State v. Anderson

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Nebraska Court of Appeals Advance Sheets
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STATE v. ANDERSON
Cite as 33 Neb. App. 131
State of Nebraska, appellee, v.
Courtney L. Anderson, appellant.
___ N.W.3d ___
Filed August 20, 2024. 	No. A-23-638.
1. 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.
2. Sentences. When imposing a sentence, a sentencing judge should con-
sider 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.
3. ____. The appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the defendant’s
demeanor and attitude and all the facts and circumstances surrounding
the defendant’s life.
4. Sentences: Appeal and Error. When a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether the sentencing court abused its discretion in
considering and applying the relevant factors as well as any applicable
legal principles in determining the sentence imposed.
Appeal from the District Court for Lancaster County: Ryan
S. Post, Judge. Affirmed.
Kristi J. Egger, Lancaster County Public Defender, and Todd
C. Molvar for appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:27 AM CDT

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STATE v. ANDERSON
Cite as 33 Neb. App. 131
Moore, Bishop, and Arterburn, Judges.
Bishop, Judge.
INTRODUCTION
Courtney L. Anderson pled no contest to one count of
misdemeanor child abuse. The charge stemmed from an inci-
dent at a daycare where Anderson worked. In the course of
cleaning tables in a classroom after the children had snacks,
Anderson used a spray bottle three separate times to spray
its contents in the direction of a minor child’s face. Anderson
claimed the bottle contained only water. The daycare’s owner
reported that it contained a mixture of water and dish soap.
Anderson had no criminal history, other than a traffic violation
for speeding. A week before sentencing, Anderson gave birth
to a son by cesarean section and was on maternity leave from
her employment at a fitness center. The Lancaster County
District Court sentenced her to 240 days in jail; Anderson’s
request for house arrest because her newborn was too young
for daycare was denied. On appeal, Anderson claims that her
sentence is excessive.
Although we conclude that a sentence of probation may
have been more appropriate based on an examination of
the relevant grounds listed in Neb. Rev. Stat. § 29-2260(3)
(Reissue 2016), we cannot say that the district court abused its
discretion by placing significant weight on Anderson’s failure
to take responsibility for her actions, along with the nature of
the offense. Further, although the Nebraska Legislature has
provided for a presumption of probation for Class IV felonies
absent substantial and compelling reasons why an offender
could not effectively and safely be supervised in the com-
munity, see Neb. Rev. Stat. § 29-2204.02(2) (Reissue 2016),
there is no such presumption for Class I misdemeanors. We
therefore affirm Anderson’s conviction and sentence.
BACKGROUND
On May 17, 2023, the State filed an information alleg-
ing that on December 9, 2022, Anderson “knowingly and

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STATE v. ANDERSON
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intentionally” caused or permitted a minor child, J.W., to be
(a) placed in a situation that endangered his physical health, (b)
cruelly punished, or (c) deprived of necessary care. Anderson
was charged with one count of child abuse, a Class IIIA fel-
ony, pursuant to Neb. Rev. Stat. § 28-707 (Cum. Supp. 2022).
On June 16, 2023, the State filed an amended information,
alleging that Anderson negligently caused or permitted J.W.
to be placed in a situation that endangered his physical health.
The amended information reduced the child abuse charge from
a Class IIIA felony to a Class I misdemeanor, pursuant to the
same statute. At a hearing that same day, Anderson, pursu-
ant to a plea agreement, pled no contest to the charge in the
amended information. The State provided the following factual
basis for the plea:
[T]he owner of the . . . Child Development Center and
Daycare . . . reported to the Lancaster County Sheriff’s
Office that she had observed a suspected child abuse,
which occurred on December 9th of 2022.
[The owner] stated that after that date she had received
a call from . . . a parent of a child who attends the day-
care, indicating that that child had witnessed a teacher
spray another child with a spray bottle.
[The 	owner] 	reviewed 	the 	video 	surveillance 	and
found that at 9:28 a.m., she observed the defendant, . . .
Anderson, an employee at the daycare, place a child born
in 2019, a minor child with the initials J.W. in a corner
on a mat, which appeared to be for disciplinary purposes.
[Anderson] then obtained a spray bottle which contained
a soap and water cleaning solution and sprayed the child,
J.W. in the face. [Anderson] cleaned a table with the
solution and then returned to spray J.W. in the face again.
[Anderson] cleaned an additional table with the spray
bottle solution before returning a third time to spray J.W.
in the face again.
J.W. turned his head and placed his hand in front of
his face as a result of the soapy solution being sprayed

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in his face. He had red watery burning eyes as a result
of being sprayed in the face. His mother expressed that
J.W.’s eyes were bothering him the night of the incident
as well.
[Anderson] was contacted and stated that she had been
spraying a toy barn in the daycare that was near J.W.
And she stated the barn made a noise when the bottle
was sprayed.
This was inconsistent with the officer’s view of the
video surveillance from it.
Those events did occur in Lancaster County, Nebraska.
The district court accepted Anderson’s plea of no contest to
the charge in the amended information and found her guilty of
the same. The case was set for sentencing.
The sentencing hearing took place on August 16, 2023; we
will set forth the arguments and comments made at that hear-
ing below. The district court sentenced Anderson to 240 days
in jail, with 2 days’ credit for time served.
Anderson appeals.
ASSIGNMENT OF ERROR
Anderson assigns that the sentence imposed by the district
court was excessive and constitutes an abuse of discretion.
STANDARD OF REVIEW
[1] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Lierman, 305 Neb. 289, 940 N.W.2d
529 (2020).
ANALYSIS
State’s Motion for Summary Disposition
After Anderson filed her brief on appeal, the State filed a
motion requesting that this court summarily affirm Anderson’s
conviction and sentence pursuant to Neb. Ct. R. App. P.
§ 2-107(B)(2) (rev. 2022) (questions presented for review
are so unsubstantial as not to require argument). This is a

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STATE v. ANDERSON
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common practice by the State in criminal appeals when the
only error assigned on appeal is that the sentencing court
abused its discretion by imposing an excessive sentence.
And it is often the case that this court will summarily affirm
the judgment of the trial court given the limitations of an
abuse of discretion standard of review, as established by the
Nebraska Supreme Court. See State v. Morton, 310 Neb. 355,
966 N.W.2d 57 (2021) (Cassel, J., concurring) (rare exception
that sentence within statutory limits is excessive). The State’s
request in this instance was declined.
Anderson’s Conviction and Sentence
Anderson was convicted of one count of misdemeanor child
abuse. There was no allegation of serious bodily injury. Section
28-707 states, in relevant part:
(1) A person commits child abuse if he or she know-
ingly, intentionally, or negligently causes or permits a
minor child to be:
(a) Placed in a situation that endangers his or her life
or physical or mental health;
. . . .
(3) Child abuse is a Class I misdemeanor if the offense
is committed negligently and does not result in serious
bodily injury as defined in section 28-109 [bodily injury
which involves substantial risk of death or serious per-
manent disfigurement or protracted loss or impairment of
function of any part or organ of body] or death.
(4) Child abuse is a Class IIIA felony if the offense
is committed knowingly and intentionally and does not
result in serious bodily injury as defined in section 28-109
or death.
As indicated previously, the amended information alleged that
Anderson negligently caused or permitted J.W. to be placed
in a situation that endangered his physical health, making the
offense a Class I misdemeanor. A Class I misdemeanor is pun-
ishable by up to 1 year of imprisonment to be served in the

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county jail, a $1,000 fine, or both. See Neb. Rev. Stat. § 28-106
(Reissue 2016). The district court sentenced Anderson to 240
days in jail. Anderson claims that the sentence imposed by the
court was excessive and constitutes an abuse of discretion.
Since the sentence was within the statutory range for a Class I
misdemeanor, we review the court’s sentencing determination
only for an abuse of discretion.
Sentencing Considerations
[2,3] 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 amount of violence involved in the com-
mission of the crime. State v. Lierman, supra. The appropriate-
ness 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 sur-
rounding the defendant’s life. Id.
Anderson was 30 years old at the time of sentencing.
According 	to 	the 	presentence 	report 	(PSR) 	submitted 	on
August 9, 2023, Anderson was single but was living with her
partner of 10 years and their 6-year-old child. At the time of
the report, Anderson was pregnant with their second child.
Anderson obtained an associate degree in early childhood
education in 2015. She had been working at a fitness center
since January 2023; her employer at the fitness center indi-
cated that Anderson was reliable, hardworking, and respon-
sible. Anderson previously worked at the daycare (where this
offense occurred) for 7 months but was fired because of the
reported incident. Prior to that, Anderson worked at a different
daycare for many years; what appears to be a reference letter
from that previous employer dated just prior to the spray bottle
incident indicates that Anderson was “reliable and punctual,”
“worked hard,” was “flexible and willing to help,” and had a
“caring personality.”

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STATE v. ANDERSON
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Other than the current offense, Anderson’s criminal history
includes only one speeding violation, which occurred in 2016
and resulted in a $25 fine.
The law enforcement reports contained in the PSR provide
additional information related to the current offense. They
indicate that J.W.’s mother also worked at the same daycare
as Anderson. Both the daycare owner and J.W.’s mother were
reviewing the video of the incident when law enforcement
arrived to investigate. J.W.’s mother was asked if she “wished”
for J.W. “to be the victim of child abuse” and she stated that
she did. The mother indicated that J.W.’s eyes “were red,
watery, and burned from the solution being sprayed in them
the evening after the incident.” J.W.’s mother was asked to
provide a picture of J.W.’s eyes the next day. (We note that
the picture included in the PSR does not reveal any redness or
irritation in or around J.W.’s eyes.) A couple days later, contact
was made with the daycare owner to collect the spray bottle
used during the incident. The bottle was filled “approximately
3/4’s the way full with a clear fluid” that the daycare owner
described as “Dawn Dish Soap and water.”
The law enforcement reports indicate that Anderson denied
intentionally spraying the child in the face. However, she
acknowledged there was a possibility he may have been
sprayed when she was attempting to make the children laugh
by spraying the bottle near a toy barn that made noise when
sprayed. Her statement in the PSR indicates that the toy barn
had been making noises because “‘its batteries were dying’”
and that when she walked past it, the children thought she was
“‘magically setting it off.’” After redirecting J.W., she was
cleaning a table when a child suggested she spray water by it
to see if it would set it off, and it did, so she was asked to do
it a couple more times. During her PSR interview, she reported
that the bottle contained only water and that she “‘wasn’t
cautious of [her] surroundings.’” She stated, “‘It was a huge
misunderstanding that turned very serious.’”

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STATE v. ANDERSON
Cite as 33 Neb. App. 131
Our review of the daycare video, which has no audio,
reveals the following. At about 9:24 a.m., Anderson is sitting
at her desk while the children are having snacks at tables. J.W.
is interacting with another child, and he can be seen suck-
ing his thumb and loitering around the coat lockers near his
table. Anderson heads toward J.W., and he immediately sits
back in his chair. It appears the children are then directed to
stop what they are doing and head toward a large colorful
floor mat. J.W. goes to the mat area and is seen playing with
a toy on top of a counter next to the mat. At 9:28:09 a.m.,
Anderson takes J.W.’s arm and sits him down in the corner on
the mat. J.W. immediately appears to start crying (throws his
head back with his mouth open); one child and then another
child start covering their ears. This is before Anderson sprays
anything in J.W.’s direction. At 9:28:27 a.m., Anderson walks
across the mat and sprays the bottle from a couple feet away
toward J.W. as she walks toward the tables. J.W. puts his
head down in reaction and briefly puts his right fist near his
right eye. Anderson sprays a table, then returns to the edge
of the mat where another child is sitting at 9:28:39 a.m. and
reaches forward to spray J.W. again from a couple feet away;
he turns away. There is no wiping motion by J.W. after this
spray. Anderson goes to spray another table, then walks across
the mat and sprays J.W. again at 9:28:52 a.m. from about a
foot away. J.W. briefly puts his head down and then sucks his
thumb; no wiping of the face is seen.
The probation officer conducted a “Level of Service/Case
Management Inventory.” With a “score of six” on the inven-
tory, Anderson was assessed as an overall low risk to reof-
fend. She scored as a medium risk in the criminogenic risk
factor domains for leisure/recreation and procriminal attitude;
a low risk in the domains for family/marital and antiso-
cial patterns; and a very low risk in the domains for crimi-
nal history, education/employment, companions, and alcohol/
drug problems.
The probation officer stated:

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STATE v. ANDERSON
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Anderson described the present offense as a misunder-
standing and the video that depicts the present offense
looks worse than it was. She stated at the time of the pres-
ent offense, she was spraying at a toy that the children
were being entertained with and she was not cautious
of her surroundings. She stated she had no ill intentions
during the time; however, . . . Anderson did appear to be
remorseful.
Included in the PSR were seven letters in support of
Anderson. Among the letters was one from a parent of a
child at the daycare when the current offense occurred; the
parent wrote that he had “been incredibly impressed with
[Anderson’s] level of professionalism, her dedication to her
job, and exceptional caregiving skills.” Anderson’s former
employer at a different daycare wrote that Anderson’s “car-
ing personality and demonstrated common sense make her a
great choice for working with your children.” Three letters
were written by Anderson’s former coworkers: one wrote that
Anderson “was always patient, compassionate, and nurturing
with the children under her care, and she worked tirelessly to
create a safe and welcoming environment for them to learn
and grow”; another wrote that Anderson “was very patient and
attentive with the children she cared for” and that Anderson
had “been an outspoken advocate in the past when children
were being mistreated.”
Also included in the PSR was a letter written by the owner
of the daycare where Anderson’s current offense occurred. The
owner wrote:
[Anderson] has a habit of never taking responsibility for
her actions and will get very confrontational and argu-
mentative when provided with suggestions on how to bet-
ter do her job. We had notified [Anderson] on Monday,
December 5 th that she would be removed as the Lead
Preschool Teacher at the end of that week due to her
failure to properly follow her job description and teach

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the children in her care. The incident that she is being
sentenced for occurred on Friday, December 9 th.
. . . .
In conclusion, I want to express my disappointment
that [Anderson] was allowed to plea this charge down
from a felony. . . . The Lancaster County Sheriff’s
Deputy that responded to [the daycare] initially stated
that he would be ticketing [Anderson] for a misdemeanor.
After leaving [the] facility, he notified me that he reread
the statutes, and determined that her actions constituted
a felony charge. As a result of her arrest . . . numerous
news stations picked up the story and began harassing
my employees and daycare families. . . . My staff were
scared to leave the building for their breaks. We kept
children locked up inside the building for fear of who
was lurking in our parking lot. It was a very stressful and
scary time for all of us. . . . It upsets me that my busi-
ness has been viewed as the “bad guy” in all of this mess.
No one will remember . . . Anderson’s name in a few
months, but they will remember that [the daycare] had
an employee that abused children. Now that employee is
being allowed to walk away with just a slap on the wrist.
There are days that I regret turning her into authorities
because my business is the one that had to suffer with the
consequences of [Anderson’s] actions.
Sentencing Hearing
At the sentencing hearing, the State said that when deter-
mining the sentence, the district court should take into consid-
eration that Anderson “still does not accept any responsibility
for this offense” and “is still sticking to this story that this toy
barn was making this noise and making the children laugh.”
The State argued that the video “tells a very different story
than what . . . Anderson is portraying.”
Anderson’s counsel noted that Anderson had only one
prior speeding ticket on her criminal history, “[t]hat’s it,” and

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STATE v. ANDERSON
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“[s]he’s not a risk to reoffend.” Counsel stated that Anderson
goes to weekly counseling. Additionally, she “just recently
gave birth to a new child . . . within the past week.” Counsel
said that Anderson was asking for a term of probation, and
counsel saw no reason why Anderson could not successfully
complete probation. Counsel stated that if the district court
was considering a jail sentence, then it should also consider
Anderson’s current family situation and allow her to apply
for house arrest and defer any jail sentence imposed. Counsel
noted that Anderson’s newborn “isn’t eligible for childcare”
due to the child’s age.
The district court asked Anderson if she had anything to say
before sentence was imposed. Anderson initially replied, “I
think I’ve said everything that I have to say, Your Honor.” She
subsequently also informed the court about her recent cesar-
ean section and that she was in counseling “to better [herself]
as a person.” She noted that she was nursing her newborn and
that he could not be placed in daycare for 6 weeks because
“childcare doesn’t take anybody under six weeks.”
The district court stated that it had read and reviewed the
PSR, and had considered the comments of Anderson’s counsel,
the character letters, and the relevant statutory factors. As to
the current offense, the court said:
I certainly understand a lapse in judgment. And I also
understand being frustrated with young children. But, the
— we got more than problem [sic] going on here. You’ve
taken no responsibility for what happened. I watched the
video, I think, five times. I watched it two or three times,
and then I read your information, your letter, and then I
watched it again at least twice to see if it was consistent
with your story. And it’s just not.
It — it’s kind of astounding to me that someone with
your history, which is — which has a good history, is
doubling down on this. And you sprayed the child in
the face three times. Nothing — it’s just — it’s very

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frustrating to me that we’re in this situation. It should not
have happened.
And you violated the trust of the child in your care, the
parents of the child. I can’t even imagine how confused
the other children were, the way they were lined up and
they could see the incident.
Thankfully, one of the other children said something to
their parents and that, you know, thankfully, the preschool
owner acted right away and reported it. . . .
It’s a lapse in judgment, but it’s completely unacceptable.
The court stated that “at the end of the day, it is a very serious
offense.” It then sentenced Anderson as previously set forth.
Arguments on Appeal
[4] In her brief on appeal, Anderson claims the district court
abused its discretion by imposing an excessive sentence, and
she submits that probation or a lesser term of imprisonment
would have been a fair and just sentence. She directs us to
Neb. Rev. Stat. § 29-2308(1) (Reissue 2016), which states,
in part:
In all criminal cases that now are or may hereafter be
pending in the Court of Appeals or Supreme Court, the
appellate court may reduce the sentence rendered by
the district court against the accused when in its opin-
ion the sentence is excessive, and it shall be the duty
of the appellate court to render such sentence against
the accused as in its opinion may be warranted by the
evidence.
The Nebraska Supreme Court has construed this statutory
language to mean that an appellate court “‘may’ reduce the
sentence rendered by the district court ‘when in its opinion
the sentence is excessive.’” State v. Morton, 310 Neb. 355,
365, 966 N.W.2d 57, 66 (2021). However, when a sentence
is imposed within the statutory limits, “the appellate court
must determine whether a sentencing court abused its discre-
tion in considering and applying the relevant factors as well
as any applicable legal principles in determining the sentence

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to be imposed.” Id. at 365-66, 966 N.W.2d at 66. In State
v. Morton, supra, this court reduced one of the defendant’s
sentences, finding that the trial court abused its discretion as
to that sentence; however, on petition for further review, the
Supreme Court reversed our decision. As pointed out by the
concurrence in Morton, the Supreme Court “has left the door
ajar—however slightly. It has not foreclosed any sentence
within statutory limits from being excessive, but it strongly
[has] suggest[ed] it is a rare exception.” 310 Neb. at 375,
966 N.W.2d at 71 (Cassel, J., concurring) (internal quotation
marks omitted).
Citing to § 29-2260(2), Anderson further argues that “[i]f
mandatory imprisonment is not specifically required, the court
may withhold a sentence of imprisonment, unless the court
finds imprisonment is necessary for [the] protection of the
public.” Brief for appellant at 11. Section 29-2260(2) provides:
Whenever a court considers sentence for an offender
convicted of either a misdemeanor or a felony for which
mandatory or mandatory minimum imprisonment is not
specifically required, the court may withhold sentence
of imprisonment unless, having regard to the nature and
circumstances of the crime and the history, character, and
condition of the offender, the court finds that imprison-
ment of the offender is necessary for protection of the
public because:
(a) The risk is substantial that during the period of
probation the offender will engage in additional criminal
conduct;
(b) The offender is in need of correctional treatment
that can be provided most effectively by commitment to a
correctional facility; or
(c) A lesser sentence will depreciate the seriousness of
the offender’s crime or promote disrespect for law.
Section 	29-2260(3) 	goes 	on 	to 	list 	various 	“grounds,”
which “while not controlling the discretion of the court, shall
be accorded weight in favor of withholding [a] sentence of

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imprisonment” by a sentencing court. The grounds listed in
§ 29-2260(3) that are most relevant here include:
(a) The crime neither caused nor threatened serious
harm;
(b) The offender did not contemplate that his or her
crime would cause or threaten serious harm;
. . . .
(g) The offender has no history of prior delinquency
or criminal activity and has led a law-abiding life for
a substantial period of time before the commission of
the crime;
(h) The crime was the result of circumstances unlikely
to recur;
(i) The character and attitudes of the offender indicate
that he or she is unlikely to commit another crime;
(j) The offender is likely to respond affirmatively to
probationary treatment; and
(k) Imprisonment of the offender would entail exces-
sive hardship to his or her dependents.
Anderson argues that the district court “failed to properly
consider [her] mentality, the fact that the sentence imposed
would entail excessive hardship to [her] dependents, [her]
record of law-abiding conduct, and the possibility of rehabilita-
tion.” Brief for appellant at 9. She notes that she had worked
in childcare since 2010 and that “[i]n that time, her coworkers
and parents of the children she cared for trusted and respected
[her,] as demonstrated by the seven character letters in her
[PSR].” Id. at 13.
In considering the relevant sentencing factors, the district
court specifically mentioned Anderson’s mentality and record
of law-abiding conduct, and it stated that it understood what
was currently going on in her life, including the fact that she
had just had a baby. However, the court was troubled that
Anderson had taken “no responsibility for what happened.”
The court watched the video multiple times “to see if it was
consistent with [Anderson’s] story,” and it was “just not.”

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While noting Anderson’s “good history,” the court was con-
cerned that Anderson was “doubling down on this.” It pointed
out that Anderson “sprayed the child in the face three times,”
and the court stated that “it’s very frustrating to [the court]
that we’re in this situation. It should not have happened.”
When applying the grounds listed under § 29-2260(3) as set
forth above to Anderson, many of the considerations weighed
in favor of withholding imprisonment. Anderson did not con-
template that her action would cause or threaten serious harm,
nor did it do so; Anderson has no prior criminal history, other
than a traffic violation, and she has led a law-abiding life;
Anderson would likely respond affirmatively to probationary
treatment; and imprisonment would cause excessive hardship
to her children, although the children’s father would be avail-
able to them. Additionally, imprisonment of Anderson was not
necessary for the protection of the public. See § 29-2260(2).
Based upon these statutory factors, a sentence of probation
could have been appropriate.
However, it appears that the district court was very troubled
by Anderson’s failure to take responsibility for her actions, as
well as the nature of the offense. Anderson’s unwillingness
to acknowledge her actions go to her character and attitude
and may be perceived as an indicator for future poor judg-
ment, even if these particular circumstances are unlikely to
recur. We agree with the court that the daycare video does
not support Anderson’s version of the incident. It may have
benefited Anderson to simply acknowledge a lapse in judg-
ment. No serious harm was done to J.W.; however, spraying a
mixture of water and dish soap in the direction of his face was
wrong. While imprisonment of Anderson may not have been
necessary for the protection of the public, the district court
considered this a “very serious offense.” It pointed out that
Anderson brought “a lot of scrutiny” onto the daycare due to
“everything” she did, and “nothing they did.”
Although we cannot say that the district court abused
its 	discretion, 	this 	court 	would 	have 	preferred 	to 	see 	a

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sentence of probation in view of most of the relevant grounds
under § 29-2260(3) favoring the withholding of incarcera-
tion. However, like the district court, we are troubled by
Anderson’s unwillingness to simply accept responsibility for
her wrongful behavior. Whether Anderson’s unwillingness to
be truthful about the spray bottle incident should override the
§ 29-2260(3) factors that weighed against incarceration is a
discretionary determination best left to the sentencing court.
See State v. Lierman, 305 Neb. 289, 940 N.W.2d 529 (2020)
(appropriateness of sentence is necessarily subjective judg-
ment and includes sentencing judge’s observation of defend-
ant’s demeanor and attitude). Therefore, although this court
views the record and applicable law to favor probation, we
cannot say the district court abused its discretion by ordering
240 days of jail time.
No Presumption of Probation
For the sake of completeness, we note that there is a presump-
tion of probation for Class IV felonies, see § 29-2204.02(2),
but there is no such presumption for Class I misdemeanors.
Under § 29-2204.02(2), the sentencing court shall impose a
sentence of probation for a Class IV felony unless there are
substantial and compelling reasons that community supervi-
sion will not be an effective and safe sentence. See State v.
Baxter, 295 Neb. 496, 888 N.W.2d 726 (2017). In the present
case, if the presumption of probation was applicable for this
Class I misdemeanor like it is for a Class IV felony, the record
would not likely have demonstrated substantial and compel-
ling reasons to overcome the presumption of probation. It is
curious that the Legislature has chosen to give a presumption
of probation for more serious felony offenses, but not for
lesser misdemeanor offenses.
CONCLUSION
For the reasons set forth above, we affirm Anderson’s con-
viction and sentence.
Affirmed.