State v. Fleming

State of NebraSka , appellee , v.
keNNeth C. flemiNg , appellaNt.
792 N.W.2d 147
Filed December 23, 2010. 	No. S-10-120.
1. Trial: Witnesses: Testimony: Appeal and Error. An appellate court reviews
a trial court’s allowance of leading questions for an abuse of discretion. It is
usual and proper for the trial court to permit leading questions in conducting the
examination of a witness who is immature; unaccustomed to court proceedings;
inexperienced, agitated, terrified, or embarrassed while on the stand; and lacking
in comprehension of the questions asked.
2. Judges: Recusal. A motion to disqualify a trial judge on account of prejudice is
addressed to the sound discretion of the trial court.
3. Judges: Recusal: Presumptions. A defendant seeking to disqualify a judge on
the basis of bias bears the heavy burden of overcoming the presumption of judi-
cial impartiality.
4. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: In reviewing a
criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favorably to the
State, is sufficient to support the conviction.
5. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
6. Judgments: Words and Phrases. 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.
7. Effectiveness of Counsel: Records: Appeal and Error. A claim of ineffective
assistance of counsel need not be dismissed merely because it is made on direct
appeal. The determining factor is whether the record is sufficient to adequately
review the question. If the matter has not been raised or ruled on at the trial court
level and requires an evidentiary hearing, an appellate court will not address the
matter on direct appeal.
8. Criminal Law: Indictments and Informations: Time. A criminal information
is not insufficient with respect to a time allegation so long as it alleges a distinct
beginning and an equally clear end within which the crimes are alleged to have
been committed.
9. Sentences. The appropriateness of a sentence is necessarily a subjective judgment
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.
10. ____. When imposing a sentence, a sentencing judge should consider the defend-
ant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding conduct, and (6)
STATe v. FlemINg 	967
Cite as 280 Neb. 967
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

motivation for the offense, as well as (7) the nature of the offense, and (8) the
amount of violence involved in the commission of the crime.
Appeal from the District Court for Buffalo County: JohN p.
iCeNogle, Judge. Affirmed.
Nicole m. mailahn, of Jacobsen, Orr, Nelson, lindstrom &
Holbrook, P.C., l.l.O., and, on brief, D. Brandon Brinegar, of
Ross, Schroeder & george, l.l.C., for appellant.
Jon Bruning, Attorney general, and Kimberly A. Klein for
appellee.
heaviCaN, C.J., C oNNolly, gerrard, StephaN, mCC ormaCk,
and miller-lermaN, JJ.
heaviCaN, C.J.
INTRODUCTION
Defendant, Kenneth C. Fleming, was convicted of two counts
of first degree sexual assault of a child. He was sentenced to 20
to 40 years’ imprisonment on each count, with the sentences to
run consecutively. Fleming appeals. We affirm.
FACTUAl BACKgROUND
The convictions in this case arise from sexual assault alle-
gations made against Fleming by his stepdaughter, F.K., and
his stepniece, A.S. Fleming was married to T.F. in 2006. At
the time of the marriage, T.F. had three children from previ-
ous relationships, including F.K. A fourth child was born to
Fleming and T.F. during the marriage. In march 2006, the fam-
ily moved from Holdrege, Nebraska, to Kearney, Nebraska, due
to a job opportunity for Fleming. In Kearney, the family lived
in several residences, including two trailer homes and a single-
family home. For nearly all the time at issue, the family lived
at this latter location.
At the time of the move to Kearney, T.F. did not work out-
side of the home. However, in 2008, T.F. did obtain employ-
ment outside of the home. Fleming worked during the day, and
T.F. worked at night. While T.F. was at work, Fleming stayed
home with the children.
968 	280 NeBRASKA RePORTS

The single-family home in Kearney was usually filled with
people. Besides the Flemings and their children, two fam-
ily friends spent some time living in the home, followed by
the family of Fleming’s cousin, which included two children.
Beyond those persons living in the home, the children of T.F.’s
brother would occasionally visit the family in Kearney, and
T.F. had a second job babysitting her nieces and nephews from
that family. moreover, when the family had lived in a prior
residence in Kearney, Fleming’s sister had lived with them for
a time.
In November 2008, T.F. and the children moved to North
Platte, Nebraska. Fleming remained in Kearney. In January
2009, F.K. reported to T.F. that Fleming had sexually assaulted
her on various occasions while the family lived in Kearney.
F.K. also stated that Fleming had sexually assaulted A.S. T.F.
then contacted A.S. and A.S.’ mother and father and eventually
confirmed that Fleming had also assaulted A.S.
T.F. contacted North Platte law enforcement. eventually,
it was determined that the alleged assaults took place when
F.K. lived in Kearney. Kearney law enforcement then initi-
ated an investigation, which ended with the charges filed in
this case.
At trial, both F.K. and A.S. testified that Fleming penetrated
their vaginal areas with his finger, his tongue, and his penis
and that he forced them to perform oral sex on him. Fleming
testified and denied the allegations. The theory of his defense
was that F.K. and A.S. made up their stories at the instigation
of T.F.
ASSIgNmeNTS OF eRROR
On appeal, Fleming assigns that (1) trial counsel was inef-
fective in several particulars; (2) the State’s information was
insufficient, in violation of his due process rights; (3) the trial
court erred in allowing the State’s expert witness to testify
regarding the credibility of the alleged victims and in over-
ruling Fleming’s motion for mistrial on this basis; (4) the trial
court erred in allowing the State to use leading questions and
photographs to elicit testimony regarding the alleged assaults;
(5) the trial court erred in conducting competency examinations
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of the two alleged victims in the presence of the jury; (6) the
trial court erred in overruling Fleming’s motion to recuse; (7)
the trial court erred in failing to grant Fleming’s motions for
directed verdict; (8) there was insufficient evidence to support
his conviction; and (9) his sentences were excessive.
STANDARD OF ReVIeW
[1] We review a trial court’s allowance of leading questions
for an abuse of discretion.1 It is usual and proper for the trial
court to permit leading questions in conducting the examina-
tion of a witness who is immature; unaccustomed to court
proceedings; inexperienced, agitated, terrified, or embarrassed
while on the stand; and lacking in comprehension of the ques-
tions asked.2
[2,3] A motion to disqualify a trial judge on account of prej-
udice is addressed to the sound discretion of the trial court.3
A defendant seeking to disqualify a judge on the basis of bias
bears the heavy burden of overcoming the presumption of judi-
cial impartiality.4
[4] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late 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, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction.5
[5,6] A sentence imposed within statutory limits will not be
disturbed on appeal absent an abuse of discretion by the trial
1 See State v. Brown, 220 Neb. 849, 374 N.W.2d 28 (1985).
2 Id.
3 State v. Harris, 274 Neb. 40, 735 N.W.2d 774 (2007).
4 State v. Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
5 State v. France, 279 Neb. 49, 776 N.W.2d 510 (2009).
970 	280 NeBRASKA RePORTS

court.6 An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.7
ANAlYSIS
Ineffective Assistance of Counsel.
In his first assignment of error, Fleming assigns that his trial
counsel was ineffective in that he (1) did not make himself
available to Fleming, nor did he sufficiently communicate with
Fleming; (2) refused to “gather and/or use” evidence and wit-
nesses as directed by Fleming; (3) was not adequately prepared
to use witnesses’ inconsistent statements to impeach their live
testimony; (4) refused to adequately address the motive of F.K.,
A.S., T.F., and others; (5) failed to adequately cross-examine
F.K. and A.S.; (6) failed to file a motion to quash informa-
tion; and (7) failed to file a motion to withdraw as counsel
after Fleming filed complaint against him with the Counsel
for Discipline.
[7] A claim of ineffective assistance of counsel need not
be dismissed merely because it is made on direct appeal. The
determining factor is whether the record is sufficient to ade-
quately review the question. If the matter has not been raised
or ruled on at the trial court level and requires an evidentiary
hearing, an appellate court will not address the matter on
direct appeal.8
In this case, both Fleming and the State agree that Fleming’s
claims are not cognizable on direct appeal. And we agree, with
one exception, that we lack a record to determine whether trial
counsel’s representation was ineffective. We do, however, con-
clude that we can and will review Fleming’s assertions with
regard to the sufficiency of the information filed against him.
We otherwise decline to reach on direct appeal Fleming’s argu-
ments regarding the ineffectiveness of his trial counsel.
6 State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
7 Id.
8 See State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).
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Sufficiency of Information.
In his second assignment of error, Fleming argues that the
information against him was insufficient as it alleged the acts
occurred between June 1 and November 25, 2008. Fleming
argues that this time period is so broad as to violate his due
process rights.
Fleming concedes that this court has held in State v.
Martinez9 that “where an information provides a timeframe
which has a distinct beginning and an equally clear end
within which the crimes are alleged to have been committed,
it is [constitutionally] sufficient.” However, he argues that
the “‘blanket bar’” on subsequent prosecutions during that
same time period does not meet the goal stated in Martinez
of “balancing the profound tension between the constitutional
rights of one accused of child molestation against the State’s
interest in protecting those victims who need the most protec-
tion.”10 Rather, Fleming argues that “[i]t must be little com-
fort to defendants accused of first degree sexual assault of a
child to know the ‘blanket bar’ will shield them from future
prosecutions, when the current law makes it easier for the
State to win a conviction on the charge they currently face.”11
Fleming urges us to reject the rule set forth in Martinez and
instead adopt a rule that requires a case-by-case examination
of “whether an indictment is reasonably particular with respect
to the time of the offense.”12
As an initial matter, the State argues that Fleming failed to
file a motion to quash or otherwise object to the information
and thus has waived any objection that he might have. A review
of the record supports this. However, Fleming also alleges that
his trial counsel was ineffective in this particular. Thus, as was
noted above, we will address this issue on direct appeal.
9 See State v. Martinez, 250 Neb. 597, 599, 550 N.W.2d 655, 657 (1996).
10 See id. at 601, 550 N.W.2d at 658.
11 Brief for appellant at 26-27.
12 See State v. Baldonado, 124 N.m. 745, 751, 955 P.2d 214, 220 (N.m. App.
1998).
972 	280 NeBRASKA RePORTS

[8] This court, as recently as January of this year, reiterated
the rule it set out in Martinez,13 namely, that an information is
not insufficient with respect to a time allegation so long as it
alleges a “distinct beginning and an equally clear end within
which the crimes are alleged to have been committed.”14 We
noted that to hold otherwise “would impose an impossible bur-
den on a child sexual assault victim where there are allegations
of multiple assaults over a lengthy timeframe.”15
Our reasoning in Martinez was sound, and we decline to
revisit it. Fleming’s second assignment of error is therefore
without merit.
Testimony of Barbara Sturgis, Ph.D.
In his third assignment of error, Fleming argues that the dis-
trict court erred in admitting the testimony of Barbara Sturgis,
Ph.D., and in not granting his motion for mistrial as a result of
Sturgis’ testimony.
The purpose of Sturgis’ testimony was to provide for the jury
background concerning child victims and how they differ from
adult victims. Fleming argues Sturgis’ testimony that “kids can
disclose with detail when they’re disclosing what’s happened to
them” improperly bolstered the credibility of F.K. and A.S.
This court has previously approved of the use of the type
of testimony given by Sturgis.16 At that time, we noted that
this type of evidence was helpful because “‘[f]ew jurors have
sufficient familiarity with child sexual abuse to understand the
dynamics of a sexually abusive relationship,’ and ‘the behavior
exhibited by sexually abused children is often contrary to what
most adults would expect.’”17
A reading of the entirety of Sturgis’ testimony calls Fleming’s
argument into question. Sturgis was asked whether children
could disclose with detail; she indicated they could, but that
13 State v. Martinez, supra note 9.
14 State v. Gibilisco, 279 Neb. 308, 317, 778 N.W.2d 106, 113 (2010) (citing
State v. Martinez, supra note 9).
15 Id. at 318, 778 N.W.2d at 113-14.
16 State v. Roenfeldt, 241 Neb. 30, 486 N.W.2d 197 (1992).
17 Id. at 39, 486 N.W.2d at 204.
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it “depends on what’s happened to them.” When asked to give
an example, Sturgis stated that “kids can disclose with detail
when they’re disclosing what’s happened to them.” She then
went on to testify that while children can disclose with detail,
a child is less likely to tell all of the details to one person and
instead will “talk about some of the things at some time and
other of the things at others.” In addition, Sturgis testified that
children are capable of lying and that all of her observations
were dependent on the child and his or her capabilities.
This case is distinguishable from State v. Doan,18 a Nebraska
Court of Appeals case relied upon by Fleming. In that case,
when asked whether it was unusual for a child to not report
an incident immediately or to not be visibly upset by report-
ing sexual abuse, the witness testified to the history she
had obtained from the victim, then indicated that she evalu-
ated whether she believed the victim. The witness concluded
that she had received “‘validation’” of the child’s account
of abuse.19
Unlike Doan, in which the witness had interviewed the
alleged victim and made a determination of whether she
believed the victim, Sturgis acknowledged that she had never
interviewed F.K. or A.S. and that she had not even viewed their
interviews with law enforcement. Nothing in Sturgis’ testimony
was directed at these particular witnesses, but, rather, was a
discussion of child witnesses in general. At no point did Sturgis
opine on whether F.K. or A.S. had been sexually assaulted, nor
did she opine on whether she believed the allegations made by
F.K. and A.S.
The district court did not err in admitting Sturgis’ testimony
and denying Fleming’s motion for mistrial. Fleming’s third
assignment of error is without merit.
Use of Leading Questions and Photographs.
In his fourth assignment of error, Fleming contends that the
district court erred in allowing the use of leading questions and
photographs during F.K.’s testimony.
18 State v. Doan, 1 Neb. App. 484, 498 N.W.2d 804 (1993).
19 Id. at 488, 498 N.W.2d at 807.
974 	280 NeBRASKA RePORTS

While acknowledging the discretion afforded to the district
court in this matter, Fleming argues that such discretion was
abused in this case. In particular, Fleming argues that “[t]he
trial court’s decision to allow [F.K.] to describe and identify
the rooms where the alleged assault may have occurred pre-
emptively struck down one of [Fleming’s] means for attacking
her credibility.”20
A review of the record, however, demonstrates that the dis-
trict court did not abuse its discretion. F.K. was just 7 years
old at the time of trial. Over the past few years, F.K. had
lived in at least five residences. And over those years there
was, as the State puts it, “a veritable legion of other rela-
tives and/or friends living with them”21 at various times. The
leading questions asked, and the photographs shown, were
designed to help F.K. focus on the homes where the alleged
abuse took place. None of the leading questions related to the
offenses themselves.
The district court did not abuse its discretion in allowing the
use of leading questions and photographs during F.K.’s testi-
mony. Fleming’s fourth assignment of error is without merit.
Competence Hearing.
In his fifth assignment of error, Fleming asserts, without
authority, that the district court erred in conducting F.K.’s
and A.S.’ competence examinations before the jury. The State
argues that there was no error, as child witnesses are presumed
competent,22 and there is no requirement that such hearings be
held out of the presence of the jury.23
This issue has been considered in several jurisdictions. For
example, the Pennsylvania Supreme Court has adopted a per
se rule that child witnesses are to be examined for competence
outside the presence of the jury.24 The court noted that
20 Brief for appellant at 34.
21 Brief for appellee at 9.
22 See Neb. Rev. Stat. § 27-601 (Reissue 2008).
23 See Neb. Rev. Stat. § 27-104 (Reissue 2008).
24 Com. v. Washington, 554 Pa. 559, 722 A.2d 643 (1998).
STATe v. FlemINg 	975
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[e]ven with a cautionary instruction . . . permitting the
competency proceedings to take place in the presence of
the jury inevitably permeates into the veracity determina-
tion assigned exclusively to the jury. Particularly in cases
such as this where credibility is the central issue, the
likely impact of conducting the competency proceedings
in the presence of the jury cannot be diminished.25
The Colorado Supreme Court specifically rejected this per
se rule in People v. Wittrein.26 Instead, that court concluded that
while it was
the better approach [to examine outside the presence of
the jury], any prejudice . . . does not rise to the level of
reversible error. The prosecutor asked [the child victim]
simple questions that directly related to her ability to be
truthful and to relate facts to the jury. The jury was not
told the purpose of the testimony and was excused before
the judge ruled on . . . competency.27
Similarly, the New mexico Court of Appeals noted in State
v. Manlove28 that it was not error for the trial court judge to
inquire into the competence of a child witness in the presence
of the jury. The Manlove court noted that such decisions were
in the sound discretion of the trial court, though the court did
“feel that generally the better practice would be to conduct this
examination outside the presence of the jury.”29
Still other jurisdictions have concluded that it was not error,
or in some instances was even preferable, to have the compe-
tency proceedings take place in the presence of the jury. These
jurisdictions argue that this type of questioning “assists the
25 Id. at 566, 722 A.2d at 647. But see Com. v. Delbridge, 771 A.2d 1 (Pa.
Super. 2001) (concluding that per se rule was inapplicable where credi-
bility and truthfulness not at issue).
26 People v. Wittrein, 221 P.3d 1076 (Colo. 2009).
27 Id. at 1081.
28 State v. Manlove, 79 N.m. 189, 441 P.2d 229 (N.m. App. 1968) (super-
seded by state evidence rule on other grounds as stated in State v. Heuglin,
130 N.m. 54, 16 P.3d 1113 (N.m. App. 2000)).
29 Id. at 193, 441 P.2d at 233. See, also, State v. Tandy, 401 S.W.2d 409 (mo.
1966).
976 	280 NeBRASKA RePORTS

jurors in evaluating independently the child’s qualifications as
a witness.”30 The Wisconsin Supreme Court has also noted that
where there was no objection and the jury was instructed that it
was the sole judge of the credibility of the witnesses, as well as
the weight and effect of the witnesses, it was not error to hold
proceedings in the presence of the jury.31
We believe that the best practice is for any hearings on the
competency of child witnesses to take place outside the pres-
ence of the jury. However, the failure of the trial court to do so
is not necessarily reversible error. Instead, an appellate court
must consider whether the defendant was prejudiced by the
trial court’s actions. And we decline to find reversible error in
this case.
We note that Fleming objected to F.K.’s examination taking
place in the presence of the jury, but did not make the same
objection when A.S. was later examined in the same manner.
In performing the examination, the district court judge asked
a number of general questions of the witnesses. During F.K.’s
examination, she was questioned in part as follows:
[Court] How are you today?
[F.K.] good. How are you?
Q Just fine. Can you tell me your name for the
record?
A [Witness provided first name for record.]
Q What is your last name?
A [Witness provided last name for record.]
. . . .
Q How old are you?
A I’m seven.
Q And what grade are you in in [sic] school?
A Second.
. . . .
30 Brown v. United States, 388 A.2d 451, 458 (D.C. 1978). See, also, The
State v. Orlando, 115 Conn. 672, 163 A. 256 (1932); Schamroth v. State,
84 ga. App. 580, 66 S.e.2d 413 (1951); Ramer v. State, 40 Wis. 2d 79,
161 N.W.2d 209 (1968). Cf. State v. Butler, 27 N.J. 560, 143 A.2d 530
(1958) (applying same reasoning for potentially insane witness).
31 Collier v. State, 30 Wis. 2d 101, 140 N.W.2d 252 (1966).
STATe v. FlemINg 	977
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Q You understand that you’re here today to provide
some testimony or tell us some things that happened; is
that right?
A Uh-huh.
Q Do you know what a lie is?
A Yeah.
Q Can you tell me?
A When you say something happened but it really
didn’t.
Q And if people tell lies, do anybody — does anything
happen to them?
A People don’t believe them for a long time.
Q For a long time?
A Uh-huh.
. . . .
Q Now today you’re here and we’re going to — or the
attorneys are going to ask you some questions, and can
you promise to me that you will tell the truth?
A Uh-huh.
Q And do you understand that if you don’t, that you
can get into trouble?
A Uh-huh.
Similar questions were asked and answered during the court’s
examination of A.S. At the conclusion of each witness’ exami-
nation, the district court made no affirmative, explicit finding
of competence, but simply allowed counsel to begin direct
examination. We note also that neither F.K. nor A.S. were other-
wise placed under oath when testifying; thus, the examination
by the court essentially substituted as their oaths.
In addition, the jury was instructed by the district court
judge as follows: “I am not permitted to comment on the evi-
dence, and I have not intentionally done so. If it appears to you
that I have commented on the evidence, during either the trial
or the giving of these instructions, you must disregard such
comment entirely.” The jury was also instructed that it was “the
sole judge[] of the credibility of the witnesses and the weight
to be given to their testimony.”
For the reasons noted above, we conclude that the district
court did not err in allowing the witnesses to be examined for
978 	280 NeBRASKA RePORTS

competency in the presence of the jury. As such, Fleming’s
fifth assignment of error is without merit.
Recusal of Trial Court Judge.
In his sixth assignment of error, Fleming contends that the
district court judge should have recused himself. The basis for
the recusal request is that the judge “conducted himself in a
biased and prejudice[d] manner against [Fleming].”
From a review of the briefs and argument, it appears
that Fleming requested recusal because certain rulings went
against him at trial. After a complete reading of the record
in this case, however, it is clear that while the district court
judge ruled against Fleming, he also made several rulings in
Fleming’s favor. Other than essentially complaining that the
district court judge did not like him, Fleming points to nothing
that would require the district court judge to recuse himself.
The district court judge therefore did not abuse its discretion
by declining to do so. Fleming’s sixth assignment of error is
without merit.
Directed Verdicts and Sufficiency of Evidence.
In his seventh assignment of error, Fleming contends that the
district court erred in denying his motion for directed verdict
and his renewed motion for directed verdict. And in his eighth
assignment of error, Fleming contends there was insufficient
evidence to support his conviction. These two assignments of
error will be considered together.
Fleming was charged with two counts of first degree sexual
assault of a child.32 “A person commits sexual assault of a
child in the first degree if he or she subjects another person
under twelve years of age to sexual penetration and the actor is
at least nineteen years of age or older.”33 And Neb. Rev. Stat.
§ 28-318(6) (Reissue 2008) defines
[s]exual penetration [as] sexual intercourse in its ordinary
meaning, cunnilingus, fellatio, anal intercourse, or any
intrusion, however slight, of any part of the actor’s or
victim’s body or any object manipulated by the actor into
32 See Neb. Rev. Stat. § 28-319.01 (Reissue 2008).
33 § 28-319.01(1).
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the genital or anal openings of the victim’s body which
can be reasonably construed as being for nonmedical or
nonhealth purposes. Sexual penetration shall not require
emission of semen.
As an initial matter, the record shows that both F.K. and A.S.
were under 12 years of age at the time of the alleged sexual
assault and that Fleming was over the age of 19. As to the
alleged sexual assaults, F.K. testified that Fleming’s “weiner
and his hand and his mouth” touched her body and that “[m]y
private and my hand and my mouth” touched Fleming’s body.
F.K. stated that Fleming “put his private in my private.” F.K.
indicated that “[h]e would have me on the floor, and he would
put his private in my private and then start rubbing.” F.K. also
stated that she had to put her hand on his “private” and that
“[i]f the white stuff didn’t come out, he would want us to put
our mouth on it.” F.K. testified that she would do so. F.K. addi-
tionally testified that she witnessed Fleming “put his private
. . . in [A.S.’] private.”
In 	addition, 	A.S. 	testified 	that 	her 	“private 	touched
[Fleming’s] private” and also that her mouth touched Fleming’s
“private.” A.S. also stated that Fleming “told [her] to sit on
his face and he licked my private [with his tongue]” and that
she did not have any clothes on over her “private” when that
event occurred. In response to this testimony, A.S. stated that
Fleming’s tongue did not go “inside of [her] private.” A.S.
additionally testified that she witnessed F.K. “suck on it,” refer-
ring to Fleming’s “private.”
The above evidence, when viewed in a light most favor-
able to the State, clearly supports the denial of Fleming’s
motions for directed verdict and also supports the guilty ver-
dicts entered against Fleming for first degree sexual assault of
a child. Fleming’s seventh and eighth assignments of error are
without merit.
Sentences.
In his ninth, and final, assignment of error, Fleming asserts
that the sentences imposed upon him were excessive.
[9,10] The appropriateness of a sentence is necessarily
a subjective judgment and includes the sentencing judge’s
980 	280 NeBRASKA RePORTS

observation of the defendant’s demeanor and attitude and all
the facts and circumstances surrounding the defendant’s life.34
When imposing a sentence, a sentencing judge should consider
the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal
record or record of law-abiding conduct, and (6) motivation
for the offense, as well as (7) the nature of the offense, and
(8) the amount of violence involved in the commission of
the crime.35
Fleming’s primary argument seems to be centered on the fol-
lowing statement of the district court: “Although . . . Fleming
— and I understand your disagreement with whether you did
anything wrong, the system, the jury disagrees with you. And
you need to be and will be sentenced pursuant to what the jury
determined occurred as opposed to what you think occurred.”
Fleming argues that this statement shows the district court
sentenced him because of Fleming’s “audacity in maintaining
his innocence.”36
We do not read the district court’s statement in that manner.
Rather, we read the district court’s statement as its recognition
that while Fleming continued to assert his innocence, the jury
disagreed and concluded that Fleming was guilty and that he
would be sentenced accordingly.
Fleming was convicted of two counts of first degree sexual
assault of a child, a Class IB felony,37 punishable by a mini-
mum of 20 years’ and a maximum of life imprisonment.38
Section 28-319.01(2) further provides a mandatory minimum
sentence of 15 years’ imprisonment. Fleming was sentenced
to 20 to 40 years’ imprisonment on each count, with sentences
to be served consecutively. These sentences were within statu-
tory limits.
34 State v. Epp, supra note 6.
35 Id.
36 Brief for appellant at 47.
37 See § 28-319.01(2).
38 See Neb. Rev. Stat. § 28-105 (Reissue 2008).
STATe v. FlemINg 	981
Cite as 280 Neb. 967

moreover, as is noted by the State, Fleming’s minimum sen-
tence is just 5 years more than the mandatory minimum for the
crimes for which he was convicted. Both F.K. and A.S. have
nightmares because of the abuse perpetrated by Fleming, as
well as continuing emotional problems. The sentences imposed
on Fleming were not excessive; the district court did not abuse
its discretion in so sentencing Fleming. Fleming’s final assign-
ment of error is without merit.
CONClUSION
The 	judgment 	and 	sentences 	of 	the 	district 	court 	are
affirmed.
affirmed.
Wright, J., not participating.
982 	280 NeBRASKA RePORTS