State v. Kass

of events and conclude that he killed Matsolonia because he
hated her enough to have attacked her before. I would reverse
the judgment and remand the cause for a new trial.
In closing, a trial court can avoid a retrial by requiring the
proponent of extrinsic acts evidence to show that its theory of
relevance does not depend on a propensity inference. A trial
court should not be hypnotized by the prosecutor’s sweeping
incantations of identity, intent, modus operandi, motive, and
absence of mistake. A trial court should adhere to rules we set
out in Sanchez and not assume that the evidence is relevant to
a catchall list of purposes. When the relevance is not clear, the
court should insist that the proponent explain why the evidence
will be necessary and set forth its chain of reasoning.
State of NebraSka , appellee , v.
DaviD M. kaSS, appellaNt.
799 N.W.2d 680
Filed July 15, 2011. 	No. S-10-315.
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional presents a question of law, which an appellate court resolves without regard
to how the issue was decided below.
2. Jury Instructions. Whether jury instructions are correct presents a question
of law.
3. Constitutional Law: Criminal Law. The First Amendment limits a state’s ability
to prosecute certain criminal offenses.
4. Constitutional Law: Presumptions. Except for a few well-recognized categories
of unprotected speech, a content-based restriction on speech is presumptively
invalid and subject to strict scrutiny.
5. Constitutional Law: Statutes: Proof. When a party does not claim that a chal-
lenged law has no valid application, a facial challenge must establish that a
substantial number of the law’s applications are unconstitutional in relation to its
legitimate sweep.
6. Constitutional Law: Statutes. If a statute is substantially overbroad, it invali-
dates all enforcement of the law.
7. Constitutional Law: Statutes: Standing. A party has standing to challenge
a statute as overbroad, even if unaffected by the part that punishes protected
speech, when the party claims that the statute will significantly compromise the
free speech rights of others not before the court.
8. Constitutional Law: Statutes. A statute is unconstitutionally overbroad and
thus offends the First Amendment if, in addition to forbidding speech or conduct
892 	281 NEbrASkA rEporTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

which is not constitutionally protected, it also prohibits the exercise of constitu-
tionally protected speech.
9. ____: ____. A court may invalidate a statute on its face only if its overbreadth is
“substantial,” i.e., when the statute is unconstitutional in a substantial portion of
cases to which it applies.
10. ____: ____. In considering a facial challenge to a law regulating speech, a court
will narrow its application when the language is readily susceptible to such
construction.
11. Statutes: Legislature: Intent. A statute is susceptible to a narrowing construc-
tion when the text or another source of legislative intent identifies a clear line that
a court can draw.
12. Jury Instructions: Appeal and Error. When a party assigns as error the failure
to give an unrequested jury instruction, an appellate court will review only for
plain error.
13. Appeal and Error. plain error will be noted only where an error is evident from
the record, prejudicially affects a substantial right of a litigant, and is of such a
nature that to leave it uncorrected would cause a miscarriage of justice or result
in damage to the integrity, reputation, and fairness of the judicial process.
14. Jury Instructions. When instructing the jury, it is proper for the court to describe
the offense in the language of the statute.
15. Jury Instructions: Proof: Appeal and Error. To establish reversible error from
a court’s refusal to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction is warranted by the evidence, and (3) the appellant was
prejudiced by the court’s refusal to give the tendered instruction.
16. Criminal Law: Entrapment: Words and Phrases. In Nebraska, entrapment is
an affirmative defense consisting of two elements: (1) the government induced
the defendant to commit the offense charged and (2) the defendant’s predisposi-
tion to commit the criminal act was such that the defendant was not otherwise
ready and willing to commit the offense.
17. Entrapment: Evidence: Proof. The burden of going forward with evidence of
government inducement is on the defendant. In assessing whether the defendant
has satisfied this burden, the initial duty of the court is to determine whether there
is sufficient evidence that the government has induced the defendant to commit a
crime. The court makes this determination as a matter of law, and the defendant’s
evidence of inducement need be only more than a scintilla to satisfy his or her
initial burden.
18. Entrapment: Evidence. A defendant need not present evidence of entrapment;
he or she can point to such evidence in the government’s case in chief or extract
it from the cross-examination of the government’s witnesses.
19. Entrapment: Evidence: Words and Phrases. Inducement can be any govern-
ment conduct creating a substantial risk that an otherwise law-abiding citi-
zen would commit an offense, including persuasion, fraudulent representation,
threats, coercive tactics, promise of reward, or pleas based on need, sympathy, or
friendship. Inducement requires something more than that a government agent or
informant suggested the crime and provided the occasion for it.
STATE v. kASS 	893
Cite as 281 Neb. 892

20. Entrapment: Words and Phrases. Inducement consists of an opportunity plus
something else, such as excessive pressure by the government upon the defend-
ant or the government’s taking advantage of an alternative, noncriminal type
of motive.
21. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
22. Judges. An abuse of discretion occurs when the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a substantial right and deny-
ing a just result in matters submitted for disposition.
23. Sentences. When imposing a sentence, a sentencing judge should consider the
defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and
cultural background, (5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and (8)
the violence involved in the commission of the crime.
24. ____. In imposing a sentence, the sentencing judge is not limited to any math-
ematically applied set of factors.
25. ____. 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.
Appeal from the District Court for Sarpy County: M ax
kelch, Judge. Affirmed.
Alan G. Stoler, p.C., L.L.o., for appellant.
Jon bruning, Attorney General, and Nathan A. Liss for
appellee.
heavicaN, c.J., coNNolly, G errarD, StephaN, MccorMack,
and M iller-lerMaN, JJ., and iNboDy, Chief Judge.
coNNolly, J.
A jury found David M. kass guilty of one count of entice-
ment by an electronic communication device under Neb. rev.
Stat. § 28-833 (reissue 2008). The district court sentenced
kass to 1 year in prison and ordered him to register as a sex
offender. He argues that § 28-833 violates the First Amendment
because it is facially overbroad, that the court erred in its jury
instructions, and that his sentence is excessive. We affirm.
I. bACkGroUND
on July 13, 2009, kass, an omaha police officer, logged
onto his “Yahoo!” chat account using his personal computer.
894 	281 NEbrASkA rEporTS

He used the screen name “chs1665.” A La Vista police officer
also logged onto the chat service that day. This officer, who
was conducting an undercover investigation, signed in with a
screen name that represented that he was a female. He adopted
the screen name “mickigirl14.” because the “romance chat
rooms” on the Yahoo! chat services require a person to be at
least age 18 to enter, the officer entered a date of birth to indi-
cate that the fictitious female was 19 years old.
The La Vista officer logged onto a chat room designated
“Nebraska romance” and waited. He did not initiate contact
with any of the other members present in the chat room.
Eventually, a participant contacted the officer. The partici-
pant was kass. The two began a conversation that spanned
11⁄2 hours.
In our summary of the conversation that follows, we cor-
rect grammar, spelling, or punctuation only when the meaning
would otherwise be unclear. We do not add “sic” at any point
because it would be necessary far too often and would clutter
the opinion.
About 5 minutes into the conversation, kass asked the offi-
cer, or decoy, “asl [age, sex, location]?” To which the decoy
responded, “14[, female,] omaha.” kass then said that he was
25, a male, and in omaha. kass asked if this was “too old?”
The decoy asked, “4 whut?” kass responded, “anything.”
kass directed the conversation. Shortly after asking the
decoy’s age, kass asked the decoy what she was going to do
that day. The decoy responded that she would be swimming at
a pool at her grandmother’s apartment complex. kass asked
whether her bathing suit was “one piece or two piece.” When
the decoy answered, “two,” kass responded, “nice.” kass also
asked her if her suit was small. He asked her what apartment
complex she would be swimming at. After the decoy asked
why kass would want to know, kass backed off that line
of questioning.
A short time later, kass asked what the decoy was wearing.
The decoy responded, “just some shorts and a tank, why[?]”
kass then said, “very cute just making convo.” He then asked
if she was home alone. The decoy responded that her grand-
mother would still be home for “a little while.”
STATE v. kASS 	895
Cite as 281 Neb. 892

The conversation then turned to more personal matters.
kass asked if the decoy had a boyfriend. She responded, “not
anymore.” kass then said, “awesome what all did you do with
him?” The decoy responded that she would go to the movies
or just hang out with her boyfriend. kass asked, “did you kiss
him?” The decoy responded, “hey now,” as if to indicate that
such a question was inappropriate. She stated further, “per-
sonal qwestion and i dont even no u.” Later, after the decoy
indicated that she went to a shopping mall often, kass asked if
she shopped at a certain lingerie store and if she had anything
from the store. When the decoy indicated that she had under-
wear and a pajama shirt from the store, kass asked “what style
panties?” After kass pressed for details on the underwear, the
decoy said, “u sure like 2 ask qwestions bout whut i wear,”
which could again be seen as an indication by the decoy that
the line of questioning was inappropriate. kass responded,
“sorry just being dumb lol.”
The conversation continued down a sexual path, all seem-
ingly at the direction of kass and over the, albeit subtle, pro-
testations of the decoy. kass asked what size bra the decoy
wore. The time logs on the chat indicate that the decoy did not
respond for 2 minutes, at which time kass asked, “cat got ur
tongue?” The decoy responded, “just not sure if i shuld say.”
kass said, “ok dont say if you dont want to.” The decoy went
on, “its just I dont no u very well . . . and im kinda embar-
rassed cuz i think im kinda small.” kass then coaxed her into
saying that she wore a “32 a,” to which kass responded, “very
nice.” kass then said, “i like tiny girls and being properly por-
tioned to ur body is the key.”
A short time later, kass asked, “whats the most you have
done with a boy?” The decoy asked if kass was joking. kass
indicated that he might have been both asking seriously and
joking at the same time. The decoy responded that she had
not had sex but had done “some stuf.” kass asked if it was
“oral fun or just hands?” The decoy then said, “ur not gonna
think bad of me if i tell u are u[?]” After kass said no, the
decoy indicated it was oral sex. kass then pressed for fur-
ther details, including whether the decoy masturbated. After
the decoy said that she had never “finished,” kass asked her,
896 	281 NEbrASkA rEporTS

“you wanna finish?” The decoy also stated that she had “never
had one,” presumably referring to an orgasm. kass asked,
“want one?” To which the decoy responded, “with u?” kass
answered, “suer . . . or with anyone.” kass pressed the decoy,
later asking, “wanna get off?” and encouraged the decoy to try
masturbating.
The conversation then turned to graphic detail regarding oral
sex. kass asked if the decoy would like to try it. The decoy
then asked kass if he would be interested in her, consider-
ing her age. kass responded, “kinda.” kass continued to ask
numerous detailed questions regarding the decoy’s experience
with oral sex.
kass then asked about intercourse. He asked the decoy,
“what about sex?” The decoy asked in return, “what bout it.”
kass responded, “wanna?” The decoy responded, “alot of girls
are doin it but im so scared of gettin pregnent.” kass answered,
“condoms . . . lol.” The decoy expressed her fear of getting
pregnant, stating, “im 2 yung 2 have a baby.” A short time later,
kass ended the conversation.
Two days after this conversation, officers served a search
warrant on kass’ home. The State later charged kass with one
count of enticement by an electronic communication device in
violation of § 28-833.
before trial, kass moved to quash or, in the alternative,
demur to the information. kass cited nine bases for his motion,
including that the statute violated the First Amendment and
was vague and overbroad because of its inclusion of a peace
officer as a victim. The court denied this motion.
After the presentation of evidence, the court instructed
the jury on two subsections of § 28-833, namely subsec-
tions (1)(a) and (c). The court did not instruct the jury on
the meaning of “indecent, lewd, lascivious, or obscene.” The
record, however, does not indicate that kass ever requested
such an instruction. Although kass had requested an instruc-
tion on the defense of entrapment, the court refused to give
it. The court found that the record failed to show entrapment
and stated that the defense seemed inconsistent with kass’
other defense that he thought the decoy was over the age
of 16.
STATE v. kASS 	897
Cite as 281 Neb. 892

The jury found kass guilty of enticement. The court then
sentenced kass to 1 year in prison and ordered him to register
as a sex offender.
II. ASSIGNMENTS oF Error
kass raises four assignments of error, which we restate as
follows:
(1) The court erred in concluding that § 28-833 is not over-
broad, in violation of the First Amendment.
(2) The court committed plain error in failing to instruct
the jury on the definition of “indecent, lewd, lascivious, or
obscene.”
(3) The court erred in failing to instruct the jury on an
entrapment defense.
(4) The court erred in imposing an excessive sentence.
III. STANDArD oF rEVIEW
[1,2] Whether a statute is constitutional presents a question
of law, which we resolve without regard to how the issue was
decided below.1 Whether jury instructions are correct also pre-
sents a question of law.2
IV. ANALYSIS
1. overbreaDth of § 28-833
[3] kass’ first argument is that § 28-833 is overbroad and
thus violates the First Amendment. The First Amendment pro-
vides, in relevant part, that “Congress shall make no law . . .
abridging the freedom of speech”3 and is made applicable to
the states by the Due process Clause of the 14th Amendment.4
The First Amendment limits a state’s ability to prosecute cer-
tain criminal offenses.5
1 See State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009).
2 See Sinsel v. Olsen, 279 Neb. 38, 777 N.W.2d 54 (2009).
3 U.S. Const. amend. I.
4 Va. Pharmacy Bd. v. Consumer Council, 425 U.S. 748, 96 S. Ct. 1817, 48
L. Ed. 2d 346 (1976).
5 State v. Drahota, 280 Neb. 627, 788 N.W.2d 796 (2010).
898 	281 NEbrASkA rEporTS

At oral argument, kass stressed that he was challenging only
subsection (1)(a) as being overbroad. Accordingly, we will ana-
lyze only that section. Section 28-833(1) provides:
A person commits the offense of enticement by electronic
communication device if he or she is nineteen years of
age or over and knowingly and intentionally utilizes an
electronic communication device to contact a child under
sixteen years of age or a peace officer who is believed by
such person to be a child under sixteen years of age and
in so doing:
(a) Uses or transmits any indecent, lewd, lascivious, or
obscene language, writing, or sound;
(b) Transmits or otherwise disseminates any visual
depiction of sexually explicit conduct as defined in sec-
tion 28-1463.02 [defining terms under Child pornography
prevention Act]; or
(c) offers or solicits any indecent, lewd, or lascivi-
ous act.
We recently considered an equal protection challenge to
Neb. rev. Stat. § 28-320.02 (reissue 2008), which criminal-
izes enticement of a child by an electronic communication
device to engage in sexual conduct if the sexual conduct would
violate specified criminal statutes.6 We rejected the defendant’s
argument that the statute was subject to strict scrutiny because
it jeopardized the exercise of the fundamental rights to free
speech and sexual privacy. We held that the First Amendment
does not protect speech used to entice a minor to engage in
illegal sexual conduct. We also held that the fundamental right
to sexual privacy does not apply to statutes regulating sexual
conduct with a minor.7 Under the same reasoning, we have held
that strict scrutiny did not apply to a statute regulating child
pornography.8 Child pornography is not protected speech when
adequately defined.9
6 See Rung, supra note 1.
7 See id.
8 See State v. Senters, 270 Neb. 19, 699 N.W.2d 810 (2005).
9 See, New York v. Ferber, 458 U.S. 747, 102 S. Ct. 3348, 73 L. Ed. 2d 1113
(1982); State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338 (1993).
STATE v. kASS 	899
Cite as 281 Neb. 892

but § 28-833(1) is not limited to the transmission of child
pornography or speech to entice a child to engage in illegal sex-
ual conduct. Subsection (1)(a) prohibits a person over the age
of 19 from using an electronic communication device to trans-
mit to a child age 16 or younger any speech that is “indecent,
lewd, lascivious, or obscene.” because this prohibition is not
tied to promoting illegal activity,10 we must consider whether it
violates the First Amendment’s protection of speech.
[4-6] Except for a few well-recognized categories of unpro-
tected speech,11 a content-based restriction on speech is pre-
sumptively invalid and subject to strict scrutiny.12 The state
bears the burden to rebut that presumption.13 but when a party
does not claim that the challenged law has no valid applica-
tion, a facial challenge must establish that a substantial number
of the law’s applications are unconstitutional in relation to
its legitimate sweep.14 If shown, this substantial overbreadth
invalidates all enforcement of the law.15 Conversely, the attack
fails if the challenger fails to meet this burden.16
[7] As noted, the court instructed the jury that it could con-
vict kass if it found that the State had proved a violation of
§ 28-833(1)(a) or (c). We do not know under which subsection
the jury convicted kass. Even in that circumstance, however,
kass does not argue that he was engaged in constitutional
speech or that subsection (1)(a) is unconstitutional as applied
to him. Nonetheless, a party has standing to challenge a stat-
ute as overbroad, even if unaffected by the part that punishes
protected speech, when the party claims that the statute will
significantly compromise the free speech rights of others not
10 See Rung, supra note 1.
11 See Drahota, supra note 5.
12 See United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120
S. Ct. 1878, 146 L Ed. 2d 865 (2000).
13 Playboy Entertainment Group, Inc., supra note 12.
14 See, e.g., U.S. v. Stevens, 559 U.S. 460, 130 S. Ct. 1577, 176 L. Ed. 2d 435
(2010).
15 Virginia v. Hicks, 539 U.S. 113, 123 S. Ct. 2191, 156 L. Ed. 2d 148
(2003).
16 State v. Hookstra, 263 Neb. 116, 638 N.W.2d 829 (2002).
900 	281 NEbrASkA rEporTS

before the court.17 This exception to traditional standing rules
exists out of “concern that the threat of enforcement of an
overbroad law may deter or ‘chill’ constitutionally protected
speech—especially when the overbroad statute imposes crimi-
nal sanctions.”18
[8,9] A statute is unconstitutionally overbroad and thus
offends the First Amendment if, in addition to forbidding
speech or conduct which is not constitutionally protected, it also
prohibits the exercise of constitutionally protected speech.19 A
court may invalidate a statute on its face, however, only if its
overbreadth is “substantial,” i.e., when the statute is unconsti-
tutional in a substantial portion of cases to which it applies.20
A realistic danger must exist that the statute will significantly
compromise recognized First Amendment protections of parties
not before the court.21
Here, kass cannot meet that burden. He argues that because
the statute does not define “indecent, lewd, lascivious, or
obscene,” the statute is overbroad in its application. We rec-
ognize that the U.S. Supreme Court in Reno v. American Civil
Liberties Union22 struck down a similar statute, in part, over
its concern that Congress failed to define the terms “‘inde-
cent’” and “‘patently offensive’” in a manner that ensured
they would not be applied to protected speech.23 but here, the
Legislature has used a phrase to define the prohibited conduct
that we previously construed in State v. Kipf.24 The Legislature
obviously intended to restrict the range of this statute to our
earlier construction.
17 See, Hicks, supra note 15; Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct.
2908, 37 L. Ed. 2d 830 (1973); Hookstra, supra note 16.
18 See Hicks, supra note 15, 539 U.S. at 119.
19 Rung, supra note 1.
20 See id.
21 See id.
22 See Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S. Ct.
2329, 138 L. Ed. 2d 874 (1997).
23 Id., 521 U.S. at 865.
24 State v. Kipf, 234 Neb. 227, 450 N.W.2d 397 (1990).
STATE v. kASS 	901
Cite as 281 Neb. 892

[10,11] In New York v. Ferber,25 the U.S. Supreme Court
held that child pornography, though separate from obscenity,
is not protected by the First Amendment if the conduct to be
prohibited is “adequately defined by the applicable state law,
as written or authoritatively construed.” The Court has further
stated that in considering a facial challenge to a law regulat-
ing speech, it will narrow its application when the language is
readily susceptible to such construction.26 We have recognized
a similar standard for overbreadth challenges.27 A statute is sus-
ceptible to a narrowing construction when the text or another
source of legislative intent identifies a clear line that a court
can draw.28
Here, the Legislature’s use of the phrase “indecent, lewd,
lascivious, or obscene,” which is the same phrase that we con-
strued in Kipf, identifies a clear line that we can apply to narrow
the statute’s reach. In Kipf, we considered a challenge to Neb.
rev. Stat. § 28-1310 (reissue 1985), which criminalizes intim-
idation by telephone call if, with intent to terrify, intimidate,
threaten, harass, annoy, or offend, a person telephones another
and “uses indecent, lewd, lascivious, or obscene language or
suggests any indecent, lewd, or lascivious act.” We held that
the phrase “indecent, lewd, lascivious, or obscene” refers to
language that “conjures up repugnant sexual images.”29
Further, we emphasize that to violate § 28-833, a person
must “knowingly and intentionally . . . contact” the minor or
decoy. We construe this language to mean that the statute only
applies when a person uses the prohibited speech in a private
conversation with a minor or a decoy. In other words, the stat-
ute only applies when the defendant is speaking exclusively to
a minor or decoy. Such a construction eliminates any possibil-
ity of chilling constitutionally protected speech among adults,
which was a major concern of the Court in Reno.
25 See Ferber, supra note 9, 458 U.S. at 764.
26 See Reno, supra note 22.
27 See, e.g., Hookstra, supra note 16.
28 See Reno, supra note 22.
29 Kipf, supra note 24, 234 Neb. at 235, 450 N.W.2d at 405.
902 	281 NEbrASkA rEporTS

When these limiting constructions are applied to § 28-833,
the statute proscribes a person age 19 or older from knowingly
and intentionally using an electronic communication device to
contact a child under age 16, or peace officer whom the person
believes to be a child under age 16, and using language that
conjures up repugnant sexual images. This restriction does not
include within its ambit the concerns raised in Reno.30 That is,
it does not, for example, restrict an adult from having a serious
conversation with a child under age 16 about birth control prac-
tices, homosexuality, or prison rape.31 Similarly, the narrowed
construction of the statute is sufficient to restrict its applica-
tion to speech that lacks serious literary, artistic, political, or
scientific value.32 Thus, we conclude that kass’ overbreadth
challenge fails.
2. Jury iNStructioNS
kass also argues that the court erred in failing to instruct the
jury in two respects.
(a) Instruction on Meaning of Terms “Indecent,
Lewd, Lascivious, or obscene”
kass argues that the court erred in not instructing the jury
on the meaning of the terms “indecent, lewd, lascivious, or
obscene.” kass argues that the court erred in not providing
definitions of the terms. The record, however, indicates that
kass never requested such an instruction.
[12,13] because kass did not request this instruction, we
review the court’s failure to give it only for plain error.33 plain
error will be noted only where an error is evident from the
record, prejudicially affects a substantial right of a litigant, and
is of such a nature that to leave it uncorrected would cause a
miscarriage of justice or result in damage to the integrity, repu-
tation, and fairness of the judicial process.34
30 Reno, supra note 22.
31 See id.
32 See Kipf, supra note 24.
33 See State v. Sellers, 279 Neb. 220, 777 N.W.2d 779 (2010).
34 State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010).
STATE v. kASS 	903
Cite as 281 Neb. 892

[14] The failure to define the terms in the statute does not
rise to the level of plain error. The jury instructions described
the offense in the language of the statute. And we have previ-
ously held that it is proper for the court to describe the offense
in the language of the statute.35 There was no plain error in the
court’s instruction on the elements of the crime.
(b) Entrapment
kass argues that the court erred in denying his request for a
jury instruction on the defense of entrapment. We find that on
the record before us, the evidence does not warrant an entrap-
ment instruction.
[15] To establish reversible error from a court’s refusal to
give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction is warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
refusal to give the tendered instruction.36
[16-18] When a defendant raises the defense of entrapment,
the trial court must determine, as a matter of law, whether the
defendant has presented sufficient evidence to warrant a jury
instruction on entrapment.37 In Nebraska, entrapment is an
affirmative defense consisting of two elements: (1) the gov-
ernment induced the defendant to commit the offense charged
and (2) the defendant’s predisposition to commit the criminal
act was such that the defendant was not otherwise ready and
willing to commit the offense.38 The burden of going forward
with evidence of government inducement is on the defendant.
In assessing whether the defendant has satisfied this burden,
the initial duty of the court is to determine whether there is
sufficient evidence that the government has induced the defend-
ant to commit a crime. The court makes this determination as
a matter of law, and the defendant’s evidence of inducement
need be only more than a scintilla to satisfy his or her initial
35 See State v. Davlin, 272 Neb. 139, 719 N.W.2d 243 (2006).
36 State v. Pischel, 277 Neb. 412, 762 N.W.2d 595 (2009).
37 Id.
38 Id.
904 	281 NEbrASkA rEporTS

burden.39 A defendant need not present evidence of entrapment;
he or she can point to such evidence in the government’s case
in chief or extract it from the cross-examination of the govern-
ment’s witnesses.40
[19,20] Inducement can be any government conduct creating
a substantial risk that an otherwise law-abiding citizen would
commit an offense, including persuasion, fraudulent representa-
tion, threats, coercive tactics, promise of reward, or pleas based
on need, sympathy, or friendship. Inducement requires some-
thing more than a government agent or informant suggested the
crime and provided the occasion for it.41 Inducement consists of
an opportunity plus something else, such as excessive pressure
by the government upon the defendant or the government’s tak-
ing advantage of an alternative, noncriminal type of motive.42
To show inducement, “a defendant must establish that ‘[it was]
the prosecution [that] set the accused in motion . . . .’”43
kass claims two facts show inducement—that given the
decoy’s profile and Yahoo!’s chat room policies, kass thought
the decoy was over 18, and that the decoy was the first to use
the word “sex” or “oral.” Neither of these facts suffices to
show inducement.
The record shows that kass was informed of the decoy’s sup-
posed age well before he said anything that even approached
the speech covered by the statute. When the decoy told kass
her age, kass asked if he was too old, which indicates that
he read and understood the decoy’s message. And other state-
ments made by kass and the decoy lead us to believe that
kass knew he was talking to a minor. At this point, kass
could have left the conversation without violating any law. The
decoy did not encourage him to stay. Nor did the decoy urge
him to discuss anything sexual. In fact, the chat logs indicate
39 See id.
40 Id.
41 Id.
42 Id.
43 U.S. v. Brand, 467 F.3d 179, 190 (2d Cir. 2006), quoting United States v.
Sherman, 200 F.2d 880 (2d Cir. 1952).
STATE v. kASS 	905
Cite as 281 Neb. 892

that the decoy protested when kass’ questions and comments
turned sexual. Even over these protests, kass continued to
push the conversation toward the topic of sex. The only times
the decoy mentioned sex were in response to kass’ questions.
The record fails to show that the State induced kass to act.
Accordingly, it was not error for the trial court to refuse the
requested instruction.
3. exceSSive SeNteNce
Finally, kass argues that his sentence is excessive. The court
sentenced kass to 1 year in prison with credit for 2 days served
and ordered kass to register as a sex offender.
kass was convicted under § 28-833, which is a Class IV fel-
ony. Under Neb. rev. Stat. § 28-105 (reissue 2008), a person
convicted of a Class IV felony can be sentenced to 0 to 5 years
in prison, a $10,000 fine, or both. The court sentenced kass to
1 year in prison, which is well within the statutory limits.
[21-25] An appellate court will not disturb a sentence
imposed within the statutory limits absent an abuse of discre-
tion by the trial court.44 An abuse of discretion occurs when
the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and deny-
ing a just result in matters submitted for disposition.45 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 violence involved in the commission of the crime.46
In imposing a sentence, the sentencing judge is not limited to
any mathematically applied set of factors.47 The appropriate-
ness of a sentence is necessarily a subjective judgment and
includes the sentencing judge’s observation of the defendant’s
44 State v. Fuller, 278 Neb. 585, 772 N.W.2d 868 (2009).
45 See Rung, supra note 1.
46 Id.
47 Id.
906 	281 NEbrASkA rEporTS

demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life.48
Given kass’ age, his education, the offense, and the fact
that he was a police officer, we conclude that the court did not
abuse its discretion in sentencing kass to 1 year in prison.
V. CoNCLUSIoN
We conclude that none of kass’ assignments of error have
merit. We affirm his conviction and sentence.
affirMeD.
WriGht, J., not participating.
48 Id.
iN re iNtereSt of katriNa r., a chilD uNDer 18 yearS of aGe .
State of NebraSka , appellee , v. katriNa r., appellee ,
aND NebraSka D epartMeNt of health
aND huMaN ServiceS, appellaNt.
799 N.W.2d 673
Filed July 15, 2011. 	No. S-10-643.
1. Statutes: Appeal and Error. To the extent an appeal calls for statutory interpre-
tation or presents questions of law, an appellate court must reach an independent
conclusion irrespective of the determination made by the court below.
2. Statutes. Statutes relating to the same subject matter will be construed so as to
maintain a sensible and consistent scheme, giving effect to every provision.
3. Juvenile Courts: Jurisdiction: Statutes. As a statutorily created court of limited
and special jurisdiction, a juvenile court has only such authority as has been con-
ferred on it by statute.
4. ____: ____: ____. Absent any provision affirmatively stating otherwise, it is
within the juvenile court’s discretion to issue whatever combination of statutorily
authorized dispositions as the court deems necessary to protect the juvenile’s
best interests.
5. Juvenile Courts: Jurisdiction: Statutes: Child Custody. It is within the juve-
nile court’s statutory power to issue a dispositional order for juveniles adjudicated
under Neb. rev. Stat. § 43-247(3)(b) (reissue 2008), which includes both legal
custody with the Department of Health and Human Services and supervision by a
probation officer.
Appeal from the County Court for Lincoln County: keNt D.
turNbull, Judge. Affirmed.
IN rE INTErEST oF kATrINA r. 	907
Cite as 281 Neb. 907