State v. Greer , 312 Neb. 351 ( 2022 )


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    - 351 -
    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    STATE V. GREER
    Cite as 
    312 Neb. 351
    State of Nebraska, appellee, v.
    Christina M. Greer, appellant.
    ___ N.W.2d ___
    Filed September 2, 2022.   No. S-21-601.
    1. Jury Instructions: Appeal and Error. Whether a jury instruction is
    correct is a question of law, regarding which an appellate court is obli-
    gated to reach a conclusion independent of the determination reached
    by the trial court.
    2. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
    the record de novo to determine whether a trial court has abdicated its
    gatekeeping function when admitting expert testimony.
    3. ____: ____: ____. When the trial court has not abdicated its gatekeeping
    function when admitting expert testimony, an appellate court reviews
    the trial court’s decision to admit or exclude the evidence for an abuse
    of discretion.
    4. Sentences: Appeal and Error. A sentence imposed within the statutory
    limits will not be disturbed on appeal in the absence of an abuse of dis-
    cretion by the trial court.
    5. Judges: Words and Phrases. A judicial abuse of discretion exists
    only when the reasons or rulings of a trial judge are clearly untenable,
    unfairly depriving a litigant of a substantial right and denying a just
    result in matters submitted for disposition.
    6. Jury Instructions: Appeal and Error. Jury instructions are subject
    to harmless error review, and an erroneous jury instruction requires
    reversal only if the error adversely affects the substantial rights of the
    complaining party.
    7. Jury Instructions: Proof: Appeal and Error. In an appeal based upon
    a claim of an erroneous jury instruction, the appellant has the burden
    to show that the questioned instruction was prejudicial or otherwise
    adversely affected a substantial right of the appellant.
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    Nebraska Supreme Court Advance Sheets
    312 Nebraska Reports
    STATE V. GREER
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    312 Neb. 351
    8. Rules of Evidence: Expert Witnesses. Four preliminary questions
    must be answered in order to determine whether an expert’s testi-
    mony is admissible: (1) whether the witness qualifies as an expert
    pursuant to 
    Neb. Rev. Stat. § 27-702
     (Reissue 2016); (2) whether
    the expert’s testimony is relevant; (3) whether the expert’s testimony
    will assist the trier of fact to understand the evidence or determine
    a controverted factual issue; and (4) whether the expert’s testimony,
    even though relevant and admissible, should be excluded in light of
    
    Neb. Rev. Stat. § 27-403
     (Reissue 2016) because its probative value
    is substantially outweighed by the danger of unfair prejudice or other
    considerations.
    9. Trial: Expert Witnesses. A trial court acts as a gatekeeper to ensure
    the evidentiary relevance and reliability of an expert’s opinion, and this
    gatekeeping function entails a preliminary assessment whether the rea-
    soning or methodology underlying the testimony is valid and whether
    that reasoning or methodology properly can be applied to the facts
    in issue.
    10. ____: ____. Daubert v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 
    125 L. Ed. 2d 469
     (1993), does not create a special
    analysis for answering questions about the admissibility of all expert
    testimony. Not every attack on expert testimony amounts to a Daubert
    claim. If a witness is not offering opinion testimony, that witness’ testi-
    mony is not subject to inquiry pursuant to Daubert.
    11. Sentences: Appeal and Error. When sentences imposed within stat-
    utory limits are alleged on appeal to be excessive, the appellate
    court must determine whether the sentencing court abused its discre-
    tion in considering well-established factors and any applicable legal
    principles.
    12. Judges: Words and Phrases. A judicial abuse of discretion exists only
    when a trial court’s decision is based upon reasons that are untenable
    or unreasonable or if its action is clearly against justice or conscience,
    reason, and evidence.
    13. 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.
    14. ____. The sentencing court is not limited to any mathematically applied
    set of factors, but the appropriateness of the sentence is necessarily a
    subjective judgment that includes the sentencing judge’s observations
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    312 Nebraska Reports
    STATE V. GREER
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    312 Neb. 351
    of the defendant’s demeanor and attitude and all the facts and circum-
    stances surrounding the defendant’s life.
    15. ____. It is within the discretion of the trial court to direct that sen-
    tences imposed for separate crimes be served consecutively. The test
    of whether consecutive sentences may be imposed under two or more
    counts charging separate offenses, arising out of the same transaction or
    the same chain of events, is whether the offense charged in one count
    involves any different elements than an offense charged in another
    count. The test is whether some additional evidence is required to prove
    one of the other offenses.
    Appeal from the District Court for Sarpy County: George
    A. Thompson, Judge. Affirmed.
    Thomas P. Strigenz, Sarpy County Public Defender, for
    appellant.
    Douglas J. Peterson, Attorney General, and Melissa R.
    Vincent for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Heavican, C.J.
    INTRODUCTION
    The defendant, Christina M. Greer, was charged with 13
    counts in four separate cases, all relating to allegations of
    sexual assault of a child. Greer was convicted of 11 of those
    counts and sentenced to an aggregate sentence of 64 to 102
    years’ imprisonment. Greer appeals. We affirm.
    BACKGROUND
    Charges Against Greer.
    Greer was charged in four separate cases. In the first case,
    she was originally charged with one count of first degree sex-
    ual assault of W.F. (also known as A.F.), a 13-year-old boy who
    was friends with Greer’s 11-year-old daughter. That charge was
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    312 Nebraska Reports
    STATE V. GREER
    Cite as 
    312 Neb. 351
    later amended to one count of first degree sexual assault of a
    child and two counts of witness tampering.
    In the second case, Greer was charged with three counts of
    first degree sexual assault of a child, J.H., a 13-year-old boy
    who was friends with Greer’s 9-year-old son. In the third case,
    Greer was charged with six counts of intentional child abuse of
    A.F. and J.H.; of Greer’s daughter; and of A.R., A.J., and C.P.,
    identified as friends of Greer’s daughter. In the fourth case,
    Greer was charged with child enticement of P.M., a 13-year-old
    boy who attended school with Greer’s daughter.
    These four cases were consolidated for trial on January 21,
    2021.
    Pretrial Motions.
    Greer was first charged in March 2018, but did not come to
    trial until March 2, 2021. Since that time, Greer has had three
    attorneys: appointed counsel; retained counsel; and at trial, the
    Sarpy County public defender, who was appointed on April 2,
    2020, and represents Greer in this appeal.
    As relevant to this appeal, the primary reason for the delay
    in Greer’s trial was various motions filed by the State under
    
    Neb. Rev. Stat. § 27-404
     (Reissue 2016) (other bad acts) and
    
    Neb. Rev. Stat. § 27-414
     (Reissue 2016) (prior sexual con-
    duct). Generally, the State sought to introduce evidence that
    Greer (1) had engaged in uncharged sex acts with other chil-
    dren, (2) had engaged in uncharged sex acts with already iden-
    tified victims, and (3) was “grooming” the children through the
    supplying of alcohol and marijuana edibles. In support of its
    contention that evidence relating to Greer’s grooming of chil-
    dren who came to her home, the State offered the testimony of
    Colleen Brazil, the forensic interview program manager at a
    child advocacy center.
    The first such motion regarding §§ 27-404 and 27-414 was
    filed on December 26, 2018. At a hearing on February 7, 2019,
    Brazil testified about the concept of “grooming” and the behav-
    iors it encompasses. Greer’s daughter and J.H. testified about
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    STATE V. GREER
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    312 Neb. 351
    Greer’s conduct in the cases wherein each was a named victim.
    The State’s motion was granted on March 1.
    On August 6, 2019, Greer sought a motion in limine to
    prevent the State from mentioning or using the term “groom-
    ing” without the court’s permission, as it was a “term of art
    that requires expert testimony.” On August 7, the district court
    granted the State’s motion to continue and noted that it would
    take up the motions in limine at a later hearing. The district
    court held a hearing on Greer’s motions in limine on March 3,
    2020, and denied the motions, noting that it had addressed the
    issue in various § 27-404 hearings.
    Brazil’s Testimony.
    Trial began on March 2, 2021. On March 3, Greer filed
    a motion seeking an order to strike Brazil as an expert wit-
    ness, as well as to strike her testimony regarding grooming,
    because such theories violated standards set forth in Daubert
    v. Merrell Dow Pharmaceuticals, Inc., 1 and Schafersman v.
    Agland Coop. 2
    The State called Brazil to testify on March 4, 2021. Greer
    objected when the State asked Brazil if she was familiar with
    the term “grooming.” The district court initially indicated
    that “grooming” was not an appropriate topic for a Daubert
    hearing and that Brazil was an expert in the field of child
    advocacy. But the district court ultimately agreed to hold a
    Daubert hearing.
    At that hearing, Brazil once again testified on the concept
    of grooming. Brazil also testified that she knew very little
    about the facts of Greer’s case and that she would not offer
    an opinion as to whether Greer’s alleged victims were, in fact,
    groomed by Greer. The State also offered three court opinions
    and an article about grooming.
    1
    Daubert v. Merrell Dow Pharmaceuticals, Inc., 
    509 U.S. 579
    , 
    113 S. Ct. 2786
    , 
    125 L. Ed. 2d 469
     (1993).
    2
    Schafersman v. Agland Coop, 
    262 Neb. 215
    , 
    631 N.W.2d 862
     (2001).
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    STATE V. GREER
    Cite as 
    312 Neb. 351
    In ruling for the State, the court indicated that it did not
    think Daubert should apply, but that the Nebraska Court of
    Appeals’ opinion in State v. Edwards 3 held that Daubert did
    apply. The district court explicitly noted it believed that the
    difference between the Edwards case and Greer’s situation
    was based on the fact that the expert in Edwards specifically
    opined that the defendant in that case had engaged in groom-
    ing. The district court found that Brazil was an expert and
    allowed her to testify, but noted that the State should not
    stray into questions about whether Greer’s actions amounted
    to grooming.
    When Greer’s counsel sought to clarify the grounds of the
    court’s ruling, the court explained that it was ruling that Brazil
    was a qualified expert, that grooming was part of her expertise,
    that there was sufficient peer review on the topic of grooming,
    and that the evidence was more probative than prejudicial, but
    that it also believed Daubert did not apply because Brazil was
    not opining on whether Greer’s conduct amounted to groom-
    ing. Brazil then testified at trial, subject to Greer’s continu-
    ing objection.
    The jury ultimately found Greer guilty of counts 1 through
    3 and 5 through 12, and not guilty of counts 4 (sexual assault
    of a child) and 13 (child enticement). Greer was sentenced to
    a total of 64 to 102 years’ imprisonment, or 25 to 40 years’ for
    the three counts of first degree sexual assault of a child, 2 to 3
    years’ imprisonment on the six counts of child abuse, and 1 to
    2 years’ imprisonment on the two counts of witness tampering.
    The sentences were ordered to be served consecutively, except
    that the 25-to-40-year sentence on count 6 was ordered to run
    concurrent to Greer’s other sentences.
    Jury Instructions.
    Prior to closing arguments, the district court instructed the
    jury, then took a brief recess. After the recess, the jury was
    3
    State v. Edwards, 
    28 Neb. App. 893
    , 
    949 N.W.2d 799
     (2020).
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    STATE V. GREER
    Cite as 
    312 Neb. 351
    informed that instruction No. 4, the definition of the term
    “penetration,” while taken from the Nebraska pattern jury
    instructions, 4 was incomplete. As such, over Greer’s objection,
    the instruction was revised to mirror the pattern instruction and
    was read again to the jury.
    Greer appeals from her convictions and sentences.
    ASSIGNMENTS OF ERROR
    Greer assigns, restated, that the district court erred in (1) the
    procedure utilized in instructing the jury as to the definitions
    included in instruction No. 4, specifically of the term “penetra-
    tion”; (2) allowing Brazil to testify as an expert on the issue of
    grooming; and (3) imposing excessive sentences.
    STANDARD OF REVIEW
    [1] Whether a jury instruction is correct is a question of
    law, regarding which an appellate court is obligated to reach
    a conclusion independent of the determination reached by the
    trial court. 5
    [2,3] An appellate court reviews the record de novo to
    determine whether a trial court has abdicated its gatekeeping
    function when admitting expert testimony. 6 When the trial
    court has not abdicated its gatekeeping function, an appellate
    court reviews the trial court’s decision to admit or exclude the
    evidence for an abuse of discretion. 7
    [4,5] A sentence imposed within the statutory limits will
    not be disturbed on appeal in the absence of an abuse of
    discretion by the trial court. 8 A judicial abuse of discre-
    tion exists only when the reasons or rulings of a trial judge
    are clearly untenable, unfairly depriving a litigant of a
    4
    NJI2d Crim. 4.6.
    5
    State v. Pope, 
    305 Neb. 912
    , 
    943 N.W.2d 294
     (2020).
    6
    See Hemsley v. Langdon, 
    299 Neb. 464
    , 
    909 N.W.2d 59
     (2018).
    7
    See 
    id.
    8
    State v. Blake, 
    310 Neb. 769
    , 
    969 N.W.2d 399
     (2022).
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    STATE V. GREER
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    312 Neb. 351
    substantial right and denying a just result in matters sub­
    mitted for disposition. 9
    ANALYSIS
    Jury Instructions.
    Greer first assigns that the district court erred in instruct-
    ing the jury when it initially read an incomplete version of
    instruction No. 4, then later read the complete version of that
    same instruction. Greer asserts that the second reading of that
    particular instruction, which included the definition of the term
    “penetration,” was prejudicial to her because it emphasized
    penetration to the jury in a case where she had strongly denied
    committing an act of penetration. Greer suggests that at a mini-
    mum, the district court ought to have read again all instruc-
    tions in order to de-emphasize any one instruction.
    [6,7] Jury instructions are subject to harmless error review,
    and an erroneous jury instruction requires reversal only if the
    error adversely affects the substantial rights of the complain-
    ing party. 10 In an appeal based upon a claim of an erroneous
    jury instruction, the appellant has the burden to show that the
    questioned instruction was prejudicial or otherwise adversely
    affected a substantial right of the appellant. 11
    We find Greer’s arguments on appeal unpersuasive. We
    first observe that the only instruction in our record relevant
    to this assignment of error is the complete instruction No. 4,
    read to the jury upon the court’s realization that the initial
    instruction No. 4 was incomplete and later sent back with
    the jury for its use during deliberations. Greer had the bur-
    den to show that she was prejudiced by the court’s giving of
    the original instruction. Yet Greer has provided no record of
    what that initial, incomplete instruction contained. We can-
    not determine whether Greer was prejudiced by the second
    9
    
    Id.
    10
    State v. Dady, 
    304 Neb. 649
    , 
    936 N.W.2d 486
     (2019).
    11
    State v. Bao, 
    263 Neb. 439
    , 
    640 N.W.2d 405
     (2002).
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    reading of the instruction if we do not know the full contents
    of the first instruction.
    And even if we could proceed based on our limited knowl-
    edge of the contents of the incomplete instruction, we would
    still conclude that Greer has failed to meet her burden to show
    that the instruction procedure followed was prejudicial. First,
    the cases upon which Greer relies—State v. Abram 12 and State
    v. Claycamp 13—are distinguishable.
    In Abram, the written jury instruction, which was not
    objected to by the defendant or the State, read in relevant part
    that “‘[t]he fact that the [d]efendant did not testify must be
    considered by you as an admission of guilt . . . .’” 14 Copies of
    the instruction containing this plainly incorrect language were
    provided to the members of the jury to use while deliberating.
    However, in orally instructing the jury, the court stated that
    “‘[t]he fact that the [d]efendant did not testify must not be
    considered by you as an admission of guilt . . . .’” 15 In other
    words, the correct version of the instruction was read to the
    jury, but the incorrect language was provided to the jury in
    written form.
    We held in Abram that this was not structural error, but sub-
    ject to harmless error analysis. We concluded that even though
    the correct language was actually read to the jury, the error was
    not harmless. In so concluding, we reasoned that the incorrect
    instructions were emphasized by virtue of having been written
    and available to the jury during its deliberations.
    In Claycamp, the defendant raised a defense of self-defense
    at trial. At the conclusion of evidence, the court read to the jury
    its instructions. The State and the defense then made closing
    arguments. In response to some comments made by the State
    in its argument, the court admonished the jury that it was
    12
    State v. Abram, 
    284 Neb. 55
    , 
    815 N.W.2d 897
     (2012).
    13
    State v. Claycamp, 
    14 Neb. App. 675
    , 
    714 N.W.2d 455
     (2006).
    14
    State v. Abram, supra note 12, 284 Neb. at 60, 815 N.W.2d at 903.
    15
    Id.
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    “‘not to consider any sort of [the victim’s] conduct or the
    consequences of his conduct. This is about the defendant . .
    . .’” 16 The Court of Appeals noted that the admonishment to
    the jury was contradictory to the earlier instructions regarding
    the defendant’s defense of self-defense. The Court of Appeals
    applied a harmless error standard and concluded that the error
    was not harmless and that reversal was warranted.
    Unlike Abram and Claycamp, where the instruction provided
    was inconsistent with other instructions, was incorrect, or both,
    here, there is no suggestion that the initial part of instruction
    No. 4 read to the jury was incorrect—only that it was incom-
    plete. This is reflected in the exchange between the court and
    counsel when the court explained that it would be adding to
    the instruction and reading it again. In fact, as we have noted
    above, this record does not even include the language origi-
    nally read to the jury—whether it be the original instruction the
    court read from or a transcript of the court’s verbal instruction
    as it would appear in the bill of exceptions.
    In this case, we apply a harmless error standard and decline
    to find any. First, this court lacks a complete record. Moreover,
    there is no allegation that the initial instruction as read to the
    jury was incorrect, but only that it was incomplete. Nor is there
    any allegation that the final instruction read to the jury and sent
    back with the jury during its deliberations was incorrect. We
    note Greer’s argument that the reading again of the definition
    of penetration emphasized that concept to the jury. However,
    we conclude that it is not possible to determine whether any
    alleged emphasis would have helped or harmed Greer, espe-
    cially where Greer has directed us to no authority on point.
    Greer has failed to meet her burden to show that she was
    prejudiced by the procedure followed by the district court with
    respect to instruction No. 4. As such, we find no merit to this
    assignment of error.
    16
    State v. Claycamp, supra note 13, 
    14 Neb. App. at 680
    , 
    714 N.W.2d at 459
    .
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    STATE V. GREER
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    Brazil’s Testimony.
    In Greer’s second assignment of error, she assigns that the
    district court erred in allowing Brazil to testify as an expert
    on the issue of grooming. We construe Greer’s brief to argue
    that the district court did not “adequately demonstrate specific
    findings on the record that it had performed its duty as a gate-
    keeper to find her as an expert on the issues of grooming.” 17
    Greer further asserts that “grooming [was not] a scientifically
    valid methodology.” 18
    [8] 
    Neb. Rev. Stat. § 27-702
     (Reissue 2016) provides that
    “[i]f scientific, technical, or other specialized knowledge will
    assist the trier of fact to understand the evidence or to deter-
    mine a fact in issue, a witness qualified as an expert by knowl-
    edge, skill, experience, training, or education, may testify
    thereto in the form of an opinion or otherwise.” Four prelimi-
    nary questions must be answered in order to determine whether
    an expert’s testimony is admissible: (1) whether the witness
    qualifies as an expert pursuant to § 27-702; (2) whether the
    expert’s testimony is relevant; (3) whether the expert’s testi-
    mony will assist the trier of fact to understand the evidence
    or determine a controverted factual issue; and (4) whether the
    expert’s testimony, even though relevant and admissible, should
    be excluded in light of 
    Neb. Rev. Stat. § 27-403
     (Reissue 2016)
    because its probative value is substantially outweighed by the
    danger of unfair prejudice or other considerations. 19
    [9,10] Under our Daubert 20 and Schafersman 21 jurispru-
    dence, a “trial court acts as a gatekeeper to ensure the evi-
    dentiary relevance and reliability of an expert’s opinion,” and
    this gatekeeping function “entails a preliminary assessment
    17
    Brief for appellant at 22.
    18
    
    Id.
    19
    City of Lincoln v. Realty Trust Group, 
    270 Neb. 587
    , 
    705 N.W.2d 432
    (2005).
    20
    Daubert v. Merrell Dow Pharmaceuticals, Inc., 
    supra note 1
    .
    21
    Schafersman v. Agland Coop, 
    supra note 2
    .
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    whether the reasoning or methodology underlying the tes-
    timony is valid and whether that reasoning or methodology
    properly can be applied to the facts in issue.” 22 Still, “Daubert
    does not create a special analysis for answering questions about
    the admissibility of all expert testimony. Not every attack on
    expert testimony amounts to a Daubert claim. If a witness is
    not offering opinion testimony, that witness’ testimony is not
    subject to inquiry pursuant to Daubert.” 23
    Finally, we have noted that
    courts need not reinvent the wheel each time that special-
    ized evidence is adduced. The proponent need not contin-
    uously go through the exercise of re-proving reliability of
    the same evidence in every case. Instead, once a Nebraska
    trial court has actually examined and assessed the reli-
    ability of a particular scientific wheel under Daubert, and
    its determination has been affirmed on appeal, then other
    courts may simply take judicial notice and ride behind.
    In such cases, the proponent establishes a prima facie
    case of reliability by relying on precedent, and the burden
    shifts to the opponent to show that recent developments
    raise doubts about the validity of previously relied-upon
    theories or techniques. 24
    We find no merit to Greer’s arguments on appeal. First, we
    agree with the district court that Daubert was inapplicable
    in this case. As noted above, our case law is clear that not
    every instance of expert testimony is a Daubert issue. In this
    case, prior to testifying, Brazil indicated that she did not have
    any particular knowledge about Greer or the alleged victims
    in this case and that she was not prepared to testify as to
    whether Greer’s conduct qualified as grooming. And indeed,
    22
    State v. Robinson, 
    272 Neb. 582
    , 618, 
    724 N.W.2d 35
    , 68 (2006), abro­
    gated on other grounds, State v. Thorpe, 
    280 Neb. 11
    , 
    783 N.W.2d 749
    (2010).
    23
    State v. Schreiner, 
    276 Neb. 393
    , 405, 
    754 N.W.2d 742
    , 754 (2008).
    24
    State v. Casillas, 
    279 Neb. 820
    , 838, 
    782 N.W.2d 882
    , 898 (2010).
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    her testimony was in conformity with her testimony at pre-
    trial hearings—at no point did she offer any opinion about
    Greer’s conduct.
    Moreover, even if we were to conclude that Daubert was
    applicable, a decision we need not reach here, the record shows
    that the district court held a Daubert hearing. At that hearing,
    Brazil testified to her many years of experience in conducting
    and monitoring forensic interviews of child sexual assault vic-
    tims, including attending and teaching seminars on that topic.
    We find no abuse of discretion in the district court’s conclu-
    sion, set out in the record, that Brazil qualified as an expert and
    that her testimony was admissible.
    We note also the confusion that seems to have resulted from
    the Court of Appeals’ opinion in Edwards, which we find dis-
    tinguishable and inapplicable. 25 The district court concluded
    the factor that made Daubert an issue in Edwards was that
    the pediatrician who testified regarding grooming in that case
    testified the defendant’s actions were, in fact, grooming. The
    distinction noted by the district court is in keeping with our
    case law as set out above and is consistent with our conclusion
    in this case. We further note that to the extent that Edwards
    could be read to categorically reject such testimony, it is
    disapproved.
    There is no merit to Greer’s assignment of error regarding
    Brazil’s testimony.
    Excessive Sentences.
    Finally, Greer assigns that the sentences imposed upon her
    were excessive. As an initial matter, we note that all of Greer’s
    sentences were within statutory limits and that the record
    shows the court considered Greer’s presentence investigation
    and all of the relevant factors as set forth in case law.
    Instead, Greer primarily takes issue with the consecutive
    nature of her sentences:
    25
    State v. Edwards, supra note 3.
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    The record reflects that counts 7 [through] 12 all arose
    out of the same transactions and series of events. The
    State agrees with this assertion as it filed a motion to
    consolidate stating the same. . . . Because child abuse
    allegations all arose out of the same times as count 1, they
    therefore should be concurrent with each other as well as
    to count 1.
    Additionally, counts 5 and 6 should be concurrent with
    one another as they are the same victim and are part of
    the same series and chain of events. Finally, the evidence
    shows that counts 2 and 3 all arose out of the same series
    of transactions.
    It is logical that the charges should be served
    concurrently. 26
    [11,12] When sentences imposed within statutory limits are
    alleged on appeal to be excessive, the appellate court must
    determine whether the sentencing court abused its discretion in
    considering well-established factors and any applicable legal
    principles. 27 A judicial abuse of discretion exists only when a
    trial court’s decision is based upon reasons that are untenable
    or unreasonable or if its action is clearly against justice or con-
    science, reason, and evidence. 28
    [13,14] 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 commission of the crime. 29 The sentencing court is not
    limited to any mathematically applied set of factors, but the
    26
    Brief for appellant at 26.
    27
    State v. Blake, 
    supra note 8
    .
    28
    
    Id.
    29
    
    Id.
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    appropriateness of the sentence is necessarily a subjective
    judgment that includes the sentencing judge’s observations of
    the defendant’s demeanor and attitude and all the facts and
    circumstances surrounding the defendant’s life. 30
    [15] It is within the discretion of the trial court to direct
    that sentences imposed for separate crimes be served consecu­
    tively. 31 The test of whether consecutive sentences may be
    imposed under two or more counts charging separate offenses,
    arising out of the same transaction or the same chain of events,
    is whether the offense charged in one count involves any dif-
    ferent elements than an offense charged in another count. The
    test is whether some additional evidence is required to prove
    one of the other offenses. 32
    We turn first to Greer’s contention that her sentence on
    count 5 (first degree sexual assault of a child—J.H.) should
    run concurrent to her sentence on count 6 (also first degree
    sexual assault of a child—J.H.). We observe that, in fact, her
    sentence on count 4 was ordered to be served concurrent to
    the remainder of her sentences. As such, there is no merit to
    this assertion.
    Greer also argues that the child abuse counts against her all
    arose out of the same transactions and series of events. But
    while they involve the same general conduct on Greer’s part,
    they also involve six different children and the State had to
    separately prove the elements of child abuse as to each of the
    children in order to obtain guilty verdicts.
    Greer additionally argues that the child abuse counts arose
    from the same set of facts as count 1 (first degree sexual
    assault of a child—A.F.), and so, the sentences for child abuse
    should run concurrently. But the elements the State had to
    prove for child abuse are distinct from those for first degree
    30
    
    Id.
    31
    State v. Andersen, 
    238 Neb. 32
    , 
    468 N.W.2d 617
     (1991).
    32
    
    Id.
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    sexual assault of a child. We find no abuse of discretion in the
    district court’s order sentencing Greer consecutively for any of
    these convictions.
    Finally, Greer argues that the tampering with a witness
    counts arise from the same series of transactions. Again, as
    to these counts, the State had to prove the elements of those
    crimes as occurring on different occasions, and thus, different
    evidence was required.
    Because all of the counts required the proving of different
    elements or different evidence, there was no abuse of discre-
    tion in the district court’s sentences. There is no merit to this
    assignment of error.
    CONCLUSION
    The district court’s judgments and convictions are affirmed.
    Affirmed.