State v. Gibson , 302 Neb. 833 ( 2019 )


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    www.nebraska.gov/apps-courts-epub/
    05/31/2019 08:07 AM CDT
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    STATE v. GIBSON
    Cite as 
    302 Neb. 833
    State of Nebraska, appellant,
    v. Jason T. Gibson, appellee.
    ___ N.W.2d ___
    Filed April 12, 2019.     No. S-17-1272.
    1. Sentences: Appeal and Error. Whether an appellate court is reviewing
    a sentence for its leniency or its excessiveness, a sentence imposed by
    a district court that is within the statutorily prescribed limits will not
    be disturbed on appeal unless there appears to be an abuse of the trial
    court’s discretion.
    2. Sentences: Probation and Parole: Appeal and Error. When the State
    appeals from a sentence, contending that it is excessively lenient, an
    appellate court reviews the record for an abuse of discretion, and a grant
    of probation will not be disturbed unless there has been an abuse of
    discretion by the sentencing court.
    3. Sentences: Appeal and Error. There is not a different standard of
    review for sentences when the State appeals a sentence as excessively
    lenient or when a defendant appeals a sentence as excessive; an appel-
    late court reviews for an abuse of discretion in either case.
    4. Judgments: Appeal and Error. An abuse of discretion occurs when a
    trial court’s decision is based upon reasons that are untenable or unrea-
    sonable or if its action is clearly against justice or conscience, reason,
    and evidence.
    5. Sentences: Appeal and Error. The trial court’s sentencing determina-
    tion and an appellate court’s review of that determination for an abuse
    of discretion are not formulaic or simply a matter of doctrine.
    6. Sentences. The sentencing court is not limited in its discretion to any
    mathematically applied set of factors.
    7. ____. 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.
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    STATE v. GIBSON
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    302 Neb. 833
    8. ____. Evidence regarding a defendant’s life, character, and previous
    conduct, as well as prior convictions, is highly relevant to the determina-
    tion of a proper sentence.
    9. Sentences: Appeal and Error. It is not the function of an appellate
    court to conduct a de novo review of the record to determine whether a
    sentence is appropriate.
    10. Sentences. A sentence should fit the offender and not merely the crime.
    Petition for further review from the Court of Appeals, Pirtle,
    R iedmann, and Bishop, Judges, on appeal thereto from the
    District Court for Sarpy County, Stefanie A. M artinez, Judge.
    Judgment of Court of Appeals reversed, and cause remanded
    with directions.
    Phil Kleine, Deputy Sarpy County Attorney, for appellant.
    Donald L. Schense, of Law Office of Donald L. Schense,
    for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    The defendant was convicted of attempted sexual assault
    of a child in violation of 
    Neb. Rev. Stat. § 28-319.01
    (1)(b)
    (Reissue 2016). The presentence investigation report (PSI)
    indicates that the defendant believed the child to be 18 years
    old. The defendant has no criminal record. The question pre-
    sented in this appeal is whether the district court abused its
    discretion in sentencing the defendant to 5 years’ probation
    with 180 days of jail time as a condition of probation. The
    State asserts that the sentence was excessively lenient and
    involved inappropriate consideration of an irrelevant factor.
    The Nebraska Court of Appeals, in a split decision, agreed.
    We granted further review. We reverse the Court of Appeals’
    decision and remand the matter with directions to affirm the
    sentence of the district court.
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    STATE v. GIBSON
    Cite as 
    302 Neb. 833
    BACKGROUND
    Jason T. Gibson was initially charged with first degree
    sexual assault of a child in violation of § 28-319.01(1)(b),
    a Class IB felony which is punishable by 20 years’ to life
    imprisonment, with a mandatory minimum of 15 years’ impris-
    onment. In exchange for his plea of no contest, the State
    amended the charge to attempted first degree sexual assault of
    a child, in violation of § 28-319.01(1)(b) and 
    Neb. Rev. Stat. § 28-201
     (Cum. Supp. 2018), a Class II felony. A Class II
    felony is punishable by 1 to 50 years’ imprisonment, but no
    mandatory minimum is required. There was no agreement
    between the parties regarding their recommendations to the
    court as to sentencing.
    A violation of § 28-319.01(1)(b) occurs when an actor 25
    years of age or older subjects another person who is at least
    12 years of age but less than 16 years of age to sexual penetra-
    tion. As the factual basis for the crime, the State described that
    another person, DeArch Stubblefield, was prostituting out the
    victim, E.L., who was 15 years old. Between December 1, 2016,
    and January 31, 2017, Gibson picked up E.L. and Stubblefield
    and drove them to his house, where Gibson engaged in the
    sexual penetration of E.L. Money was given to Stubblefield
    by Gibson after the sexual intercourse.
    According to the PSI, Stubblefield, who was 18 years old,
    attended the same high school as E.L. He and E.L. were
    engaged in a sexual relationship for approximately 6 months
    when Stubblefield began seeking sexual encounters through
    “Craigslist.” Without consulting with E.L., Stubblefield decided
    to post on Craigslist that he and E.L. were looking for someone
    to have a “threesome with.” Stubblefield eventually told E.L.
    that he had arranged a sexual encounter for the two of them
    and asked her to participate. E.L. agreed, not knowing exactly
    what was going to happen.
    This began a series of three sexual encounters with three dif-
    ferent men, arranged by Stubblefield. During these encounters,
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    STATE v. GIBSON
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    302 Neb. 833
    Stubblefield directed E.L.’s actions and the men sexually pen-
    etrated E.L. Stubblefield also participated in the sexual activi-
    ties to varying degrees.
    Gibson was one of the men who responded to Stubblefield’s
    Craigslist posting. Gibson picked up E.L. and Stubblefield
    and drove them to his house, where the sexual penetration
    occurred. Gibson described that he believed that both E.L.
    and Stubblefield were 18 years old. According to Gibson
    and Stubblefield, the Craigslist posting stated that E.L. and
    Stubblefield were both 18 years old. Also, according to Gibson,
    E.L. and Stubblefield told him that E.L. was 18 years old.
    All communication leading up to the day of the sexual
    contact was between Gibson and Stubblefield. Gibson told
    Stubblefield that he did not wish to engage in a threesome
    and was only interested in the young woman. Stubblefield was
    in the room during the sexual penetration of E.L. by Gibson.
    There were conflicting reports as to Stubblefield’s involvement
    while in the room.
    After the sexual contact and before Gibson took E.L.
    and Stubblefield home, Stubblefield asked Gibson for $40.
    Stubblefield claimed he needed the money either to fix a
    tire on his car or to buy gasoline. Gibson gave the money to
    Stubblefield, who later split the money with E.L.
    The PSI showed that Gibson has no criminal record. A
    search of his electronic devices confiscated as part of the
    investigation failed to reveal any involvement in activities
    similar to those for which he was convicted, or any other
    crime. Gibson admitted to law enforcement that he had pre-
    viously engaged in at least one other sexual encounter and
    had chatted with people through other websites, but alleged
    that these activities were between consenting adults and not
    for money.
    Gibson has served for 16 years as a linguist in the U.S.
    Air Force with consistently exemplary performance reviews
    and numerous awards and decorations. Over 30 letters were
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    STATE v. GIBSON
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    submitted to the district court attesting to Gibson’s good char-
    acter and reputation. These letters described Gibson as a per-
    son of integrity and character who consistently puts others
    before himself. He was described as truthful, honest, dedicated,
    honorable, hardworking, good natured, and mild mannered.
    Clinical psychological evaluations concluded that Gibson was
    not classified as a pedophile. He participated in several psycho-
    logical assessments that concluded Gibson was at a low overall
    risk to reoffend.
    The PSI indicated that Gibson was upfront and honest
    with law enforcement from the beginning of the investigation.
    Gibson immediately accepted responsibility for his actions.
    Further, he expressed to the court that he was extremely
    remorseful for what E.L. and her family must be going through.
    The State argued for a period of incarceration, while defense
    counsel sought probation with no incarceration. Before pro-
    nouncing its sentence, the district court noted the severity of
    the crimes that had been committed against E.L. The court
    said that it was a case that “is extremely difficult for the Court,
    for the victim, for her family, and for the community.” The
    court continued:
    There is no sentence that I’ll be able to give to you that
    will make [E.L.] whole again. I can hope that the system
    does what it is designed to do, and in my reading of the
    presentence investigation report, it indicates to me that
    this . . . Stubblefield has, in large part, the majority of the
    responsibility, from the materials I’ve received. And my
    hope is that he — [E.L.] is given some sort of justice in
    that sentence, most significantly.
    Turning to mitigating factors, the district court noted that
    Gibson had demonstrated an appreciation for the seriousness
    of his actions and had accepted responsibility for the crime
    he committed.
    The court pronounced that Gibson would have to serve a
    term of incarceration at the county jail for 180 days and that
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    STATE v. GIBSON
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    302 Neb. 833
    “[t]here will be a term of probation for five years to be served
    upon completion of that jail time.” The subsequent written
    order of probation included a condition that Gibson serve
    180 days in the Sarpy County jail, and an order of commit-
    ment followed. We agree with the Court of Appeals’ majority
    opinion that this written sentence imposed probation in lieu
    of incarceration and imposed 180 days’ jail time as a valid
    condition of probation under the authority conferred by 
    Neb. Rev. Stat. § 29-2260
     (Reissue 2016). It was not a sentence
    to incarceration below the minimum set forth in 
    Neb. Rev. Stat. § 28-105
     (Reissue 2016). Neither party challenges that
    the written order controls and sets forth a statutorily valid
    sentence. To the extent that the district court appeared to
    pronounce at the sentencing hearing a period of incarceration,
    as opposed to jail time as a condition of probation, we agree
    that the written order controlled over the invalid orally pro-
    nounced sentence.1
    Besides 180 days in jail, the order of probation subjected
    Gibson to numerous other general and individualized condi-
    tions. Gibson was also subject to the Sex Offender Registration
    Act, 
    Neb. Rev. Stat. §§ 29-4001
     to 29-4014 (Reissue 2016).
    The State appealed Gibson’s sentence under 
    Neb. Rev. Stat. § 29-2321
     (Reissue 2016) as excessively lenient. The Court
    of Appeals, in a split decision, held that the court’s sentence
    was excessively lenient.2 The Court of Appeals reasoned that
    although the record demonstrated an unlikelihood that Gibson
    would reoffend, the district court’s decision to impose pro-
    bation in lieu of incarceration under § 29-2260(2) depreci-
    ated the seriousness of the crime. Furthermore, the Court of
    Appeals found that the district court had based its sentencing
    1
    Compare State v. Sims, 
    277 Neb. 192
    , 
    761 N.W.2d 527
     (2009), with State
    v. Sorenson, 
    247 Neb. 567
    , 
    529 N.W.2d 42
     (1995).
    2
    State v. Gibson, 
    26 Neb. App. 559
    , 
    921 N.W.2d 161
     (2018) (Bishop,
    Judge, dissenting).
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    302 Neb. 833
    decision in part on the impermissible and irrelevant factors
    of Stubblefield’s culpability and probable sentence for his
    involvement in the crime.
    We granted Gibson’s petition for further review.
    ASSIGNMENTS OF ERROR
    In his brief in support of further review, Gibson asserts
    that the Court of Appeals erred in (1) finding that the district
    court abused its discretion by imposing an excessively lenient
    sentence, (2) finding that the district court considered an irrel-
    evant factor when imposing its sentence, and (3) vacating the
    district court’s sentence and remanding the cause to the dis-
    trict court with directions that a different district court judge
    impose a greater sentence.
    STANDARD OF REVIEW
    [1] Whether an appellate court is reviewing a sentence for
    its leniency or its excessiveness, a sentence imposed by a dis-
    trict court that is within the statutorily prescribed limits will
    not be disturbed on appeal unless there appears to be an abuse
    of the trial court’s discretion.3
    ANALYSIS
    [2-4] When the State appeals from a sentence, contending
    that it is excessively lenient, this court reviews the record for
    an abuse of discretion, and a grant of probation will not be
    disturbed unless there has been an abuse of discretion by the
    sentencing court.4 There is not a different standard of review
    for sentences when the State appeals a sentence as excessively
    lenient or when a defendant appeals a sentence as excessive;
    an appellate court reviews for an abuse of discretion in either
    case.5 Whether an appellate court is reviewing a sentence for
    3
    State v. Kennedy, 
    299 Neb. 362
    , 
    908 N.W.2d 69
     (2018).
    4
    State v. Hoffman, 
    246 Neb. 265
    , 
    517 N.W.2d 618
     (1994).
    5
    
    Id.
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    its leniency or its excessiveness, a sentence imposed by a dis-
    trict court that is within the statutorily prescribed limits will
    not be disturbed on appeal unless there appears to be an abuse
    of the trial court’s discretion.6 An abuse of discretion occurs
    when a trial court’s decision is based upon reasons that are
    untenable or unreasonable or if its action is clearly against jus-
    tice or conscience, reason, and evidence.7
    In reviewing whether a sentencing court abused its discre-
    tion in imposing a sentence that was excessively lenient, we
    are guided by the factors set forth by 
    Neb. Rev. Stat. § 29-2322
    (Reissue 2016), as well as by the statutory guidelines set out
    for the direction of the sentencing judge in imposing or with-
    holding imprisonment.8
    Section 29-2322 provides that in determining whether the
    sentence imposed is excessively lenient, an appellate court
    shall have regard for:
    (1) The nature and circumstances of the offense;
    (2) The history and characteristics of the defendant;
    (3) The need for the sentence imposed:
    (a) To afford adequate deterrence to criminal conduct;
    (b) To protect the public from further crimes of the
    defendant;
    (c) To reflect the seriousness of the offense, to promote
    respect for the law, and to provide just punishment for the
    offense; and
    (d) To provide the defendant with needed educational
    or vocational training, medical care, or other correctional
    treatment in the most effective manner; and
    (4) Any other matters appearing in the record which the
    appellate court deems pertinent.
    6
    State v. Moore, 
    274 Neb. 790
    , 
    743 N.W.2d 375
     (2008).
    7
    State v. Spang, ante p. 285, 
    923 N.W.2d 59
     (2019).
    8
    See State v. Hoffman, 
    supra
     note 4 (citing § 29-2260).
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    Gibson was convicted of a Class II felony punishable by 1
    to 50 years’ imprisonment,9 but with no mandatory minimum.
    Section 29-2260(2) allowed the district court to impose a
    period of probation in lieu of incarceration upon its assessment
    of certain criteria set forth therein. Section 29-2260 provides
    in part:
    (2) 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.
    (3) The following grounds, while not controlling the
    discretion of the court, shall be accorded weight in favor
    of withholding sentence of imprisonment:
    (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;
    (c) The offender acted under strong provocation;
    (d) Substantial grounds were present tending to excuse
    or justify the crime, though failing to establish a defense;
    9
    See § 28-105(1).
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    (e) The victim of the crime induced or facilitated com-
    mission of the crime;
    (f) The offender has compensated or will compensate
    the victim of his or her crime for the damage or injury the
    victim sustained;
    (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.
    (4) When an offender who has been convicted of a
    crime is not sentenced to imprisonment, the court may
    sentence him or her to probation.
    The Court of Appeals held that imprisonment of Gibson is
    necessary to reflect the seriousness of the offense, to promote
    respect for the law, and to provide just punishment for the
    offense. The Court of Appeals also held that the district court
    based its sentencing decision on the improper consideration of
    Stubblefield’s greater culpability. We agree with the majority
    opinion’s assessment of the severity of the crime committed
    against E.L. Nevertheless, in light of the evidence pertain-
    ing to the numerous other relevant factors under the district
    court’s consideration at sentencing, we cannot conclude that
    Gibson’s sentence was untenable, unreasonable, or clearly
    against justice or conscience, reason, and evidence. Further,
    we find that the district court did not impermissibly factor into
    its sentencing decision the relative culpability of Stubblefield
    and Gibson.
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    [5-8] While certain guidelines are set forth by statute, neither
    the trial court’s sentencing determination nor our review of that
    determination for an abuse of discretion is formulaic or simply
    a matter of doctrine.10 The sentencing court is not limited in its
    discretion to any mathematically applied set of factors.11 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 circum-
    stances surrounding the defendant’s life.12 Evidence regarding
    a defendant’s life, character, and previous conduct, as well as
    prior convictions, is highly relevant to the determination of a
    proper sentence.13
    [9] It is not the function of an appellate court to conduct a de
    novo review of the record to determine whether a sentence is
    appropriate.14 The standard is not what sentence we would have
    imposed.15 If it were, we might reach a different result.
    This was a very serious crime. The PSI contains little to
    indicate that E.L. shared Stubblefield’s enthusiasm for experi-
    mentation or wished for her body to be marketed and con-
    trolled by another. More to the point, a 15-year-old is not of
    a legal age to consent to such activities. A person of that age
    who is subjected to sexual penetration by an adult is a victim
    of sexual assault.
    Whether or not Gibson was aware of it, E.L. was being
    trafficked by Stubblefield, who both arranged the contact with
    adult men and directed E.L.’s activities with those men. There
    is no justification for Gibson’s ignorance of this abuse. Gibson
    10
    See State v. Thompson, 
    15 Neb. App. 764
    , 
    735 N.W.2d 818
     (2007).
    11
    State v. Mora, 
    298 Neb. 185
    , 
    903 N.W.2d 244
     (2017).
    12
    State v. Ralios, 
    301 Neb. 1027
    , 
    921 N.W.2d 362
     (2019).
    13
    See 
    id.
     See, also, e.g., State v. Van, 
    268 Neb. 814
    , 
    688 N.W.2d 600
     (2004);
    State v. Strohl, 
    255 Neb. 918
    , 
    587 N.W.2d 675
     (1999).
    14
    State v. Harrison, 
    255 Neb. 990
    , 
    588 N.W.2d 556
     (1999).
    15
    State v. Thompson, supra note 10.
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    arranged through Craigslist to have sex with a young woman
    who looked young enough to prompt him to seek assurances
    of her actual age. Gibson made all the arrangements for this
    sexual encounter with another stranger who advertised the
    young woman and alleged to speak for her. This should have
    alerted Gibson to the potential serious criminal implications of
    his continued participation.
    [10] Still, the seriousness of the crime committed against
    E.L., which weighs in favor of imprisoning Gibson under statu-
    tory guidelines setting forth a minimum period of imprison-
    ment of 1 year, does not, by itself, lead to the conclusion that
    the district court abused its discretion in sentencing Gibson to
    5 years’ probation in lieu of incarceration. The crime commit-
    ted by Gibson was serious, and that fact should not be dimin-
    ished. However, a sentence should fit the offender and not
    merely the crime.16
    In other cases involving Class II felonies of first degree
    sexual assault and sexual assault of a child, a sentence of 5
    years’ probation with strict and demanding terms has been
    held not to be excessively lenient when the defendants were
    considered to be neither pedophiles nor sexual predators, had
    generally otherwise been law-abiding citizens, were remorse-
    ful, and were at a low risk to reoffend.17 This is in contrast to
    State v. Hoffman,18 in which we found the sentence of 5 years’
    probation for the defendant convicted of first degree sexual
    assault of a child was excessively lenient given the defend­
    ant’s lengthy history of other sexual assaults upon the vic-
    tim, which included violence; two prior theft convictions; an
    evaluation that indicated the defendant was at risk of engaging
    in additional criminal conduct during a period of probation;
    16
    State v. Harrison, 
    supra note 14
    .
    17
    See, State v. Antoniak, 
    16 Neb. App. 445
    , 
    744 N.W.2d 508
     (2008); State v.
    Thompson, supra note 10.
    18
    State v. Hoffman, 
    supra note 4
    .
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    and the fact that the defendant had expressed no remorse for
    his actions.
    The PSI demonstrates that before this incident, Gibson led
    an exemplary life. He served in the U.S. Air Force with numer-
    ous awards and decorations. His family and friends attested
    to his good character. And the court was able to evaluate
    Gibson’s character during its observations of Gibson through-
    out the judicial process. Gibson has no criminal record, and
    his psychological assessment shows a low risk to reoffend.
    Though he was wrong and should have known better, there
    was no evidence that Gibson actually contemplated at the
    time of his actions that he was committing a crime or causing
    anyone harm. Gibson was upfront and cooperative with law
    enforcement from the beginning of the investigation and was
    by all accounts shocked when he learned E.L.’s real age. He
    expressed that he was ashamed and extremely remorseful for
    what E.L. and her family were going through as a result of
    his crime.
    “While there is a temptation on a visceral level to conclude
    that anything less than incarceration depreciates the seriousness
    of crimes [involving sexual assault of a child], it is the func-
    tion of the sentencing judge, in the first instance, to evaluate
    the crime and the offender.”19 As stated, evidence regarding a
    defendant’s life, character, and previous conduct, as well as
    prior convictions, is highly relevant to the determination of a
    proper sentence.20 The district court’s sentence was within the
    statutorily prescribed limits, and the district court did not abuse
    its discretion.
    As for the conclusion by the majority opinion of the Court
    of Appeals that the district court based its decision on irrel-
    evant considerations, we disagree that the district court’s
    19
    State v. Thompson, supra note 10, 15 Neb. App. at 787-88, 735 N.W.2d
    at 835.
    20
    See cases cites supra note 13.
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    comments regarding Stubblefield’s punishment improperly
    influenced its sentencing decision. The district court appeared
    to be merely commenting on the severity of all the crimes
    against E.L. The court noted that E.L. deserved justice not
    just for the crime committed by Gibson, but also for crimes
    committed against her by Stubblefield. While the court indi-
    cated its belief that Stubblefield had greater responsibility
    in the overall scheme of the exploitation of E.L., there is no
    indication that the court reduced Gibson’s punishment for his
    crime because Stubblefield might justly be punished more
    severely for his own crimes that played an important role in
    the abuse.
    The sentence imposed by the district court was lenient,
    but we cannot conclude that the court abused its discretion
    by issuing a sentence that was excessively lenient. In light of
    all the relevant sentencing considerations, the sentence was
    not untenable, unreasonable, or clearly against justice or con-
    science, reason, and evidence.
    CONCLUSION
    For the foregoing reasons, we reverse the Court of Appeals’
    decision and remand the matter with directions to affirm the
    sentence of the district court.
    R eversed and remanded with directions.