Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/27/2020 09:07 AM CDT




                                                          - 96 -
                               Nebraska Supreme Court Advance Sheets
                                        305 Nebraska Reports
                                                 STATE v. VALENTINO
                                                   Cite as 305 Neb. 96




                                        State of Nebraska, appellee, v.
                                        Vincent Valentino, appellant.
                                                     ___ N.W.2d ___

                                         Filed February 21, 2020.   No. S-19-270.

                 1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
                    case from the county court, the district court acts as an intermediate
                    court of appeals, and its review is limited to an examination of the
                    record for error or abuse of discretion.
                 2. Courts: Appeal and Error. Both the district court and a higher appel-
                    late court generally review appeals from the county court for error
                    appearing on the record.
                 3. Judgments: Appeal and Error. When reviewing a judgment for errors
                    appearing on the record, an appellate court’s inquiry is whether the deci-
                    sion conforms to the law, is supported by competent evidence, and is
                    neither arbitrary, capricious, nor unreasonable.
                 4. Appeal and Error. An appellate court independently reviews questions
                    of law in appeals from the county court.
                 5. Criminal Law: Courts: Appeal and Error. When deciding appeals
                    from criminal convictions in county court, an appellate court applies the
                    same standards of review that it applies to decide appeals from criminal
                    convictions in district court.
                 6. Motions to Dismiss: Prosecuting Attorneys: Discrimination:
                    Evidence. On a defendant’s motion to dismiss based on discriminatory
                    or selective prosecution, the State is entitled to have all its relevant evi-
                    dence accepted or treated as true, every controverted fact as favorably
                    resolved for the State, and every beneficial inference reasonably deduc-
                    ible from the evidence.
                 7. Prosecuting Attorneys: Discrimination. The State’s decision to deny
                    an arrestee admission into a pretrial diversion program is a decision to
                    prosecute and may be attacked by a claim of selective prosecution.
                 8. Constitutional Law: Prosecuting Attorneys: Discrimination. The
                    general rule regarding prosecutorial discretion in law enforcement is that
                                    - 97 -
           Nebraska Supreme Court Advance Sheets
                    305 Nebraska Reports
                            STATE v. VALENTINO
                              Cite as 305 Neb. 96

    unless there is proof that a particular prosecution was motivated by an
    unjustifiable standard based, for example, on race, religion, nationality,
    sex, or political affiliation, the use of such discretion does not violate
    constitutional protections.
 9. Prosecuting Attorneys: Discrimination: Proof. To establish a selective
    prosecution claim, a defendant must demonstrate that the prosecution
    had a discriminatory effect and that it was motivated by a discrimina-
    tory purpose.
10. Constitutional Law: Prosecuting Attorneys: Discrimination: Proof.
    A defendant claiming selective prosecution based on gender must estab-
    lish (1) that similarly situated individuals of a different gender were not
    prosecuted and (2) that the decision to prosecute was invidious or in bad
    faith, based upon impermissible considerations or the desire to prevent
    the defendant’s exercise of his or her constitutional rights.
11. Prosecuting Attorneys: Discrimination: Dismissal and Nonsuit. In a
    selective prosecution claim, the trial court has the remedy of dismissing
    the charge against the defendant if intentional and purposeful discrimi-
    natory enforcement is shown.

   Appeal from the District Court for Lancaster County, Jodi
L. Nelson, Judge, on appeal thereto from the County Court
for Lancaster County, Laurie J. Yardley, Judge. Judgment of
District Court affirmed.
  Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.
  Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
   Vincent Valentino, pro se.
  Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
   Miller-Lerman, J.
                      NATURE OF CASE
   Following an arrest for solicitation of prostitution under
Neb. Rev. Stat. § 28-801.01 (Reissue 2016), Vincent Valentino
unsuccessfully applied to participate in the Lancaster County
pretrial diversion program. An administrative review hearing
                              - 98 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                       STATE v. VALENTINO
                         Cite as 305 Neb. 96

was held, and the hearing officer concluded that because the
offense was not listed as an eligible offense, no error had
occurred. Valentino moved to suppress evidence and statements
and served subpoenas duces tecum alleging that he had been
selectively prosecuted based on his gender. Valentino claimed
that the sting operation in which he was arrested was con-
ducted pursuant to the National Johns Suppression Initiative
(NJSI) and that it impermissibly targeted men for prosecution.
The county court for Lancaster County quashed the subpoe-
nas and denied his motions to suppress and to dismiss. The
county court ultimately convicted Valentino of the offense.
Valentino appealed to the Lancaster County District Court,
which affirmed the judgment of the county court. Valentino
appealed, claiming he was selectively prosecuted and excluded
from the pretrial diversion program because of his gender.
We affirm.
                    STATEMENT OF FACTS
    In 2015, the Lincoln Police Department (LPD) began par-
ticipating in the NJSI in partnership with the Cook County,
Illinois, Sheriff’s Department. Press releases from the Cook
County sheriff stated that the NJSI “highlight[s] the role of
sex buyers — or ‘johns’ — as perpetrators in this violent and
exploitive industry” and had resulted in the arrests of more
than 5,800 people across 22 states. Following a sting operation,
the LPD arrested six men, including Valentino, for soliciting
prostitution; four women for prostitution; and several other
individuals for other crimes.
    The State charged Valentino with one count of solicitation of
prostitution in violation of § 28-801.01, a Class I misdemeanor.
Valentino applied to participate in a pretrial diversion program
run by the Lancaster County Attorney’s office. His application
was denied, and Valentino sought administrative review.
Administrative Review.
   An administrative review hearing was held regarding pretrial
diversion on November 17, 2016. The two issues up for review
                               - 99 -
          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                       STATE v. VALENTINO
                         Cite as 305 Neb. 96

were: (1) whether the offense of solicitation of prostitution
in violation of § 28-801.01 is an eligible offense under the
“Lancaster County Adult Diversion Program Eligibility Criteria
and Program Conditions” (the Diversion Guidelines) and, (2)
if so, whether Valentino was otherwise eligible to participate
in pretrial diversion. A local attorney was appointed as the
hearing officer to review the county attorney’s decision. The
hearing officer issued an opinion in which he concluded that
under the Diversion Guidelines, the crime of solicitation was
not enumerated as eligible, ineligible, or eligible on a case-by-
case basis for pretrial diversion, and that therefore, the decision
to deny pretrial diversion was not arbitrary and capricious. The
opinion concluded that Valentino’s charge was ineligible and
that it was unnecessary to address eligibility further.
Motion to Suppress for Selective Prosecution
and Subpoenas Duces Tecum.
   Valentino served a subpoena duces tecum on a deputy
county attorney and Ben Miller, a sergeant with the LPD. The
subpoenas requested documents regarding Valentino’s request
for the pretrial diversion program. The State moved to quash
the subpoenas for various reasons, including that the requests
were unduly burdensome and required the witnesses to pro-
duce documents which were not relevant to Valentino’s guilt or
innocence and were not in its custody.
   Valentino moved to suppress, alleging, inter alia, that he
had been unconstitutionally and selectively prosecuted based
upon his gender. In support of his claim, Valentino alleged
that LPD’s sting operation impermissibly targeted men for
prosecution.
   At a hearing on the State’s motions to quash and Valentino’s
motion to suppress based on selective prosecution, the county
court allowed Valentino to question both the deputy county
attorney and Sergeant Miller but ultimately granted the motions
to quash.
   Sergeant Miller testified that the purpose of the NJSI is
to “focus on people typically referred to as Johns, who are
                              - 100 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                       STATE v. VALENTINO
                         Cite as 305 Neb. 96

looking to purchase women for sale for sexual purposes.” He
testified that he had never encountered a female soliciting a
prostitute and that he had never arrested a woman for solicita-
tion of prostitution. He testified that advertisements created by
the LPD do not invite gender-specific responses and that the
LPD cannot control the gender of who responds to its adver-
tisements. Sergeant Miller testified that in addition to stings
aimed at buyers, the LPD also conducts prostitution stings in
which prostitutes, including women, are arrested and referred
for prosecution.
   The deputy county attorney testified that he was unaware
whether a female had been prosecuted for solicitation but
stated that “[i]f [the police] arrest a female for it, we’d pros-
ecute the female.” He stated that he was unaware of a case
where a person was denied pretrial diversion based upon their
gender.
   The court found that based on the evidence, Valentino did
not show he was selectively arrested and prosecuted. With
regard to Valentino’s claims that he was entitled to pretrial
diversion, the court concluded that the offense of solicitation
of prostitution was not an eligible offense for pretrial diversion
under the Diversion Guidelines.
   Valentino subsequently appealed the county court’s decision
denying his motion to suppress; however, his appeal was dis-
missed for lack of jurisdiction—first by the district court and
then by the Nebraska Court of Appeals. Valentino then filed
a petition for further review, which we denied on March 27,
2018, in case No. A-17-1305.
County Court Trial.
   After a stipulated bench trial held on August 29, 2018, the
county court found Valentino guilty. It ordered him to pay a
fine of $500. Valentino appealed to the district court. Valentino
filed a statement of errors, claiming, inter alia, that the county
court erroneously denied his various claims and motions
relating to gender-based discrimination, including those con-
nected to pretrial diversion, evidence, and “[Valentino’s]
                              - 101 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                       STATE v. VALENTINO
                         Cite as 305 Neb. 96

motion to dismiss for selective investigation/prosecution
based upon gender.”
District Court Appeal.
   On appeal to the district court, Valentino claimed that the
Lancaster County Attorney and the LPD selectively arrested
and prosecuted him based on his gender and that the Lancaster
County Attorney did not let him participate in pretrial diver-
sion due to his gender. Following a hearing, the district court
found that law enforcement did not exercise its discretion in
a discriminatory manner and affirmed the judgment of the
county court. In reaching its conclusion, the district court
reasoned that Valentino had not presented evidence that a
similarly situated person was not prosecuted, nor had he pre-
sented evidence of clear and intentional discrimination. The
district court assumed without deciding that the decision of the
county attorney regarding pretrial diversion was reviewable
and concluded that Valentino had not shown that the county
attorney wrongly deprived him of an opportunity for admin-
istrative review or written reasons for denial of admission to
the pretrial diversion program. The district court agreed with
the hearing officer that the record showed that the application
for pretrial diversion was denied because “solicitation, like
prostitution, was not an eligible offense” and not because of
Valentino’s gender.
   Valentino appeals.
                   ASSIGNMENTS OF ERROR
   Valentino claims, restated and consolidated, that the dis-
trict court sitting as an appellate court erred when it failed to
reverse various orders of the county court and affirmed his
conviction. With respect to the pretrial diversion, Valentino
claims that the county attorney improperly failed to give rea-
sons for denying him participation in the pretrial diversion
program and that the denial was motivated by selective pros-
ecution. With respect to the trial in county court, Valentino
claims that the county court erred when it denied his motion
                              - 102 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                       STATE v. VALENTINO
                         Cite as 305 Neb. 96

to suppress, granted the State’s motions to quash subpoenas,
and rejected his claims that the prosecution was motivated by
selective prosecution. The rejection of these claims form the
basis of Valentino’s appeal.
                   STANDARDS OF REVIEW
   [1-5] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
or abuse of discretion. State v. Thalken, 299 Neb. 857, 911
N.W.2d 562 (2018); State v. Avey, 288 Neb. 233, 846 N.W.2d
662 (2014). Both the district court and a higher appellate
court generally review appeals from the county court for error
appearing on the record. Id. When reviewing a judgment for
errors appearing on the record, an appellate court’s inquiry is
whether the decision conforms to the law, is supported by com-
petent evidence, and is neither arbitrary, capricious, nor unrea-
sonable. Id. But we independently review questions of law in
appeals from the county court. Id. When deciding appeals from
criminal convictions in county court, we apply the same stan-
dards of review that we apply to decide appeals from criminal
convictions in district court. Id.
   [6] On a defendant’s motion to dismiss based on dis-
criminatory or selective prosecution, the State is entitled to
have all its relevant evidence accepted or treated as true,
every controverted fact as favorably resolved for the State,
and every beneficial inference reasonably deducible from the
evidence. See State v. Katzman, 228 Neb. 851, 424 N.W.2d
852 (1988).
                          ANALYSIS
   In this case, Valentino generally contends that he was
selectively prosecuted for soliciting prostitution. In particu-
lar, he asserts that the decision by law enforcement to target
and prosecute male buyers of sex was selective prosecution
because it was an unlawful, deliberate discrimination based on
a suspect class, namely the arrestee’s gender. Valentino also
                              - 103 -
          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                       STATE v. VALENTINO
                         Cite as 305 Neb. 96

asserts that a policy of denying pretrial diversion to buyers
was impermissible gender-based discrimination.
   With respect to pretrial diversion, Valentino contends that
the county attorney improperly failed to give reasons for
denying him participation in the pretrial diversion program.
We find no impropriety. We refer to Clayton v. Lacey, 256
Neb. 282, 589 N.W.2d 529 (1999), which primarily involved
a question of appealability. Although in Clayton we disap-
proved of the county attorney’s failure to give a reason for
denying participation in pretrial diversion, we ultimately dis-
missed the challenge, because the defendant had pursued an
unacceptable form of action. The crime for which the defend­
ant in Clayton was prosecuted was specifically identified on
the list of crimes eligible for pretrial diversion. In contrast,
the crime of soliciting with which Valentino was charged was
not listed as an eligible offense, and thus our disapproval of
providing no reasons for denial in Clayton is not warranted in
this case.
   [7] The State’s decision to deny an arrestee admission into a
pretrial diversion program is a decision to prosecute and may
be attacked by a claim of selective prosecution. We need not
separately analyze Valentino’s pretrial diversion selective pros-
ecution contention, because it is encompassed by Valentino’s
claim that he was selectively brought to trial. See Clayton v.
Lacey, supra. Thus, Valentino’s claims of selective prosecu-
tion with regard to pretrial diversion and trial are but a single
claim that he was selectively prosecuted based on his gender.
As explained below, we conclude that Valentino did not prof-
fer sufficient evidence of selective prosecution to entitle him
to relief.
   [8] It is important to underscore that the general rule regard-
ing prosecutorial discretion in law enforcement is that unless
there is proof that a particular prosecution was motivated by
an unjustifiable standard based, for example, on race, religion,
nationality, sex, or political affiliation, the use of such discre-
tion does not violate constitutional protections. See, State v.
                             - 104 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                      STATE v. VALENTINO
                        Cite as 305 Neb. 96

Katzman, supra; Salaiscooper v. Dist. Ct., 117 Nev. 892, 34
P.3d 509 (2001).
   [9-11] To establish a selective prosecution claim, it has
been generally held that a defendant must demonstrate that the
prosecution “had a discriminatory effect and that it was moti-
vated by a discriminatory purpose.” Wayte v. United States,
470 U.S. 598, 608, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985).
As in the present case, this requires the defendant to establish
(1) that similarly situated individuals of a different gender
were not prosecuted and (2) that the decision to prosecute
was “invidious or in bad faith,” based upon impermissible
considerations or the desire to prevent the defendant’s exercise
of his or her constitutional rights. State v. Katzman, 228 Neb.
851, 855, 424 N.W.2d 852, 856 (1988). See United States v.
Armstrong, 517 U.S. 456, 116 S. Ct. 1480, 134 L. Ed. 2d 687
(1996). It has been observed that the trial court has the remedy
of dismissing the charge against the defendant if such inten-
tional and purposeful discriminatory enforcement is shown.
City of Minneapolis v. Buschette, 307 Minn. 60, 240 N.W.2d
500 (1976).
   With respect to obtaining discovery in support of a selective
prosecution claim, a defendant must produce “some evidence”
making a “credible showing” of both discriminatory effect and
discriminatory intent. United States v. Armstrong, 517 U.S.
at 470. Just as the standard for ultimately proving a selective
prosecution claim is a rigorous one, so, too, is the evidentiary
threshold for obtaining discovery from the State or government
to support such a claim. United States v. Armstrong, supra. The
U.S. Supreme Court has observed:
      Our cases delineating the necessary elements to prove a
      claim of selective prosecution have taken great pains to
      explain that the standard is a demanding one. These cases
      afford a “background presumption” . . . that the showing
      necessary to obtain discovery should itself be a signifi-
      cant barrier to the litigation of insubstantial claims.
Id., 517 U.S. at 463-64 (citation omitted).
                              - 105 -
          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                       STATE v. VALENTINO
                         Cite as 305 Neb. 96

   Turning to Valentino’s arguments on appeal, his claims
are predicated on the view that only men were prosecuted as
buyers of sex and that such prosecution was driven by bad
faith. However, the record does not support Valentino’s view.
Sergeant Miller testified that he had not arrested a woman
for solicitation of prostitution, but that he had also never
encountered a woman as a buyer. The deputy county attorney
testified that the Lancaster County Attorney will “prosecute
who shows up on our doorstep” and would prosecute women
charged with soliciting a prostitute. It has been observed and
we agree that “[t]he police do not intentionally discriminate
against one gender by the absence of attempts to detect and
apprehend offenders of the other gender, when no evidence is
presented that offenders of the other gender are engaging in
similar criminal behavior.” Branche v. Com., 25 Va. App. 480,
489, 489 S.E.2d 692, 696-97 (1997). Thus, Valentino did not
show that similarly situated women were not prosecuted for
solicitation as buyers or that the prosecutorial decision had a
discriminatory effect. See, United States v. Armstrong, supra;
State v. Katzman, supra.
   To the extent that Valentino asserts that solicitation is gender
specific and impermissible, a plain reading of the statute is to
the contrary. State v. Stanko, 304 Neb. 675, 936 N.W.2d 353
(2019) (noting that in absence of anything indicating other-
wise, statutory language is to be given its plain and ordinary
meaning). Section 28-801.01 regarding solicitation provides as
follows: “(1) Any person who solicits another person not his
or her spouse to perform any act of sexual contact or sexual
penetration, as those terms are defined in section 28-318, in
exchange for money or other thing of value, commits solicita-
tion of prostitution.” (Emphasis supplied.)
   Neb. Rev. Stat. § 28-801 (Reissue 2016) regarding prostitu-
tion provides in relevant part as follows:
         (1) Except as provided in subsection (5) of this section,
      any person who performs, offers, or agrees to perform
      any act of sexual contact or sexual penetration, as those
                              - 106 -
          Nebraska Supreme Court Advance Sheets
                   305 Nebraska Reports
                       STATE v. VALENTINO
                         Cite as 305 Neb. 96

       terms are defined in section 28-318, with any person not
       his or her spouse, in exchange for money or other thing
       of value, commits prostitution.
(Emphasis supplied.)
    In Nebraska, solicitation and prostitution are separate
­gender-neutral offenses, meaning they can be committed by
 either men or women. In particular, as can be seen in the
 foregoing gender-neutral statutory language regarding solici-
 tation and prostitution, the defendant is referred to as “any
 person” and “his or her.” Compare City of Minneapolis v.
 Buschette, 307 Minn. 60, 240 N.W.2d 500 (1976) (referring in
 footnote to historical prostitution statutes which applied only
 to women).
    With respect to bad faith, Valentino has not shown that the
 State acted with a discriminatory purpose with respect to the
 decision to prosecute. A court will not presume a discrimina-
 tory purpose. See State v. Katzman, 228 Neb. 851, 424 N.W.2d
 852 (1988).
    The record shows that Valentino’s application for pretrial
 diversion was denied because the county attorney’s office
 follows written eligibility Diversion Guidelines under which
 neither solicitation nor, incidentally, prostitution is identified
 as an eligible offense. Other courts have found, and we agree,
 that where a government distinguishes between buyers and
 sellers of sex and offers pretrial diversion to one group but
 not the other, the deterrence of crime is a valid, gender-neutral
 motivation for the differential policy. See, e.g., Salaiscooper v.
 Dist. Ct., 117 Nev. 892, 34 P.3d 509 (2001). The record shows
 that the NJSI operation was designed to reduce prostitution—
 a valid motivation—and targeted buyers of prostitution and
 that it could have resulted in arrests of either men or women
 as buyers. Valentino has not made an adequate showing that
 the denial of his request for participation in a pretrial diver-
 sion program or that the prosecutor’s decision to prosecute
 him was based on an impermissibly discriminatory reason.
 Furthermore, the rulings on motions about which Valentino
                             - 107 -
         Nebraska Supreme Court Advance Sheets
                  305 Nebraska Reports
                      STATE v. VALENTINO
                        Cite as 305 Neb. 96

complains are encompassed by the foregoing analysis and were
not erroneous. Neither the county court nor the district court
erred when it found that Valentino had not been selectively
prosecuted based upon his gender.
                        CONCLUSION
   A government’s decision to deny pretrial diversion is a deci-
sion to prosecute, and we find no merit to Valentino’s claim
that he was selectively prosecuted for solicitation based on
gender. The order of the district court, which affirmed the
county court’s rulings and Valentino’s conviction for solicita-
tion in the county court, is affirmed.
                                                   Affirmed.
   Heavican, C.J., not participating.
