of a vulnerable adult, she must be a caregiver to Pistillo,
and she argues that the above-stated definition of caregiver
requires that such person or entity must assume that role by
either express or implied contract or by order of a court of
competent jurisdiction. Stated differently, Boyd argues there
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is no third category of a caregiver, that being one who volun-
tarily assumes the role of caregiver without a contract or court
order. In furtherance of that interpretation, Boyd argues that
the placement of the word “voluntarily” in § 28-353 suggests
an intent by the Legislature to modify the terms “express or
implied contract” and “order of a court of competent jurisdic-
tion,” and not to create a third category of caregiver—one
who voluntarily agrees to serve in that role without an agree-
ment and without a court order. We disagree with the pro-
posed interpretation.
[W]hen analyzing the text of a criminal statute, we follow
settled principles of statutory construction. Penal statutes
are considered in the context of the object sought to be
accomplished, the evils and mischiefs sought to be rem-
edied, and the purpose sought to be served. Effect must be
given, if possible, to all parts of a penal statute; no sen-
tence, clause, or word should be rejected as meaningless
or superfluous if it can be avoided. And in the absence of
anything indicating otherwise, statutory language is to be
given its plain and ordinary meaning.
State v. Ferrin, 305 Neb. 762, 772, 942 N.W.2d 404, 412 (2020).
In crafting the language of § 28-353, the Legislature stated
that a “[c]aregiver shall mean any person or entity which has
assumed the responsibility for the care of a vulnerable adult
voluntarily, by express or implied contract, or by order of a
court of competent jurisdiction.” By stating that a “caregiver”
is a person or entity who assumes responsibility for the care
of a vulnerable adult, followed by providing an exclusive list
of methods that, in the alternative, establish the assumption
of that responsibility, all of which methods are separated by
commas, the Legislature utilized a customary form of statu-
tory construction.
[8,9] The Nebraska Supreme Court has referred to the con-
struction, when crafted in this manner, as “[t]he legal principle
of expressio unius est exclusio alterius.” Jacobson v. Shresta,
288 Neb. 615, 623, 849 N.W.2d 515, 521 (2014). “The legal
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principle of expressio unius est exclusio alterius (the expres-
sion of one thing is the exclusion of the others) recognizes the
general principle of statutory construction that an expressed
object of a statute’s operation excludes the statute’s operation
on all other objects unmentioned by the statute.” Id. Thus, when
the language is styled in this manner, it appears as an expres-
sion by the Legislature that assuming the responsibility of care
can be accomplished in three exclusive ways—voluntarily, by
express or implied contract, or by court order. Further, inter-
preting the word “voluntarily” in § 28-353 as an expression of
a separate form of assumption of responsibility, rather than a
word modifying the phrases “by express or implied contract”
or “by order of a court of competent jurisdiction,” provides
a more reasonable interpretation of that sentence. If we were
to read the word “voluntarily” as modifying the phrase “by
express or implied contract,” we would be suggesting that
a voluntary contract is different than an ordinary express or
implied contract. Id. To the contrary, in Moglia v. McNeil Co.,
270 Neb. 241, 251, 700 N.W.2d 608, 618 (2005), the Nebraska
Supreme Court cited William L. Prosser, Handbook of the Law
of Torts § 92 (4th ed. 1971), for the following proposition:
“‘Contract actions are created to protect the interest in having
promises performed. Contract obligations are imposed because
of conduct of the parties manifesting consent, and are owed
only to the specific individuals named in the contract.’” As
such, a contract, by definition, already incorporates the notion
of voluntary consent to a promise and to suggest we read the
word “voluntarily” as modifying the phrase “by express of
implied contract” would render that term unnecessary or super-
fluous to § 28-353. As we previously stated, “Effect must be
given, if possible, to all parts of a penal statute; no sentence,
clause, or word should be rejected as meaningless or superflu-
ous if it can be avoided.” State v. Ferrin, 305 Neb. at 772, 942
N.W.2d at 412.
Accordingly, contrary to Boyd’s argument, § 28-353 does
not limit family caregiver status to an order of court or
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express or implied contract. The statute also includes refer-
ence to any person who has assumed responsibility for the
care of a vulnerable adult voluntarily. Here, the record indi-
cates that Boyd moved into Pistillo’s house to help care for
her and to give her sister a break, because her sister was the
person who normally took care of Pistillo. The record then
indicated certain acts of care by Boyd in connection with
Pistillo prior to her eventually calling for medical assistance
for Pistillo. Again, an appellate court will sustain a conviction
in a bench trial of a criminal case if the properly admitted
evidence, viewed and construed most favorably to the State,
is sufficient to support that conviction. State v. Montoya, 304
Neb. 96, 933 N.W.2d 558 (2019). In making this determina-
tion, an appellate court does not resolve conflicts in the evi-
dence, pass on the credibility of witnesses, evaluate explana-
tions, or reweigh the evidence presented, which are within a
fact finder’s province for disposition. Id. Instead, the relevant
question 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. Id.
Here, there was sufficient evidence to support that Boyd
voluntarily assumed responsibility for the care of her mother,
a vulnerable adult. As such, that portion of Boyd’s assignment
of error, that there was insufficient evidence in the record to
satisfy that Boyd was a caregiver, fails.
(c) Act by Boyd
Boyd finally argues that in order to be guilty of the crime of
knowing and intentional neglect of a vulnerable adult, she must
have committed a knowing and intentional act which caused or
permitted the vulnerable adult to be neglected. Here, she argues
that the record is devoid of any such act and that the district
court erred in finding she committed one. In support of this
contention, Boyd argues:
The Nebraska Criminal Code defines “act” as “a bodily
movement, [including] words and possession of property.”
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Neb. Rev. Stat. § 28-109(1) (Reissue 2016). By using the
term “act” as opposed to “conduct” or “failure to act,” the
[L]egislature intended to limit criminal liability under this
count for only those defendants who commit a knowing
and intentional “bodily movement.” This is consistent
with legislative intent to respect the civil rights of the
elderly adult, as discussed above.
Brief for appellee on cross-appeal at 16-17 (emphasis in
original).
Alternatively, Boyd argues that § 28-386 is ambiguous in
stating: “Further, to the extent that ‘act,’ as stated in the statute
under which [Boyd] was charged, conflicts with the concept
of neglect (which is an act or omission), the specific subsec-
tion [Boyd] is alleged to have violated, an ambiguity is created
which requires resolution in [Boyd’s] favor.” Brief for appellee
on cross-appeal at 17.
Section 28-386(1), as charged by the State, requires a “know-
ing and intentional abuse, neglect, or exploitation of a vulner-
able adult or senior adult if he or she through a knowing and
intentional act causes or permits a vulnerable adult or senior
adult to be: . . . (f) [n]eglected.” And as we previously stated,
§ 28-361.01 provides:
Neglect means any knowing or intentional act or omis-
sion on the part of a caregiver to provide essential services
or the failure of a vulnerable adult, due to physical or
mental impairments, to perform self-care or obtain essen-
tial services to such an extent that there is actual physical
injury to a vulnerable adult or imminent danger of the
vulnerable adult suffering physical injury or death.
Boyd attempts to argue that this statutory construction cre-
ates an ambiguity, because § 28-386 requires a physical act or
words, while neglect can include an action or omission, and
that this conflict in definition requires that we resolve this mat-
ter in favor of Boyd.
[10] Contrary to Boyd’s assertions, the statutory language of
Neb. Rev. Stat. § 28-109 (Reissue 2016) provides, in pertinent
part: “For purposes of the Nebraska Criminal Code, unless the
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context otherwise requires: (1) Act shall mean a bodily move-
ment, and includes words and possession of property.” The
Nebraska Supreme Court recently had occasion to review the
meaning of the phrase “unless the context otherwise requires”
in Heiden v. Norris, 300 Neb. 171, 912 N.W.2d 758 (2018).
Although the court was specifically reviewing the phrase in
connection with Neb. Rev. Stat. § 43-1801 (Reissue 2016), the
court’s explanation of the phrase has parallel application here.
In Heiden, the Nebraska Supreme Court held:
A review of our case law suggests that the “context”
referred to in § 43-1801 is not the factual circumstances
presented by a case, but the context of the statutory lan-
guage itself. In Pig Pro Nonstock Co-op v. Moore, [253
Neb. 72, 568 N.W.2d 217 (1997),] we examined, but ulti-
mately rejected, cases from other jurisdictions that went
beyond the context of the statute to the facts in order to
determine whether a cooperative was designated “non-
profit” for purposes of a statutory scheme. As another
court has since explained: “The term ‘context’ in the stat-
utory phrase ‘unless the context otherwise requires’ means
the context ‘within which [a defined statutory term] is
used within the statute’s substantive provisions.’”
300 Neb. at 177, 912 N.W.2d at 763.
[11] Applying that construction here, § 28-386, as charged
by the State, required a knowing and intentional act which
caused or permitted a vulnerable adult to be neglected. Neglect
is then defined as an act or omission on the part of the care-
giver. Whereas the term “act” is generally defined in relation
to the entire criminal code and generally relates to a physical
act, its meaning is modified by the phrase “unless the context
otherwise requires.” Here, the more specific statute governing
the term “neglect” in relation to an act expands the meaning
of act to include an act or omission. It is a general principle
of statutory construction that to the extent there is a conflict
between two statutes, the specific statute controls over the
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general statute. State v. Kennedy, 299 Neb. 362, 908 N.W.2d
69 (2018).
Here, by allowing Pistillo to remain in her condition without
seeking assistance for the protracted period of time as demon-
strated by this record, there was sufficient evidence to support
the court’s finding of a knowing and intentional omission on
the part of Boyd, the caregiver, to provide essential services to
Pistillo, a vulnerable adult. Accordingly, Boyd’s claim that the
record does not contain sufficient evidence to support a know-
ing and intentional “act” by her fails.
2. State’s Appeal
Having determined that Boyd’s claim of insufficiency of
the evidence to support her conviction fails, we now address
the State’s claim that the district court abused its discretion in
imposing an excessively lenient sentence.
[12-14] As the Nebraska Supreme Court recently stated in
State v. Gibson, 302 Neb. 833, 839-40, 925 N.W.2d 678, 683-
84 (2019):
When the State appeals from a sentence, contending
that it is excessively lenient, [an appellate] court reviews
the record for an abuse of discretion, and a grant of
probation will not be disturbed unless there has been an
abuse of discretion by the sentencing court. There is not
a different standard of review for sentences when the
State appeals a sentence as excessively lenient or when
a defendant appeals a sentence as excessive; an appellate
court reviews for an abuse of discretion in either case.
Whether an appellate court is reviewing a sentence for
its leniency or its excessiveness, a sentence imposed by
a district court that is within the statutorily prescribed
limits will not be disturbed on appeal unless there appears
to be an abuse of the trial court’s discretion. An abuse of
discretion occurs 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.
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In reviewing whether a sentencing court abused its
discretion in imposing a sentence that was excessively
lenient, we are guided by the factors set forth by Neb. Rev.
Stat. § 29-2322 (Reissue 2016), as well as by the statu-
tory guidelines set out for the direction of the ­sentencing
judge in imposing or withholding imprisonment.
Section 29-2322 provides that in determining whether
the sentence imposed is excessively lenient, an appellate
court shall have regard for:
“(1) The nature and circumstances of the offense;
“(2) The history and characteristics of the defendant;
“(3) The need for the sentence imposed:
“(a) To afford adequate deterrence to criminal conduct;
“(b) To protect the public from further crimes of the
defendant;
“(c) To reflect the seriousness of the offense, to pro-
mote respect for the law, and to provide just punishment
for the offense; and
“(d) To provide the defendant with needed educational
or vocational training, medical care, or other correctional
treatment in the most effective manner; and
“(4) Any other matters appearing in the record which
the appellate court deems pertinent.”
[15-19] Boyd was convicted of a Class IIIA felony, which
is punishable by 0 to 3 years’ imprisonment followed by 9 to
18 months’ postrelease supervision if imprisonment is imposed
and/or a $10,000 fine. See, Neb. Rev. Stat. § 28-105 (Reissue
2016); § 28-386. Class IIIA felonies have no mandatory mini-
mum. See § 28-105. As noted by the court in Gibson:
Section 29-2260(2) allowed the district court to impose
a period of probation in lieu of incarceration upon its
assessment of certain criteria set forth therein. Section
29-2260 provides in part:
“(2) Whenever a court considers sentence for an
offender convicted of either a misdemeanor or a felony
for which mandatory or mandatory minimum imprison-
ment is not specifically required, the court may withhold
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sentence of imprisonment unless, having regard to the
nature and circumstances of the crime and the history,
character, and condition of the offender, the court finds
that imprisonment of the offender is necessary for protec-
tion of the public because:
“(a) The risk is substantial that during the period of
probation the offender will engage in additional criminal
conduct;
“(b) The offender is in need of correctional treatment
that can be provided most effectively by commitment to a
correctional facility; or
“(c) A lesser sentence will depreciate the seriousness of
the offender’s crime or promote disrespect for law.
“(3) The following grounds, while not controlling the
discretion of the court, shall be accorded weight in favor
of withholding sentence of imprisonment:
“(a) The crime neither caused nor threatened serious
harm;
“(b) The offender did not contemplate that his or her
crime would cause or threaten serious harm;
“(c) The offender acted under strong provocation;
“(d) Substantial grounds were present tending to excuse
or justify the crime, though failing to establish a defense;
“(e) The victim of the crime induced or facilitated
commission of the crime;
“(f) The offender has compensated or will compensate
the victim of his or her crime for the damage or injury the
victim sustained;
“(g) The offender has no history of prior delinquency
or criminal activity and has led a law-abiding life for a
substantial period of time before the commission of the
crime;
“(h) The crime was the result of circumstances unlikely
to recur;
“(i) The character and attitudes of the offender indicate
that he or she is unlikely to commit another crime;
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“(j) The offender is likely to respond affirmatively to
probationary treatment; and
“(k) Imprisonment of the offender would entail exces-
sive hardship to his or her dependents.
“(4) When an offender who has been convicted of a
crime is not sentenced to imprisonment, the court may
sentence him or her to probation.”
302 Neb. at 841-42, 925 N.W.2d at 684-85. The Supreme Court
further stated:
While certain guidelines are set forth by statute, nei-
ther the trial court’s sentencing determination nor our
review of that determination for an abuse of discretion is
formulaic or simply a matter of doctrine. The sentencing
court is not limited in its discretion to any mathematically
applied set of factors. 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 surround-
ing the defendant’s life. Evidence regarding a defendant’s
life, character, and previous conduct, as well as prior
convictions, is highly relevant to the determination of a
proper sentence.
It is not the function of an appellate court to conduct
a de novo review of the record to determine whether a
sentence is appropriate. The standard is not what sentence
we would have imposed. If it were, we might reach a dif-
ferent result.
State v. Gibson, 302 Neb. 833, 843, 925 N.W.2d 678, 685
(2019).
Here, at the time that the presentence investigation report
was prepared, Boyd was 64 years old, widowed, and retired.
Boyd does not have any criminal convictions, and the level
of service/case management inventory assessed her as a low
risk to reoffend. She had recently sold her home on the east
coast and was relocating to the west coast, when she stopped
in Omaha to visit her sister and mother. Boyd had been staying
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in her mother’s home for approximately 1 month. The week
prior to Boyd’s calling 911 to assist her mother, her mother
had fallen and remained in that position. Boyd provided her
mother with juice and adult “Depends” undergarments. Further,
according to Boyd, her mother had instructed her not to call
her doctor or 911.
Although the facts in this case are very concerning, Boyd
has no criminal history and has led a law-abiding life prior
to the commission of this instant offense; the offense was the
result of circumstances unlikely to recur; Boyd’s character and
attitudes indicate that she is unlikely to commit another crime;
and she is likely to respond affirmatively to probationary treat-
ment. Further, imprisonment in this case is not necessary to
afford adequate deterrence to criminal conduct or to protect the
public from further crimes by Boyd. As the Nebraska Supreme
Court aptly stated in Gibson:
The sentence imposed by the district court was lenient,
but we cannot conclude that the court abused its discre-
tion by issuing a sentence that was excessively lenient. In
light of all the relevant sentencing considerations, the sen-
tence was not untenable, unreasonable, or clearly against
justice or conscience, reason, and evidence.
302 Neb. at 846, 925 N.W.2d at 687.
VI. CONCLUSION
In sum, we reject both Boyd’s claim that the evidence was
insufficient to support her conviction and the State’s claim that
the sentence imposed was excessively lenient. Accordingly, we
affirm Boyd’s conviction and sentence.
Affirmed.