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06/28/2019 12:06 AM CDT




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                                  Nebraska Supreme Court A dvance Sheets
                                          302 Nebraska R eports
                                                   STATE v. GIBSON
                                                  Cite as 302 Neb. 833




                                        State of Nebraska, appellant,
                                         v. Jason T. Gibson, appellee.
                                                    ___ N.W.2d ___

                                         Filed April 12, 2019.     No. S-17-1272.

                 1. 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.
                 2. 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.
                 3. Sentences: Appeal and Error. 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 appel-
                    late court reviews for an abuse of discretion in either case.
                 4. 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.
                 5. 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.
                 6. Sentences. The sentencing court is not limited in its discretion to any
                    mathematically applied set of factors.
                 7. ____. 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.
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             Nebraska Supreme Court A dvance Sheets
                     302 Nebraska R eports
                              STATE v. GIBSON
                             Cite as 302 Neb. 833

 8. ____. 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.
 9. 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.
10. Sentences. A sentence should fit the offender and not merely the crime.

   Petition for further review from the Court of Appeals, Pirtle,
R iedmann, and Bishop, Judges, on appeal thereto from the
District Court for Sarpy County, Stefanie A. M artinez, Judge.
Judgment of Court of Appeals reversed, and cause remanded
with directions.
   Phil Kleine, Deputy Sarpy County Attorney, for appellant.
   Donald L. Schense, of Law Office of Donald L. Schense,
for appellee.
  Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
   Freudenberg, J.
                      NATURE OF CASE
   The defendant was convicted of attempted sexual assault
of a child in violation of Neb. Rev. Stat. § 28-319.01(1)(b)
(Reissue 2016). The presentence investigation report (PSI)
indicates that the defendant believed the child to be 18 years
old. The defendant has no criminal record. The question pre-
sented in this appeal is whether the district court abused its
discretion in sentencing the defendant to 5 years’ probation
with 180 days of jail time as a condition of probation. The
State asserts that the sentence was excessively lenient and
involved inappropriate consideration of an irrelevant factor.
The Nebraska Court of Appeals, in a split decision, agreed.
We granted further review. We reverse the Court of Appeals’
decision and remand the matter with directions to affirm the
sentence of the district court.
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                         STATE v. GIBSON
                        Cite as 302 Neb. 833

                        BACKGROUND
   Jason T. Gibson was initially charged with first degree
sexual assault of a child in violation of § 28-319.01(1)(b),
a Class IB felony which is punishable by 20 years’ to life
imprisonment, with a mandatory minimum of 15 years’ impris-
onment. In exchange for his plea of no contest, the State
amended the charge to attempted first degree sexual assault of
a child, in violation of § 28-319.01(1)(b) and Neb. Rev. Stat.
§ 28-201 (Cum. Supp. 2018), a Class II felony. A Class II
felony is punishable by 1 to 50 years’ imprisonment, but no
mandatory minimum is required. There was no agreement
between the parties regarding their recommendations to the
court as to sentencing.
   A violation of § 28-319.01(1)(b) occurs when an actor 25
years of age or older subjects another person who is at least
12 years of age but less than 16 years of age to sexual penetra-
tion. As the factual basis for the crime, the State described that
another person, DeArch Stubblefield, was prostituting out the
victim, E.L., who was 15 years old. Between December 1, 2016,
and January 31, 2017, Gibson picked up E.L. and Stubblefield
and drove them to his house, where Gibson engaged in the
sexual penetration of E.L. Money was given to Stubblefield
by Gibson after the sexual intercourse.
   According to the PSI, Stubblefield, who was 18 years old,
attended the same high school as E.L. He and E.L. were
engaged in a sexual relationship for approximately 6 months
when Stubblefield began seeking sexual encounters through
“Craigslist.” Without consulting with E.L., Stubblefield decided
to post on Craigslist that he and E.L. were looking for someone
to have a “threesome with.” Stubblefield eventually told E.L.
that he had arranged a sexual encounter for the two of them
and asked her to participate. E.L. agreed, not knowing exactly
what was going to happen.
   This began a series of three sexual encounters with three dif-
ferent men, arranged by Stubblefield. During these encounters,
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                         STATE v. GIBSON
                        Cite as 302 Neb. 833

Stubblefield directed E.L.’s actions and the men sexually pen-
etrated E.L. Stubblefield also participated in the sexual activi-
ties to varying degrees.
   Gibson was one of the men who responded to Stubblefield’s
Craigslist posting. Gibson picked up E.L. and Stubblefield
and drove them to his house, where the sexual penetration
occurred. Gibson described that he believed that both E.L.
and Stubblefield were 18 years old. According to Gibson
and Stubblefield, the Craigslist posting stated that E.L. and
Stubblefield were both 18 years old. Also, according to Gibson,
E.L. and Stubblefield told him that E.L. was 18 years old.
   All communication leading up to the day of the sexual
contact was between Gibson and Stubblefield. Gibson told
Stubblefield that he did not wish to engage in a threesome
and was only interested in the young woman. Stubblefield was
in the room during the sexual penetration of E.L. by Gibson.
There were conflicting reports as to Stubblefield’s involvement
while in the room.
   After the sexual contact and before Gibson took E.L.
and Stubblefield home, Stubblefield asked Gibson for $40.
Stubblefield claimed he needed the money either to fix a
tire on his car or to buy gasoline. Gibson gave the money to
Stubblefield, who later split the money with E.L.
   The PSI showed that Gibson has no criminal record. A
search of his electronic devices confiscated as part of the
investigation failed to reveal any involvement in activities
similar to those for which he was convicted, or any other
crime. Gibson admitted to law enforcement that he had pre-
viously engaged in at least one other sexual encounter and
had chatted with people through other websites, but alleged
that these activities were between consenting adults and not
for money.
   Gibson has served for 16 years as a linguist in the U.S.
Air Force with consistently exemplary performance reviews
and numerous awards and decorations. Over 30 letters were
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                           STATE v. GIBSON
                          Cite as 302 Neb. 833

submitted to the district court attesting to Gibson’s good char-
acter and reputation. These letters described Gibson as a per-
son of integrity and character who consistently puts others
before himself. He was described as truthful, honest, dedicated,
honorable, hardworking, good natured, and mild mannered.
Clinical psychological evaluations concluded that Gibson was
not classified as a pedophile. He participated in several psycho-
logical assessments that concluded Gibson was at a low overall
risk to reoffend.
   The PSI indicated that Gibson was upfront and honest
with law enforcement from the beginning of the investigation.
Gibson immediately accepted responsibility for his actions.
Further, he expressed to the court that he was extremely
remorseful for what E.L. and her family must be going through.
   The State argued for a period of incarceration, while defense
counsel sought probation with no incarceration. Before pro-
nouncing its sentence, the district court noted the severity of
the crimes that had been committed against E.L. The court
said that it was a case that “is extremely difficult for the Court,
for the victim, for her family, and for the community.” The
court continued:
      There is no sentence that I’ll be able to give to you that
      will make [E.L.] whole again. I can hope that the system
      does what it is designed to do, and in my reading of the
      presentence investigation report, it indicates to me that
      this . . . Stubblefield has, in large part, the majority of the
      responsibility, from the materials I’ve received. And my
      hope is that he — [E.L.] is given some sort of justice in
      that sentence, most significantly.
   Turning to mitigating factors, the district court noted that
Gibson had demonstrated an appreciation for the seriousness
of his actions and had accepted responsibility for the crime
he committed.
   The court pronounced that Gibson would have to serve a
term of incarceration at the county jail for 180 days and that
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                             STATE v. GIBSON
                            Cite as 302 Neb. 833

“[t]here will be a term of probation for five years to be served
upon completion of that jail time.” The subsequent written
order of probation included a condition that Gibson serve
180 days in the Sarpy County jail, and an order of commit-
ment followed. We agree with the Court of Appeals’ majority
opinion that this written sentence imposed probation in lieu
of incarceration and imposed 180 days’ jail time as a valid
condition of probation under the authority conferred by Neb.
Rev. Stat. § 29-2260 (Reissue 2016). It was not a sentence
to incarceration below the minimum set forth in Neb. Rev.
Stat. § 28-105 (Reissue 2016). Neither party challenges that
the written order controls and sets forth a statutorily valid
sentence. To the extent that the district court appeared to
pronounce at the sentencing hearing a period of incarceration,
as opposed to jail time as a condition of probation, we agree
that the written order controlled over the invalid orally pro-
nounced sentence.1
   Besides 180 days in jail, the order of probation subjected
Gibson to numerous other general and individualized condi-
tions. Gibson was also subject to the Sex Offender Registration
Act, Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2016).
   The State appealed Gibson’s sentence under Neb. Rev. Stat.
§ 29-2321 (Reissue 2016) as excessively lenient. The Court
of Appeals, in a split decision, held that the court’s sentence
was excessively lenient.2 The Court of Appeals reasoned that
although the record demonstrated an unlikelihood that Gibson
would reoffend, the district court’s decision to impose pro-
bation in lieu of incarceration under § 29-2260(2) depreci-
ated the seriousness of the crime. Furthermore, the Court of
Appeals found that the district court had based its sentencing

1
    Compare State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009), with State
    v. Sorenson, 247 Neb. 567, 529 N.W.2d 42 (1995).
2
    State v. Gibson, 26 Neb. App. 559, 921 N.W.2d 161 (2018) (Bishop,
    Judge, dissenting).
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                             STATE v. GIBSON
                            Cite as 302 Neb. 833

decision in part on the impermissible and irrelevant factors
of Stubblefield’s culpability and probable sentence for his
involvement in the crime.
   We granted Gibson’s petition for further review.
                  ASSIGNMENTS OF ERROR
   In his brief in support of further review, Gibson asserts
that the Court of Appeals erred in (1) finding that the district
court abused its discretion by imposing an excessively lenient
sentence, (2) finding that the district court considered an irrel-
evant factor when imposing its sentence, and (3) vacating the
district court’s sentence and remanding the cause to the dis-
trict court with directions that a different district court judge
impose a greater sentence.
                    STANDARD OF REVIEW
   [1] 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
of the trial court’s discretion.3
                           ANALYSIS
   [2-4] When the State appeals from a sentence, contending
that it is excessively lenient, this 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.4 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.5 Whether an appellate court is reviewing a sentence for

3
    State v. Kennedy, 299 Neb. 362, 908 N.W.2d 69 (2018).
4
    State v. Hoffman, 246 Neb. 265, 517 N.W.2d 618 (1994).
5
    Id.
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                              STATE v. GIBSON
                             Cite as 302 Neb. 833

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
of the trial court’s discretion.6 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 jus-
tice or conscience, reason, and evidence.7
   In reviewing whether a sentencing court abused its discre-
tion 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 statutory guidelines set out
for the direction of the sentencing judge in imposing or with-
holding imprisonment.8
   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 promote
      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.

6
    State v. Moore, 274 Neb. 790, 743 N.W.2d 375 (2008).
7
    State v. Spang, ante p. 285, 923 N.W.2d 59 (2019).
8
    See State v. Hoffman, supra note 4 (citing § 29-2260).
                               - 841 -
              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                          STATE v. GIBSON
                         Cite as 302 Neb. 833

   Gibson was convicted of a Class II felony punishable by 1
to 50 years’ imprisonment,9 but with no mandatory minimum.
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 imprisonment is not
     specifically required, the court may withhold 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 imprison-
     ment of the offender is necessary for protection 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;

9
    See § 28-105(1).
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           Nebraska Supreme Court A dvance Sheets
                   302 Nebraska R eports
                         STATE v. GIBSON
                        Cite as 302 Neb. 833

         (e) The victim of the crime induced or facilitated com-
      mission 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;
         (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.
   The Court of Appeals held that imprisonment of Gibson is
necessary to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense. The Court of Appeals also held that the district court
based its sentencing decision on the improper consideration of
Stubblefield’s greater culpability. We agree with the majority
opinion’s assessment of the severity of the crime committed
against E.L. Nevertheless, in light of the evidence pertain-
ing to the numerous other relevant factors under the district
court’s consideration at sentencing, we cannot conclude that
Gibson’s sentence was untenable, unreasonable, or clearly
against justice or conscience, reason, and evidence. Further,
we find that the district court did not impermissibly factor into
its sentencing decision the relative culpability of Stubblefield
and Gibson.
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                                STATE v. GIBSON
                               Cite as 302 Neb. 833

   [5-8] While certain guidelines are set forth by statute, neither
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.10 The sentencing court is not limited in its
discretion to any mathematically applied set of factors.11 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 circum-
stances surrounding the defendant’s life.12 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.13
   [9] 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.14 The standard is not what sentence we would have
imposed.15 If it were, we might reach a different result.
   This was a very serious crime. The PSI contains little to
indicate that E.L. shared Stubblefield’s enthusiasm for experi-
mentation or wished for her body to be marketed and con-
trolled by another. More to the point, a 15-year-old is not of
a legal age to consent to such activities. A person of that age
who is subjected to sexual penetration by an adult is a victim
of sexual assault.
   Whether or not Gibson was aware of it, E.L. was being
trafficked by Stubblefield, who both arranged the contact with
adult men and directed E.L.’s activities with those men. There
is no justification for Gibson’s ignorance of this abuse. Gibson

10
     See State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007).
11
     State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).
12
     State v. Ralios, 301 Neb. 1027, 921 N.W.2d 362 (2019).
13
     See id. See, also, e.g., State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004);
     State v. Strohl, 255 Neb. 918, 587 N.W.2d 675 (1999).
14
     State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999).
15
     State v. Thompson, supra note 10.
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               Nebraska Supreme Court A dvance Sheets
                       302 Nebraska R eports
                               STATE v. GIBSON
                              Cite as 302 Neb. 833

arranged through Craigslist to have sex with a young woman
who looked young enough to prompt him to seek assurances
of her actual age. Gibson made all the arrangements for this
sexual encounter with another stranger who advertised the
young woman and alleged to speak for her. This should have
alerted Gibson to the potential serious criminal implications of
his continued participation.
   [10] Still, the seriousness of the crime committed against
E.L., which weighs in favor of imprisoning Gibson under statu-
tory guidelines setting forth a minimum period of imprison-
ment of 1 year, does not, by itself, lead to the conclusion that
the district court abused its discretion in sentencing Gibson to
5 years’ probation in lieu of incarceration. The crime commit-
ted by Gibson was serious, and that fact should not be dimin-
ished. However, a sentence should fit the offender and not
merely the crime.16
   In other cases involving Class II felonies of first degree
sexual assault and sexual assault of a child, a sentence of 5
years’ probation with strict and demanding terms has been
held not to be excessively lenient when the defendants were
considered to be neither pedophiles nor sexual predators, had
generally otherwise been law-abiding citizens, were remorse-
ful, and were at a low risk to reoffend.17 This is in contrast to
State v. Hoffman,18 in which we found the sentence of 5 years’
probation for the defendant convicted of first degree sexual
assault of a child was excessively lenient given the defend­
ant’s lengthy history of other sexual assaults upon the vic-
tim, which included violence; two prior theft convictions; an
evaluation that indicated the defendant was at risk of engaging
in additional criminal conduct during a period of probation;

16
     State v. Harrison, supra note 14.
17
     See, State v. Antoniak, 16 Neb. App. 445, 744 N.W.2d 508 (2008); State v.
     Thompson, supra note 10.
18
     State v. Hoffman, supra note 4.
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              Nebraska Supreme Court A dvance Sheets
                      302 Nebraska R eports
                              STATE v. GIBSON
                             Cite as 302 Neb. 833

and the fact that the defendant had expressed no remorse for
his actions.
   The PSI demonstrates that before this incident, Gibson led
an exemplary life. He served in the U.S. Air Force with numer-
ous awards and decorations. His family and friends attested
to his good character. And the court was able to evaluate
Gibson’s character during its observations of Gibson through-
out the judicial process. Gibson has no criminal record, and
his psychological assessment shows a low risk to reoffend.
Though he was wrong and should have known better, there
was no evidence that Gibson actually contemplated at the
time of his actions that he was committing a crime or causing
anyone harm. Gibson was upfront and cooperative with law
enforcement from the beginning of the investigation and was
by all accounts shocked when he learned E.L.’s real age. He
expressed that he was ashamed and extremely remorseful for
what E.L. and her family were going through as a result of
his crime.
   “While there is a temptation on a visceral level to conclude
that anything less than incarceration depreciates the seriousness
of crimes [involving sexual assault of a child], it is the func-
tion of the sentencing judge, in the first instance, to evaluate
the crime and the offender.”19 As stated, 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.20 The district court’s sentence was within the
statutorily prescribed limits, and the district court did not abuse
its discretion.
   As for the conclusion by the majority opinion of the Court
of Appeals that the district court based its decision on irrel-
evant considerations, we disagree that the district court’s

19
     State v. Thompson, supra note 10, 15 Neb. App. at 787-88, 735 N.W.2d
     at 835.
20
     See cases cites supra note 13.
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          Nebraska Supreme Court A dvance Sheets
                  302 Nebraska R eports
                        STATE v. GIBSON
                       Cite as 302 Neb. 833

comments regarding Stubblefield’s punishment improperly
influenced its sentencing decision. The district court appeared
to be merely commenting on the severity of all the crimes
against E.L. The court noted that E.L. deserved justice not
just for the crime committed by Gibson, but also for crimes
committed against her by Stubblefield. While the court indi-
cated its belief that Stubblefield had greater responsibility
in the overall scheme of the exploitation of E.L., there is no
indication that the court reduced Gibson’s punishment for his
crime because Stubblefield might justly be punished more
severely for his own crimes that played an important role in
the abuse.
   The sentence imposed by the district court was lenient,
but we cannot conclude that the court abused its discretion
by issuing a sentence that was excessively lenient. In light of
all the relevant sentencing considerations, the sentence was
not untenable, unreasonable, or clearly against justice or con-
science, reason, and evidence.
                         CONCLUSION
  For the foregoing reasons, we reverse the Court of Appeals’
decision and remand the matter with directions to affirm the
sentence of the district court.
                     R eversed and remanded with directions.
