State v. Williams

State of NebraSka , appellee , v.
larry WilliamS, appellaNt.
802 N.W.2d 421
Filed September 2, 2011. 	No. S-10-929.
1. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal
case, a motion for new trial is addressed to the discretion of the trial court, and
unless an abuse of discretion is shown, the trial court’s determination will not
be disturbed.
2. Trial: Prosecuting Attorneys. Whether prosecutorial misconduct is prejudicial
depends largely on the facts of each case.
3. Motions for New Trial: Prosecuting Attorneys: Appeal and Error. An appel-
late court reviews a motion for new trial on the basis of prosecutorial misconduct
for an abuse of discretion of the trial court.
4. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
5. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an abuse of discretion.
6. Rules of Evidence: Other Acts: Appeal and Error. It is within the discretion
of the trial court to determine relevancy and admissibility of evidence of other
wrongs or acts under Neb. Evid. R. 403 and 404(2), Neb. Rev. Stat. §§ 27-403
(Reissue 2008) and 27-404(2) (Cum. Supp. 2010), and the trial court’s decision
will not be reversed absent an abuse of discretion.
7. 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.
8. Trial: Evidence: Appeal and Error. On appeal, a party may not assert a differ-
ent ground for an objection to the admission of evidence than was offered to the
trial court.
9. Rules of Evidence. The fact that evidence is prejudicial is not enough to require
exclusion under Neb. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008),
because most, if not all, of the evidence a party offers is calculated to be prejudi-
cial to the opposing party; it is only the evidence which has a tendency to suggest
a decision on an improper basis that is unfairly prejudicial under rule 403.
10. Rules of Evidence: Other Acts. Evidence of other crimes which is relevant for a
purpose other than to show the actor’s propensity is admissible under Neb. Evid.
R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2010).
11. Rules of Evidence: Other Acts: Appeal and Error. An appellate court’s analy-
sis under Neb. Evid. R. 404(2), Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2010),
considers (1) whether the evidence was relevant for some purpose other than to
prove the character of a person to show that he or she acted in conformity there-
with; (2) whether the probative value of the evidence is substantially outweighed
by its potential for unfair prejudice; and (3) whether the trial court, if requested,
182 	282 NEbRASkA REpORTS
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www.nebraska.gov/apps-courts-epub/
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instructed the jury to consider the evidence only for the limited purpose for which
it was admitted.
12. 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.
13. ____. In imposing a sentence, the sentencing court is not limited to any math-
ematically applied set of factors.
14. ____. 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.
15. ____. both the nature of the offense for which a defendant is being sen-
tenced and the defendant’s past criminal record are appropriate considerations
in sentencing.
16. Appeal and Error. plain error may be found on appeal when an error unasserted
or uncomplained of at trial, but plainly evident from the record, prejudicially
affects a litigant’s substantial right and, if uncorrected, would result in damage to
the integrity, reputation, and fairness of the judicial process.
17. Sentences. Under Neb. Rev. Stat. § 83-1,106 (Reissue 2008), an offender shall be
given credit for time served as a result of the charges that led to the sentences;
however, presentence credit is applied only once.
Appeal from the District Court for buffalo County: William
t. Wright, Judge. Affirmed as modified.
John H. Marsh, Deputy buffalo County public Defender,
of knapp, Fangmeyer, Aschwege, besse & Marsh, p.C., for
appellant.
Jon bruning, Attorney General, and Erin E. Tangeman for
appellee.
heavicaN, 	c.J., 	Wright, 	coNNolly, 	gerrard, 	StephaN,
mccormack , and miller-lermaN, JJ.
miller-lermaN, J.
NATURE OF CASE
Larry Williams appeals his convictions and sentences in
the district court for buffalo County for five counts of first
degree sexual assault and one count of sexual assault of a
child. Williams claims that the court erred when it overruled
his motion for new trial and that the court imposed excessive
sentences. We affirm Williams’ convictions, and because we
STATE v. WILLIAMS 	183
Cite as 282 Neb. 182

find plain error in connection with the application of credit, we
affirm Williams’ sentences as modified.
STATEMENT OF FACTS
The charges against Williams arose from a relationship that
Williams, who was born in July 1956, had with S.A., who
was born in February 1987. Williams described the relation-
ship as a “mentoring” relationship. brief for appellant at 6. In
his defense at trial, Williams denied that the relationship was
romantic or sexual. However, S.A. testified that the relationship
became sexual before she reached 16 years of age. The inci-
dents charged were alleged to have occurred between February
25, 2001, and February 24, 2003, when S.A. was 14 and 15
years old. The following facts are based on trial testimony of
S.A. and other witnesses:
S.A. moved to Ravenna, Nebraska, in the summer of 1998,
prior to her sixth grade year, to live with her mother and step-
father. S.A. had trouble adjusting to her mother’s new marriage,
and the stepfather would sometimes be physically violent. S.A.
began acting out physically and verbally. When arguments and
tension in the family reached a certain point, S.A.’s mother
called the police to defuse the situation.
As a police officer for the city of Ravenna, Williams some-
times responded to calls to S.A.’s house. The first time that
S.A. recalled Williams’ coming to the house was when she
was in the sixth grade. Williams or another officer responded
to calls to the house, but S.A.’s mother eventually began to
specifically call for Williams to help deal with situations in
the home, whether or not he was on duty. From S.A.’s sixth
through eighth grade years, S.A. continued to have contact with
Williams and he would talk to her about her family and school
problems. When she was upset about circumstances at home,
S.A. would sometimes go out walking, and if Williams was on
patrol, he might see her and stop to check on her. At one point,
S.A. began going to the police station to visit Williams.
During her ninth grade year, from 2001 to 2002, S.A. went
to live with her father in Omaha, Nebraska, and later, Gretna,
Nebraska. She returned to Ravenna for visits with her mother
every other weekend. S.A. recalled that during one of her
184 	282 NEbRASkA REpORTS

weekend visits, Williams saw her walking around town and
told her he would come to visit her. Williams later pulled his
police car into the alley behind S.A.’s mother’s house, and S.A.
went out to sit in the car with him. They talked until it became
dark. S.A. told Williams she was tired, and she laid her head
on his shoulder. Williams put his arm around her shoulders and
began to slowly move his hand down her shirt. He stuck his
hand inside her shirt and cupped his hand around her breast.
S.A. was shocked by the touch, and she eventually went back
into the house and went to bed. S.A. was 14 years old at the
time of the incident.
S.A. continued to see Williams when she returned to Ravenna
for weekend visits. The two did not talk about the incident
when he had touched her breast, but interactions between the
two began to change in that he would sometimes hold her
hand, and he kissed her once. At the end of her ninth grade
year, S.A. moved back to Ravenna to live with her mother. One
night during the summer of 2002, before S.A.’s sophomore
year in high school, S.A. rode with Williams in his police car
to the police department office located in the city hall. There,
they started to kiss and hug, and eventually they had sexual
intercourse. before penetration, Williams asked S.A. if it was
“okay,” and she said that it was. S.A. was 15 years old at the
time of the incident.
After school started in the fall of 2002, S.A. continued to see
Williams and sometimes they would have sexual intercourse.
S.A. specifically recalled four additional times they had sexual
intercourse from the fall of 2002 until she turned 16 in February
2003. The incidents took place at various locations in Ravenna,
including the city council chambers, the public swimming pool
area, the shooting range, and Williams’ police car when it was
parked in a garage attached to the city hall.
In November 2004, Williams told S.A. that he wanted to
end his relationship with her. S.A. was upset and asked her
mother to arrange for her to see a counselor she had seen when
she lived with her father. After a few sessions, S.A. told the
counselor that she had had a sexual relationship with an older
man and that the relationship had started when she was 16. In
late December, S.A. called Williams and learned that he had
STATE v. WILLIAMS 	185
Cite as 282 Neb. 182

gotten married. After learning this, S.A. told her mother she
was upset, and for the first time, S.A. told her mother about
the sexual relationship with Williams. S.A.’s mother feared
S.A. would hurt herself, and she therefore called the police to
have S.A. hospitalized. S.A.’s mother told hospital personnel
about S.A.’s relationship with Williams. A law enforcement
investigation was begun that eventually led to the charges in
this case.
On March 5, 2007, the district court for buffalo County
sustained a motion filed by the buffalo County Attorney and,
pursuant to Neb. Rev. Stat. § 23-1204.01 (Reissue 2007),
appointed “the Nebraska Attorney General and his designated
Assistant Attorneys General to serve as Special Deputy County
Attorneys in all matters relating to the prosecution.” The infor-
mation and subsequent amended informations filed in this case
were signed by persons who under oath identified themselves
as special deputy county attorneys. The State initially filed an
information charging Williams with one count of first degree
sexual assault. On June 14, the State filed an amended infor-
mation charging Williams with six counts of first degree sexual
assault, in violation of Neb. Rev. Stat. § 28-319(1)(c) (Reissue
1995), and one count of sexual assault of a child, in violation
of Neb. Rev. Stat. § 28-320.01 (Cum. Supp. 2004). The first
degree sexual assaults were alleged to have occurred between
February 25, 2002, and February 24, 2003, when S.A. was 15,
and the sexual assault of a child was alleged to have occurred
between February 25, 2001, and February 24, 2002, when S.A.
was 14.
A jury trial was held October 1 through 4, 2007. At the con-
clusion of the trial, the jury announced that it was deadlocked
and the court declared a mistrial. On November 16, Williams
filed a plea in abatement asserting that the jury’s announce-
ment and the declaration of a mistrial occurred outside his
presence and the presence of his counsel. On January 7, 2008,
the court entered an order denying Williams’ plea in abate-
ment. Williams appealed the January 7 order, but, on August
4, 2008, in case No. A-08-067, the Nebraska Court of Appeals
sustained the State’s motion to dismiss the appeal for lack
of jurisdiction.
186 	282 NEbRASkA REpORTS

Williams thereafter filed a plea in bar asserting that a retrial
would violate his constitutional right not to be subjected to
double jeopardy and specifically asserting that because the
declaration of a mistrial was an abuse of discretion, a second
prosecution was barred and the matter should be dismissed.
The district court overruled the plea in bar and found that the
declaration of a mistrial was supported by manifest necessity.
Williams again appealed, and, on January 13, 2009, in case
No. A-08-1220, the Court of Appeals summarily dismissed the
appeal. We granted Williams’ petition for further review of the
dismissal. We concluded that the order overruling Williams’
plea in bar was a final, appealable order that we had jurisdic-
tion to review. We further concluded that although the district
court erred when it did not have the parties and counsel pres-
ent for the colloquy with the jury regarding the deadlock, the
court did not abuse its discretion when it declared a mistrial.
We finally concluded that because jeopardy did not terminate,
retrial was not barred. See State v. Williams, 278 Neb. 841, 774
N.W.2d 384 (2009).
prior to a second trial, the State filed a second amended
information in which it removed one of the six counts of first
degree sexual assault alleged under § 28-319(1)(c) but added
two counts of first degree sexual assault under § 28-319(1)(b),
which were alleged to have occurred after S.A. turned 16 but at
a time when Williams knew or should have known that she was
incapable of resisting or appraising the nature of her conduct.
Williams filed a motion to quash the two additional counts,
asserting that adding the two counts evidenced prosecutorial
vindictiveness which violated his due process rights. The court
noted that Williams’ only evidence of vindictiveness was the
timing of the second amended information, which timing fol-
lowed the mistrial in the first trial and Williams’ filing of a
plea to dismiss the charges against him on double jeopardy
grounds. The court concluded that the facts did not give rise to
a presumption of vindictiveness, and the court found “little to
suggest that the motivation for the filing of the two amended
charges was likely the result of vindictiveness for [Williams’]
seeking a dismissal of the original charges.” The court there-
fore overruled the motion to quash.
STATE v. WILLIAMS 	187
Cite as 282 Neb. 182

A second jury trial was held January 25 through 29, 2010.
At the close of the State’s case, Williams made a motion to
dismiss, for lack of sufficient evidence, the two charges of
first degree sexual assault under § 28-319(1)(b) that had been
added in the second amended information. The district court
sustained this motion. The court overruled Williams’ additional
motion for a mistrial of the remaining counts made on the basis
that certain evidence admitted at trial related only to the two
dismissed counts. When the trial resumed, the court told the
jury that the two counts had been dismissed and instructed the
jury that it must disregard the evidence and testimony related
to such charges and to the relationship between Williams
and S.A. after her 16th birthday. Williams then presented his
defense. The day after deliberations began, the jury informed
the court that it was deadlocked. The court declared a mistrial
when the jury was still deadlocked after two additional hours
of deliberations.
A third trial was held July 19 through 21, 2010, on the remain-
ing five counts of first degree sexual assault and one count of
sexual assault of a child. The jury found Williams guilty of all
counts. The third trial gives rise to the instant appeal.
In support of his motion for new trial, Williams argued that
his rights to due process were violated and that the prosecutors
were guilty of misconduct when the State subjected him to a
third trial. Williams argued that without the evidence regard-
ing two additional counts of first degree sexual assault that
were ultimately dismissed, the second jury might not have
been deadlocked and that instead, he might have been acquit-
ted of the remaining charges in the second trial. Williams also
argued that the operative information in this case was defective,
because the person who signed the information as a special
deputy county attorney was not named in the order in which
the court appointed the Attorney General and his assistants as
special deputy county attorneys and there was nothing in the
information to indicate that the person was an assistant attor-
ney general. Williams also argued that the court made errone-
ous evidentiary rulings when it admitted a note that Williams
wrote to S.A. into evidence. In the note, Williams wrote that
he had problems with “Internal Affairs State patrol” because
188 	282 NEbRASkA REpORTS

of “a girl leaving my apt. late at nights” and that he had been
charged with “‘Conduct unbecoming of a police Officer’”
but that he would “keep [S.A.’s] name out of it.” The State
offered the note into evidence during its cross-examination of
Williams, who testified in his own defense. The court admitted
the note into evidence over Williams’ objections based on Neb.
Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), regard-
ing relevance and unfair prejudice, and Neb. Evid. R. 404, Neb.
Rev. Stat. § 27-404 (Cum. Supp. 2010), regarding other crimes,
wrongs, or acts. The court instructed the jury that the evidence
was received solely for the purpose of impeaching Williams’
testimony and was not to be considered for any other purpose.
Williams argued that the relevance of the note was outweighed
by unfair prejudice, because the note was written when S.A.
was over 16 years of age and after the time of the incidents
charged in this third trial. The court overruled Williams’ motion
for new trial on all grounds.
The district court sentenced Williams to consecutive terms of
imprisonment for 6 to 12 years for each of the five convictions
for first degree sexual assault and to a term of probation for 5
years for sexual assault of a child. The probation sentence was
ordered to be served consecutively to the prison sentences. The
court also stated that Williams was entitled to credit against
the five prison sentences for first degree sexual assault “in the
amount of 45 days each count.”
Williams appeals his convictions and sentences.
ASSIGNMENTS OF ERROR
Williams claims, restated, that the district court erred when
it overruled his motion for new trial and specifically when it
rejected his arguments to the effect that (1) he was denied due
process because the informations were signed by persons who
were not properly identified as the prosecuting authority, (2)
prosecutorial misconduct and due process violations occurred
because of the inclusion of two additional counts of first degree
sexual assault and evidence related thereto in the second trial,
and (3) the court erroneously admitted the note Williams wrote
when S.A. was over 16 years of age into evidence because such
evidence was not proper impeachment in that it was unfairly
STATE v. WILLIAMS 	189
Cite as 282 Neb. 182

prejudicial and it was improper evidence of uncharged mis-
conduct. Williams also claims that the court imposed exces-
sive sentences.
STANDARDS OF REVIEW
[1] In a criminal case, a motion for new trial is addressed to
the discretion of the trial court, and unless an abuse of discretion
is shown, the trial court’s determination will not be disturbed.
State v. Chavez, 281 Neb. 99, 793 N.W.2d 347 (2011).
[2,3] Whether prosecutorial misconduct is prejudicial depends
largely on the facts of each case. State v. Sandoval, 280 Neb.
309, 788 N.W.2d 172 (2010). An appellate court reviews a
motion for new trial on the basis of prosecutorial misconduct
for an abuse of discretion of the trial court. Id.
[4-6] In proceedings where the Nebraska Evidence Rules
apply, 	the 	admissibility 	of 	evidence 	is 	controlled 	by 	the
Nebraska Evidence Rules; judicial discretion is involved only
when the rules make discretion a factor in determining admis-
sibility. Chavez, supra. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the
trial court, we review the admissibility of evidence for an abuse
of discretion. Chavez, supra. It is within the discretion of the
trial court to determine relevancy and admissibility of evidence
of other wrongs or acts under rules 403 and 404(2), and the
trial court’s decision will not be reversed absent an abuse of
discretion. Chavez, supra.
[7] A sentence imposed within statutory limits will not be
disturbed on appeal absent an abuse of discretion by the trial
court. State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).
ANALYSIS
The Informations Properly Identified
the Prosecuting Authorities.
Williams asserts, as the first basis for which the district
court should have granted a new trial, that he was denied due
process because the information and amended informations
were signed by persons who were not properly identified as
the prosecuting authorities. We conclude that the court did not
abuse its discretion when it denied Williams’ motion for new
trial on such basis.
190 	282 NEbRASkA REpORTS

Williams argued in support of a new trial that the infor-
mations in this case were defective because the persons who
signed them as special deputy county attorneys were not named
in the order in which the court appointed the Attorney General
and his assistants as special deputy county attorneys and were
not identified in the information as assistant attorneys gen-
eral. The district court, pursuant to § 23-1204.01, appointed
“the Nebraska Attorney General and his designated Assistant
Attorneys General to serve as Special Deputy County Attorneys
in all matters relating to the prosecution.” The first information
and all three amended informations filed in this case were
signed by persons who under oath identified themselves as
special deputy county attorneys.
Williams relies on Lower v. State, 106 Neb. 666, 184 N.W.
174 (1921), in which this court concluded that an informa-
tion was a nullity because it was signed by an assistant attor-
ney general in his capacity as an assistant attorney general.
This court reasoned that an assistant attorney general was not
clothed with the power to act in his own name and instead was
an agent of the Attorney General who must perform official
acts in the name of the Attorney General.
Williams’ reliance on Lower is misplaced. The import of
Lower is that when an assistant attorney general performs offi-
cial acts that are within the authority of the Attorney General, he
or she must do so on behalf of and in the name of the Attorney
General rather than in his or her own name. In the present case,
the individuals who signed the informations did not do so as
assistant attorneys general or on behalf of the Attorney General
but instead did so pursuant to the district court’s order appoint-
ing them as special deputy county attorneys. The appointment
was made pursuant to § 23-1204.01, and the individuals identi-
fied themselves under oath as having been appointed as special
deputy county attorneys. Such identification was sufficient to
establish them as the proper prosecuting authorities.
Williams makes no argument that the persons who signed
the informations were not assistant attorneys general who
were appointed under the court’s order. Instead, Williams
asserts that they were not properly identified in the infor-
mations and that therefore, the informations were defective.
STATE v. WILLIAMS 	191
Cite as 282 Neb. 182

Williams’ argument in this regard is without merit, and the
district court did not abuse its discretion when it denied a new
trial on this basis.
Additional Counts of First Degree Sexual Assault Were
Dismissed Prior to the Third Trial in Which Williams
Was Convicted, and No Evidence Related to
Such Counts Was Admitted at That Trial.
Williams asserts, as the next basis for which the district
court should have granted a new trial, that the inclusion of two
additional counts of first degree sexual assault and evidence
related thereto in his second trial amounted to prosecutorial
misconduct and a due process violation. We conclude that the
district court did not abuse its discretion when it denied a new
trial on this basis.
After the first trial resulted in a deadlocked jury and a mis-
trial, the State filed a second amended information in which
it added two counts of first degree sexual assault which were
alleged to have occurred after S.A. turned 16 but at a time
when Williams knew or should have known that she was
incapable of resisting or appraising the nature of her conduct.
The court denied Williams’ motion to quash the two addi-
tional counts after rejecting his argument that adding the two
counts evidenced prosecutorial vindictiveness and violated
his due process rights. The court found “little to suggest that
the motivation for the filing of the two amended charges was
likely the result of vindictiveness for [Williams’] seeking a
dismissal of the original charges.” In the second trial, the
State presented evidence relating to the two additional counts,
but the court determined that the State had not presented suf-
ficient evidence to support the counts and dismissed the two
counts before the case was given to the jury. The second trial
resulted in a deadlocked jury and a mistrial.
Williams’ convictions and sentences resulted from a third
trial. As noted, the two additional counts were dismissed before
the third trial and the State did not present evidence which
related to the dismissed counts. Nevertheless, Williams argues
on appeal that the State should not have subjected him to a
third trial, because the second trial included evidence regarding
192 	282 NEbRASkA REpORTS

the two additional counts. Williams did not raise this argu-
ment in the trial court. To the extent Williams argues that the
district court erred when it overruled the motion to quash the
two additional counts in the second trial, we note that Williams
essentially got the remedy he sought in the motion to quash
when the additional counts were dismissed in the second trial
before they were submitted to the jury.
Williams also argues that he was harmed because he might
have been acquitted in the second trial if there had not been
evidence of the additional counts. We do not speculate as to
the reasons the members of the deadlocked jury in the second
trial came to their individual decisions or what decisions they
might have reached if the evidence had not been presented. See
State v. Epp, 278 Neb. 683, 773 N.W.2d 356 (2009) (this court
cannot speculate as to reason for jury’s verdict). We do note,
however, that the court in the second trial instructed the jury
not to consider the evidence related to the additional counts.
We further note that no evidence related to the additional
counts was presented in the third trial at which the jury found
Williams guilty.
We conclude that to the extent there was any error in the
second trial with respect to the inclusion of the two additional
counts, any such error was inapplicable to the third trial,
because evidence related solely to the additional counts was
not included in the third trial, from which Williams’ convic-
tions arose. We conclude that the district court did not abuse its
discretion when it rejected this basis for a new trial.
The District Court Did Not Err When It Admitted
the Note for Purposes of Impeaching
Williams’ Testimony.
Williams asserts, as the final basis for which the district
court should have granted a new trial, that the court errone-
ously admitted the note he wrote when S.A. was over 16 years
of age into evidence. He asserts that such evidence was not
proper impeachment evidence because it was unfairly preju-
dicial and it was improper evidence of uncharged misconduct.
We conclude that the district court did not abuse its discretion
when it denied a new trial on this basis.
STATE v. WILLIAMS 	193
Cite as 282 Neb. 182

We note that the district court admitted the note only for
purposes of impeachment of Williams’ testimony in which he
asserted that he never had a romantic or sexual relationship with
S.A. The note contradicted such testimony. prior to receipt of
the note during the State’s cross-examination of Williams, the
court instructed the jury that the evidence was “offered solely
for the purposes of attacking the credibility of the witness” and
that the jury should not consider the evidence “as proof of the
truth of anything.”
[8] Williams’ objections at trial to the admission of the note
and the line of questioning regarding the note were based on
rules 403 and 404(2). On appeal, a party may not assert a dif-
ferent ground for an objection to the admission of evidence
than was offered to the trial court. State v. Robinson, 272
Neb. 582, 724 N.W.2d 35 (2006), abrogated on other grounds,
State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749 (2010). We
therefore consider Williams’ arguments on appeal that the note
was improper impeachment as arguments based on rules 403
and 404(2).
[9] Rule 403 provides that “[a]lthough relevant, evidence
may be excluded if its probative value is substantially out-
weighed by the danger of unfair prejudice . . . .” The fact
that evidence is prejudicial is not enough to require exclu-
sion under rule 403, because most, if not all, of the evidence
a party offers is calculated to be prejudicial to the opposing
party; it is only the evidence which has a tendency to suggest
a decision on an improper basis that is unfairly prejudicial
under rule 403. State v. Daly, 278 Neb. 903, 775 N.W.2d
47 (2009).
Rule 404(2) provides:
Evidence of other crimes, wrongs, or acts is not admis-
sible to prove the character of a person in order to show
that he or she acted in conformity therewith. It may, how-
ever, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.
[10,11] Rule 404(2) prohibits the admission of other bad
acts evidence for the purpose of demonstrating a person’s pro-
pensity to act in a certain manner. but evidence of other crimes
194 	282 NEbRASkA REpORTS

which is relevant for a purpose other than to show the actor’s
propensity is admissible under rule 404(2). See State v. Chavez,
281 Neb. 99, 793 N.W.2d 347 (2011). Evidence that is offered
for a proper purpose is often referred to as having a “special”
or “independent” relevance, which means its relevance does not
depend upon its tendency to show propensity. Id. An appellate
court’s analysis under rule 404(2) considers (1) whether the
evidence was relevant for some purpose other than to prove the
character of a person to show that he or she acted in conformity
therewith; (2) whether the probative value of the evidence is
substantially outweighed by its potential for unfair prejudice;
and (3) whether the trial court, if requested, instructed the jury
to consider the evidence only for the limited purpose for which
it was admitted. Chavez, supra.
In the present case, the note was not admitted for the pur-
pose of proving Williams’ character or to show that he acted
in conformity therewith. Instead, the note was offered to
impeach his testimony that he did not have a sexual or roman-
tic relationship with S.A. The court instructed the jury that
the evidence was admitted for the sole purpose of attacking
Williams’ credibility and that it should not be considered for
other purposes. The probative value of the evidence was not
outweighed by its potential for unfair prejudice. The note had
probative value because it appeared to be inconsistent with
Williams’ testimony at trial and was therefore relevant to the
jury’s assessment of his credibility. The potential prejudice to
Williams was minimized by the fact that the note was admit-
ted during Williams’ testimony, giving him the opportunity to
explain the meaning of the note and his reasons for writing the
note and leaving it for S.A.
We conclude that the district court did not abuse its dis-
cretion when it admitted the note into evidence and when it
rejected this basis for a new trial.
The Court Did Not Impose Excessive Sentences.
Williams finally asserts that the district court imposed exces-
sive sentences. We conclude that the sentences were within
statutory limits and that the court did not abuse its discretion in
sentencing Williams.
STATE v. WILLIAMS 	195
Cite as 282 Neb. 182

Williams was convicted of five counts of first degree sexual
assault under § 28-319(1)(c) and one count of sexual assault
of a child under § 28-320.01. First degree sexual assault is a
Class II felony, see § 28-319(2), and sexual assault of a child
is a Class IIIA felony, see § 28-320.01. The statutory sentenc-
ing range for a Class II felony is 1 to 50 years’ imprisonment
and for a Class IIIA felony is 0 to 5 years’ imprisonment, a
$10,000 fine, or both. Williams was sentenced to consecutive
terms of imprisonment for 6 to 12 years for each of the five
convictions for first degree sexual assault and to a term of
probation for 5 years for sexual assault of a child, with the
probation sentence ordered to be served consecutively to the
prison sentences. Therefore, Williams’ sentences were within
statutory limits.
A sentence imposed within statutory limits will not be
disturbed on appeal absent an abuse of discretion by the trial
court. State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).
Williams argues that his combined sentences of 30 to 60 years’
imprisonment were an abuse of discretion because he “had
almost no criminal record whatsoever” and because he “had
spent almost his entire adult lifetime in public service.” brief
for appellant at 21. He notes that he had “a long history of law
abiding conduct” which included time in public service in the
military and as a law enforcement officer. Id. at 22. He further
notes that his convictions all pertain to one victim and did not
involve physical violence.
[12-15] 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. Erickson, supra. In imposing a sentence, the sentenc-
ing court is not limited to any mathematically applied set of
factors. Id. The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge’s obser-
vation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. Id.
both the nature of the offense for which a defendant is being
196 	282 NEbRASkA REpORTS

sentenced and the defendant’s past criminal record are appro-
priate considerations in sentencing. Id.
The record of the sentencing hearing indicates that the
court considered the factors listed above, including Williams’
past criminal history, which the court recognized as being
“minimal,” and his record of law-abiding conduct. The court
specifically noted Williams’ “multiple years of service, both
as a law enforcement officer and as a United States Army
National Guard officer.” While the court noted that “[m]uch of
that service has been honorable,” it further noted that “obvi-
ously, a significant portion of it was not.” The court stated that
Williams took advantage of his position as a law enforcement
officer “in order to engage in an ongoing sexual relationship
with a child who was obviously vulnerable, not only by reason
of her age, but by reason of her circumstances, upbringing, and
very probably emotional and other disturbances.” The court
emphasized that Williams had taken advantage of his position
not just once but multiple times, as represented by the six inci-
dents that resulted in the convictions in this case and additional
uncharged incidents.
The court stated that its sentencing must reflect the multiple
breaches of trust that led to the offenses for which Williams
was convicted. The court also noted that Williams was “in need
of intensive sex offender treatment and therapy” under circum-
stances that were controlled and highly structured, which indi-
cated that a sentence of imprisonment was appropriate.
Our review of the record related to the sentencing indicates
that the court considered proper, relevant factors, that it did
not consider improper factors, and that the court had proper
reasons for the sentences it imposed. We therefore conclude
that the court did not abuse its discretion and did not impose
excessive sentences.
The Court Committed Plain Error When It Applied
the Credit for Time Served Against the
Sentence for Each Count.
In its brief, the State claims that the district court commit-
ted plain error when it granted Williams credit for time served
of 45 days against each of the five prison sentences for first
STATE v. WILLIAMS 	197
Cite as 282 Neb. 182

degree sexual assault. The State asserts that the court should
have applied the credit against only one sentence. The State
requests this court to modify the sentence to apply the 45-day
credit against only the first sentence imposed and to strike the
credits granted against the remaining sentences. We agree that
the court committed plain error.
At the sentencing hearing, the court stated that Williams
should be entitled to 45 days’ credit for time served and that
“[t]hat credit will be given on each count.” In the journal entry
on sentencing, the court ordered that Williams was entitled to
credit for time served against the sentences of imprisonment
“in the amount of 45 days each count.” The presentence inves-
tigation report indicates that Williams served a total of 45 days
prior to his sentencing.
[16] plain error may be found on appeal when an error
unasserted or uncomplained of at trial, but plainly evident from
the record, prejudicially affects a litigant’s substantial right
and, if uncorrected, would result in damage to the integrity,
reputation, and fairness of the judicial process. State v. Simnick,
279 Neb. 499, 779 N.W.2d 335 (2010).
[17] We note that Neb. Rev. Stat. § 83-1,106(1) (Reissue
2008) provides:
Credit against the maximum term and any minimum term
shall be given to an offender for time spent in custody as
a result of the criminal charge for which a prison sentence
is imposed or as a result of the conduct on which such a
charge is based. This shall specifically include, but shall
not be limited to, time spent in custody prior to trial, dur-
ing trial, pending sentence, pending the resolution of an
appeal, and prior to delivery of the offender to the custody
of the Department of Correctional Services, the county
board of corrections, or, in counties which do not have a
county board of corrections, the county sheriff.
In State v. Banes, 268 Neb. 805, 811-12, 688 N.W.2d 594, 599
(2004), we stated that under § 83-1,106, “an offender shall be
given credit for time served as a result of the charges that led
to the sentences; however, presentence credit is applied only
once.” The Nebraska Court of Appeals has noted:
198 	282 NEbRASkA REpORTS

Courts in other states, construing statutes similar to
§ 83-1,106, have uniformly held that “‘when consecutive
sentences are imposed for two or more offenses, periods
of presentence incarceration may be credited only against
the aggregate of all terms imposed: an offender who
receives consecutive sentences is entitled to credit against
only the first sentence imposed, while an offender sen-
tenced to concurrent terms in effect receives credit against
each sentence.’”
State v. Sanchez, 2 Neb. App. 1008, 1012-13, 520 N.W.2d 33,
37 (1994) (quoting Endell v. Johnson, 738 p.2d 769 (Alaska
App. 1987) (citations omitted)). See, also, State v. Eilola, 226
W. Va. 698, 704 S.E.2d 698 (2010) (citing Endell, supra, and
indicating that time served should be credited against aggregate
of minimum as well as aggregate of maximum of consecutive
sentences imposed).
Instead of crediting time served against each count as the
court did, the court in this case should have credited the 45
days served against only the first count, thereby crediting 45
days against the aggregate of the minimum and the aggregate
of the maximum sentences imposed. We therefore modify the
sentencing order to state that Williams is entitled to a credit
for time served in the amount of 45 days against the aggregate
of the minimum and the aggregate of the maximum sentences
of imprisonment.
CONCLUSION
We conclude that the district court did not abuse its discre-
tion when it denied Williams’ motion for new trial on each of
the bases asserted herein. We further conclude that the court
did not impose excessive sentences, but we modify the sen-
tencing order to state that Williams is entitled to a credit for
time served in the amount of 45 days against the aggregate
of the minimum and the aggregate of the maximum sentences
of imprisonment.
affirmed aS modified.
STATE v. WILLIAMS 	199
Cite as 282 Neb. 182