State v. Dady , 304 Neb. 649 ( 2019 )


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    - 649 -
    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. DADY
    Cite as 
    304 Neb. 649
    State of Nebraska, appellee, v.
    Joshua Dady, appellant.
    ___ N.W.2d ___
    Filed December 13, 2019.   No. S-18-948.
    1. Jury Instructions: Judgments: Appeal and Error. Whether jury
    instructions given by a trial court are correct is a question of law. When
    dispositive issues on appeal present questions of law, an appellate court
    has an obligation to reach an independent conclusion irrespective of the
    decision of the court below.
    2. Jury Instructions: Appeal and Error. Jury instructions are subject
    to the harmless error rule, and an erroneous jury instruction requires
    reversal only if the error adversely affects the substantial rights of the
    complaining party.
    3. Verdicts: Appeal and Error. Harmless error review looks to the basis
    on which the trier of fact actually rested its verdict; the inquiry is not
    whether in a trial that occurred without the error a guilty verdict surely
    would have been rendered, but, rather, whether the actual guilty verdict
    rendered in the questioned trial was surely unattributable to the error.
    4. Jury Instructions: Proof: Appeal and Error. To establish reversible
    error from a court’s refusal to give a requested instruction, an appel-
    lant has the burden to show that (1) the tendered instruction is a correct
    statement of the law, (2) the tendered instruction is warranted by the
    evidence, and (3) the appellant was prejudiced by the court’s refusal to
    give the tendered instruction.
    5. Criminal Law: Evidence: Appeal and Error. When examining a suffi-
    ciency of the evidence claim, the relevant question for an appellate court
    is whether, after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the essential ele-
    ments of the crime beyond a reasonable doubt.
    6. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings
    under the residual hearsay exception, an appellate court reviews for
    clear error the factual findings underpinning a trial court’s hearsay rul-
    ing and reviews de novo the court’s ultimate determination whether the
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    304 Nebraska Reports
    STATE v. DADY
    Cite as 
    304 Neb. 649
    court admitted evidence over a hearsay objection or excluded evidence
    on hearsay grounds.
    7.   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.
    8.   Sexual Assault. Under Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016),
    whether the victim was incapable of consent depends upon a specific
    inquiry into the victim’s capacity, i.e., whether the victim was mentally
    or physically incapable of resisting or appraising the nature of his or
    her conduct.
    9.   ____. Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016) applies to a wide
    array of situations that affect a victim’s capacity, including age.
    10.   Jury Instructions: Evidence: Appeal and Error. When examining for
    harmless error, the court may look at a variety of factors including the
    jury instructions as a whole, the evidence presented at trial, and the clos-
    ing arguments.
    11.   Convictions: Evidence: Appeal and Error. In reviewing a criminal
    conviction for a sufficiency of the evidence claim, whether the evidence
    is direct, circumstantial, or a combination thereof, the standard is the
    same: An appellate court does not resolve conflicts in the evidence, pass
    on the credibility of the witnesses, or reweigh the evidence; such matters
    are for the finder of fact.
    12.   Rules of Evidence: Hearsay: Proof. Evidence is admissible under
    Neb. Rev. Stat. § 27-803(3) (Reissue 2016) when the party seeking to
    introduce the evidence demonstrates (1) that the circumstances under
    which the statements were made were such that the declarant’s purpose
    in making the statements was to assist in the provision of medical
    diagnosis or treatment and (2) that the statements were of a nature
    reasonably pertinent to medical diagnosis or treatment by a medi-
    cal professional.
    13.   Appeal and Error. To be considered by an appellate court, an alleged
    error must be both specifically assigned and specifically argued in the
    brief of the party asserting the error.
    14.   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 violence involved in
    the commission of the crime. The appropriateness of a sentence is
    necessarily a subjective judgment and includes the sentencing judge’s
    observation of the defendant’s demeanor and attitude and all the facts
    and circumstances surrounding the defendant’s life.
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    Nebraska Supreme Court Advance Sheets
    304 Nebraska Reports
    STATE v. DADY
    Cite as 
    304 Neb. 649
    Appeal from the District Court for Douglas County:
    Gregory M. Schatz, Judge. Affirmed.
    Thomas C. Riley, Douglas County Public Defender, Timothy
    F. Shanahan, and Abbi R. Romshek for appellant.
    Douglas J. Peterson, Attorney General, and Siobhan E. Duffy
    for appelllee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    NATURE OF CASE
    Appellant was convicted of first degree sexual assault under
    Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016). Appellant was
    18 years old at the time, and the victim was 10 years old.
    Appellant was found guilty, and he now assigns several errors
    on appeal. These errors focus on several rulings by the district
    court related to the knowledge element of the crime charged
    and whether age can be a factor in a jury’s determination of
    capacity under § 28-319(1)(b). For the reasons set forth below,
    we affirm the judgment of the district court.
    FACTS
    Joshua Dady was charged with first degree sexual assault
    after he admitted to police that he had sex with M.J., a 10-year-
    old girl. While Dady was 18 years old and within 4 days of
    their meeting, Dady engaged in vaginal intercourse with M.J.
    Dady was charged under § 28-319(1)(b). Section 28-319(1)
    makes it a crime for “[a]ny person [to subject] another person
    to sexual penetration . . . (b) who knew or should have known
    that the victim was mentally or physically incapable of resist-
    ing or appraising the nature of his or her conduct[.]” Following
    a jury trial, Dady was convicted and sentenced to 20 to 25
    years’ imprisonment. Dady appeals.
    Dady first met and talked with M.J. for approximately an
    hour after she exited a schoolbus a few blocks from her home
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    STATE v. DADY
    Cite as 
    304 Neb. 649
    on a Thursday or Friday afternoon. M.J. testified that Dady
    told her he was 16 years old and that she told Dady she was
    10 years old.
    M.J.’s stepfather saw M.J. and Dady talking and introduced
    himself and then walked M.J. into the house. When M.J.’s
    stepfather noticed Dady following everyone into the home,
    he told Dady to leave. M.J.’s stepfather also asked Dady if he
    knew how old M.J. was, and Dady said no. He then told Dady
    that M.J. was 10 years old. M.J. later encountered Dady while
    she was walking her dog. M.J. testified that they discussed
    “YouTubers” for an unknown length of time. M.J. testified she
    thought that she and Dady “hung out” again later in the day on
    a Saturday. M.J.’s mother testified that M.J. came to her on that
    Saturday and asked to go to a mall with Dady. M.J.’s mother
    told M.J. she could not go to the mall with Dady because she
    did not know him.
    On the morning of Sunday, August 20, 2017, M.J. met up
    with Dady for about an hour, then went home for lunch and to
    clean her room. After lunch, M.J. returned to Dady’s house and
    sat on the curb. After approximately 5 minutes, Dady invited
    M.J. to sit by a fence in the yard. Dady asked M.J. if she had a
    boyfriend and then suggested to M.J. that they should have sex.
    M.J. testified that she had originally said no, but then agreed
    after Dady offered to give her an “MP3 player.” M.J. and Dady
    began kissing. Dady then pulled down his shorts and put a con-
    dom on. M.J. testified that she knew what a condom was but had
    not seen one before and did not know what Dady meant when
    he said, “‘We can’t let this go to waste now.’” Dady then pulled
    down M.J.’s pants and pulled M.J. on top of him. M.J. testified
    that Dady’s pulling her on top of him was not forced. M.J.’s
    statements to medical personnel and her testimony at trial were
    that she knew what sex was and that she willingly engaged in
    sex with Dady.
    Neighbors saw M.J. pull down her pants and attempt to sit
    on Dady’s lap. They ran outside and confronted M.J. and Dady.
    M.J. and Dady both stood up and pulled their pants up as the
    neighbors approached. M.J. testified that she asked Dady to
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    STATE v. DADY
    Cite as 
    304 Neb. 649
    “‘[p]romise not to tell’” what happened. The neighbors told
    M.J.’s stepfather and then informed Dady’s foster father of what
    they had seen. The neighbors testified they had seen Dady and
    M.J. “hanging out” earlier in the day when M.J. was riding
    around the neighborhood on a “bike [with] flowers on it.”
    M.J.’s stepfather called M.J. home. When M.J. arrived
    home, she went to her room and would not speak with either
    her stepfather or her mother. M.J.’s mother then called the 911
    emergency dispatch service. M.J. was taken to a child advo-
    cacy center and then to a hospital to be examined by a sexual
    assault nurse.
    Police, responding to the 911 call, interviewed M.J.’s mother
    and then went to Dady’s foster home. Dady and his foster
    father came outside and spoke with the police. Dady admit-
    ted to police that he had sexually penetrated M.J.’s vagina and
    that he was 18 years old. The police placed Dady under arrest,
    and he was taken to a police station for an interview. Police
    obtained consent from Dady’s foster father to search the yard
    and the home. Police found a condom wrapper in the yard and
    a used condom in a trash can in Dady’s bedroom.
    During the interview with police, Dady claimed M.J. told
    him that she was 16 or 17 years old and that she was going
    to be a freshman in high school. Dady initially denied that his
    penis penetrated M.J.’s vagina, but later stated that a small
    portion of his penis went inside M.J.’s vagina. Dady also told
    police that he put his finger in M.J.’s vagina, but that she told
    him to stop because it was hurting her. Dady also told police
    that he put his penis in M.J.’s mouth for a “millisecond.”
    Dady said M.J. told him on the day of the incident that her
    mother says she is 10 years old, but that she is a freshman in
    high school and was about to turn 16 years old. At the end of
    the interview, when asked how old he thought M.J. looked,
    Dady admitted she looked 10 or 11 years old.
    Susan Kelly, an emergency room pediatrician, testified con-
    cerning M.J.’s visit to the emergency room on the night of the
    incident. Kelly testified that M.J. or M.J.’s mother relayed that
    M.J. had been diagnosed with attention deficit hyperactivity
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    STATE v. DADY
    Cite as 
    304 Neb. 649
    disorder (ADHD), oppositional defiant disorder (ODD), and
    disruptive mood dysregulation disorder (DMDD). This was
    done while Kelly was ascertaining M.J.’s medical history for
    the purpose of treating her in the emergency room. Dady
    objected on the ground of hearsay and was overruled.
    Kelly explained the various stages of cognitive development
    of children and testified that a normal 10-year-old’s brain has not
    fully developed the ability to assess risk and control impulses.
    Kelly further testified as to how diagnoses of ADHD and ODD
    can affect a person’s ability to control impulses. On cross-
    examination, Kelly testified that her impressions of M.J.’s ability
    to understand the nature of sex were based upon her time spent
    with M.J., M.J.’s past diagnoses, and the general categorization
    of a 10-year-old’s capacity. When asked to give further support
    for her conclusion that M.J. was not capable of appraising the
    nature of sex, Kelly testified that M.J. did not know when her
    last period occurred. Further, Kelly testified that when she asked
    M.J. if a condom was used in the incident, M.J. responded, “‘I
    think so.’”
    Additional evidence of M.J.’s mental health diagnoses was
    presented through the testimony of the forensic interviewer
    who saw M.J. at the child advocacy center. She testified that
    ADHD, ODD, and DMDD can affect emotional stability and
    impulse control. She indicated the severity of each of these
    conditions can vary based on the individual. She admitted that
    she is not licensed to diagnose these conditions; however, she
    stated that it is important for an interviewer to know a child’s
    mental health diagnoses in order to tailor the interview to the
    child. She testified that M.J. appeared to be a developmentally
    normal 10-year-old and indicated that no formal testing of cog-
    nitive ability was done.
    M.J.’s mother testified that M.J. has had behavioral and
    mental health issues since she was approximately 4 years old.
    M.J.’s mother testified that M.J. had been diagnosed with
    ADHD, ODD, and DMDD. Dady objected on grounds of foun-
    dation and hearsay and was overruled. On cross-examination,
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    304 Nebraska Reports
    STATE v. DADY
    Cite as 
    304 Neb. 649
    Dady elicited testimony from M.J.’s mother that the diagnoses
    had come from M.J.’s doctor. Dady made a motion to strike
    M.J.’s mother’s testimony on hearsay and Confrontation Clause
    grounds. M.J.’s mother also testified that M.J.’s mental health
    problems have resulted in M.J.’s hospitalization more than 10
    times. M.J.’s mother testified these hospitalizations normally
    occur after M.J. becomes physically and emotionally escalated
    or when M.J. threatens to harm herself.
    M.J.’s mother testified that she had age-appropriate conver-
    sations about sex with M.J. M.J.’s mother expressed that prior
    to the incident, M.J. understood the physical aspects of what
    sex is. M.J.’s mother explained that some of the conversa-
    tions were prompted by M.J.’s being accused of inappropriate
    sexual touching of her half sister. The incidents with her half
    sister resulted in M.J.’s being hospitalized and then receiving
    treatment at a residential treatment facility for approximately
    5 months.
    At the close of the State’s case, Dady made a motion to dis-
    miss. Dady claimed the State failed to prove that M.J. lacked
    capacity and that Dady knew or had reason to know M.J.
    lacked capacity under the statute. The court denied the motion.
    At the conclusion of evidence, Dady objected to jury instruc-
    tion No. 6 proposed by the court. Dady submitted an alternate
    instruction based on the definition of mental impairment taken
    from In re Interest of K.M.1 Instruction No. 6 provided in part:
    “‘Mentally Incapable’ means that because of the victim’s age
    or mental impairment, the victim was incapable of resisting or
    appraising the nature of her sexual conduct. ‘Mental Impairment’
    means the victim’s impairment was so severe that she lacked the
    capacity to consent to sexual conduct with the Defendant.”
    Dady’s proposed jury instruction stated in relevant part:
    “Mentally or physically incapable of resisting or
    appraising the nature of her conduct” shall mean a sig-
    nificant abnormality on the part of the victim such as
    1
    In re Interest of K.M., 
    299 Neb. 636
    , 
    910 N.W.2d 82
    (2018).
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    STATE v. DADY
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    304 Neb. 649
    severe intoxication or other substantial mental or physi-
    cal impairment. In order for a mental impairment to
    be substantial, it must be severe; a person in this cat-
    egory is treated as equivalent to a severely intoxicated
    or an unconscious person. Not every mental challenge or
    impairment is so severe that the person lacks the capacity
    to resist or appraise the nature of her conduct.
    The court gave its proposed instruction No. 6. Other instruc-
    tions, given without objection, provided that the jury must
    apply the law in the instructions and that no one instruction
    contains all of the law applicable to this case. A further instruc-
    tion provided the specific elements of the charge using the
    language of § 28-319(1)(b).
    After the jury returned a guilty verdict, Dady made a motion
    for a judgment notwithstanding the verdict or, in the alterna-
    tive, for a new trial. Dady provided several arguments in sup-
    port of the motion, only two of which were assigned on appeal.
    First, Dady argued that the jury instructions were incorrect and
    prejudicial. Second, Dady argued that there were irregularities
    in the proceedings of the court, the prosecuting attorney, and
    the witnesses for the State prejudicial to his rights. The alleged
    trial irregularities related to the court’s change in its ruling on
    whether Dady could present evidence under Neb. Rev. Stat.
    § 27-412 (Reissue 2016) of three sexual encounters M.J. had
    with other people.
    Dady had provided notice before trial that he intended
    to use evidence under § 27-412 to demonstrate M.J.’s prior
    knowledge and sexual activities. Specifically, Dady wanted to
    question M.J. concerning certain episodes of sexual conduct
    between M.J. and her half sister, between M.J. and her cousin,
    and between M.J. and her brother. The encounters with the half
    sister occurred before the events with Dady, the encounter with
    her cousin occurred after the incident with Dady, and the tim-
    ing of the encounter with her brother was unknown. The State
    filed a motion in limine to exclude evidence of the encounters,
    asserting that the encounters were not relevant.
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    STATE v. DADY
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    304 Neb. 649
    The court initially determined that Dady would not be
    allowed to question M.J. concerning the three encounters.
    However, the court did allow Dady to question M.J.’s mother
    about one hospitalization and whether it occurred because of an
    incident between M.J. and her half sister.
    As the trial progressed and the court learned more about the
    nature of the case, the court reconsidered its initial ruling on
    the motion in limine. Before cross-examination of M.J. began,
    the court reversed its prior decision and indicated to both par-
    ties that it was going to allow some questioning about M.J.’s
    previous sexual encounters because such evidence could dem-
    onstrate M.J.’s ability to appraise the nature of her conduct.
    After the cross-examination of M.J. began, the court took a
    recess, dismissed the jury, and reversed its decision again, back
    to its original position. The court specified that it would allow
    questioning which could tend to prove M.J. knew what vaginal
    intercourse is or what sexual arousal is, but would not allow
    the further questioning of M.J. about the past sexual encoun-
    ters. The court reasoned that the information to be obtained
    from questioning about the encounters and the subsequent hos-
    pitalizations was not relevant.
    The court denied Dady’s posttrial motion for judgment
    notwithstanding the verdict or for a new trial. At the sentenc-
    ing hearing, the judge took into account Dady’s unfortunate
    upbringing, his maturity level, and his previous criminal his-
    tory. The court noted that Dady had already received coun-
    seling and education concerning appropriate sexual conduct
    before the incident in this case occurred. The court noted
    that probation and education did not deter Dady. The court
    explained the serious nature of the offense and took into con-
    sideration the likelihood that Dady would reoffend. The court
    sentenced Dady to 20 to 25 years’ imprisonment.
    ASSIGNMENTS OF ERROR
    Dady asserts, renumbered and rephrased, that the trial court
    erred by (1) giving a jury instruction that incorrectly stated
    the law; (2) failing to give Dady’s proposed jury instruction;
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    STATE v. DADY
    Cite as 
    304 Neb. 649
    (3) failing to find the evidence presented at trial was insuf-
    ficient to sustain a guilty verdict; (4) admitting evidence
    that M.J. was diagnosed with ADHD, ODD, and DMDD; (5)
    excluding evidence of M.J.’s other sexual conduct; (6) deny-
    ing Dady’s motion for a new trial; and (7) imposing an exces-
    sive sentence.
    STANDARD OF REVIEW
    [1] Whether jury instructions given by a trial court are cor-
    rect is a question of law. When dispositive issues on appeal
    present questions of law, an appellate court has an obligation
    to reach an independent conclusion irrespective of the decision
    of the court below.2
    [2] Jury instructions are subject to the harmless error rule,
    and an erroneous jury instruction requires reversal only if the
    error adversely affects the substantial rights of the complain-
    ing party.3
    [3] Harmless error review looks to the basis on which
    the trier of fact actually rested its verdict; the inquiry is not
    whether in a trial that occurred without the error a guilty ver-
    dict surely would have been rendered, but, rather, whether the
    actual guilty verdict rendered in the questioned trial was surely
    unattributable to the error.4
    [4] To establish reversible error from a court’s refusal to
    give a requested instruction, an appellant has the burden to
    show that (1) the tendered instruction is a correct statement
    of the law, (2) the tendered instruction is warranted by the
    evidence, and (3) the appellant was prejudiced by the court’s
    refusal to give the tendered instruction.5
    [5] When examining a sufficiency of the evidence claim,
    the relevant question for an appellate court is whether, after
    2
    State v. McCurry, 
    296 Neb. 40
    , 
    891 N.W.2d 663
    (2017).
    3
    Rodriguez v. Surgical Assocs., 
    298 Neb. 573
    , 
    905 N.W.2d 247
    (2018).
    4
    State v. Huerta, 
    26 Neb. Ct. App. 170
    , 
    917 N.W.2d 175
    (2018).
    5
    State v. Mueller, 
    301 Neb. 778
    , 
    920 N.W.2d 424
    (2018), modified on
    denial of rehearing 
    302 Neb. 51
    , 
    921 N.W.2d 584
    (2019).
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    STATE v. DADY
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    viewing the evidence in the light most favorable to the pros-
    ecution, any rational trier of fact could have found the essential
    elements of the crime beyond a reasonable doubt.6
    [6] Apart from rulings under the residual hearsay exception,
    an appellate court reviews for clear error the factual findings
    underpinning a trial court’s hearsay ruling and reviews de novo
    the court’s ultimate determination whether the court admitted
    evidence over a hearsay objection or excluded evidence on
    hearsay grounds.7
    [7] Evidentiary questions committed to the discretion of the
    trial judge,8 orders denying a motion for new trial,9 and claims
    of excessive sentencing10 are all reviewed for abuse of discre-
    tion. An abuse of discretion occurs when a trial court’s deci-
    sion is based upon reasons that are untenable or unreasonable
    or if its action is clearly against justice or conscience, reason,
    and evidence.11
    ANALYSIS
    Dady asserts it was reversible error for the district court to
    give instruction No. 6 and fail to give his proposed instruc-
    tion. Dady asserts the evidence presented at trial failed to
    prove that M.J. suffered from a mental impairment and that
    Dady knew of M.J.’s mental impairment. Dady also asserts
    that the testimony of M.J.’s mental health diagnoses was
    inadmissible hearsay. Dady argues that he was deprived of a
    fundamentally fair trial when the court refused to allow him
    to elicit testimony of M.J.’s previous hospitalizations and to
    link the hospitalizations to M.J.’s previous sexual encoun-
    ters. Lastly, Dady asserts that the trial court did not properly
    6
    See State v. McCurdy, 
    301 Neb. 343
    , 
    918 N.W.2d 292
    (2018).
    7
    State v. Mora, 
    298 Neb. 185
    , 
    903 N.W.2d 244
    (2017).
    8
    See State v. Briggs, 
    303 Neb. 352
    , 
    929 N.W.2d 65
    (2019).
    9
    Briggs, supra note 8.
    10
    See State v. Erickson, 
    281 Neb. 31
    , 
    793 N.W.2d 155
    (2011).
    11
    State v. Gibson, 
    302 Neb. 833
    , 
    925 N.W.2d 678
    (2019).
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    weigh several factors, including Dady’s social background
    and desire for rehabilitation, when imposing his sentence. As
    will be explained below, we find the court erred in includ-
    ing the ambiguous phrase “because of the victim’s age” in
    instruction No. 6 and in overruling Dady’s hearsay objection
    to the testimony of M.J.’s mother about M.J.’s mental health
    diagnoses. However, we find both errors to be harmless.
    M.J.’s mother’s testimony was cumulative to Kelly’s testi-
    mony, and the ambiguity of instruction No. 6 was clarified
    by a combination of the jury instructions’ being taken as a
    whole and the manner of the State’s presentation of its case
    and closing arguments.
    Jury Instructions
    Dady asserts that instruction No. 6 misstates the law because
    age is not a permissible consideration under § 28-319(1)(b)
    in determining whether a victim was mentally or physically
    incapable of resisting or appraising the nature of his or her
    conduct. Alternatively, Dady asserts that if age is a permis-
    sible consideration under § 28-319(1)(b), instruction No. 6
    was misleading because it indicated that based upon a simple
    determination that M.J. was 10 years old, the jury could find
    M.J. mentally or physically incapable of resisting or apprais-
    ing the nature of her conduct. Dady argues that his proposed
    instruction should have been given instead because it would
    have properly informed the jury that “mentally or physically
    incapable of resisting or appraising the nature of . . . her con-
    duct” under § 28-319(1)(b) requires the jury to find that M.J.
    had a significant abnormality.
    We disagree with Dady’s argument that by omitting any
    explicit reference to age in § 28-319(1)(b), while specify-
    ing age in the statutory rape provision of subsection (1)(c),
    the Legislature clearly indicated that age is not a permis-
    sible consideration in determining whether subsection (1)(b)
    was violated. We recognize that other states have statutory
    rape laws directed at persons near the age of majority who
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    sexually prey on younger children.12 Nebraska does not. The
    only statute relevant to such scenario is § 28-319(1)(b). The
    statutory rape provisions of § 28-319(1)(c), and of other juris-
    dictions addressing older individuals’ preying upon children,
    are distinguishable from § 28-319(1)(b) insofar as the victim
    of the specified age is conclusively regarded under such
    statutes as incapable of giving consent to the sexual act.13
    By specifying age in subsection (1)(c) and not in subsection
    (1)(b) of § 28-319, the Legislature was making a distinction
    between statutory rape under subsection (1)(c) and a violation
    of subsection (1)(b) requiring an individualized inquiry into
    the victim’s capacity. Section 28-319(1)(b) does not create a
    statutory presumption based on age that the victim is inca-
    pable of consent.
    [8,9] It does not follow, however, that age is irrelevant to
    determining a victim’s capacity for purposes of § 28-319(1)(b).
    Under § 28-319(1)(b), whether the victim was incapable of con-
    sent depends upon a specific inquiry into the victim’s capacity,
    i.e., whether the victim was mentally or physically incapable
    of resisting or appraising the nature of his or her conduct. We
    have long held that § 28-319(1)(b) applies to a wide array of
    situations that affect a victim’s capacity, including age.14
    Thus, while we would agree with Dady’s contention that
    in charges brought under § 28-319(1)(b), a jury cannot find
    inability to consent in a manner similar to such a finding under
    statutory rape provisions based exclusively on age, we disagree
    with Dady’s contention that a victim’s age is an irrelevant
    consideration in determining whether a specific victim was
    mentally or physically incapable of resisting or appraising the
    nature of his or her conduct. The jury is permitted to conclude
    12
    See, e.g., Colo. Rev. Stat. Ann. § 18-3-402(1)(d) (West Cum. Supp. 2018)
    (victim less than 15 years old with 4-year age gap between victim and
    perpetrator).
    13
    See George v. State, 
    61 Neb. 669
    , 
    85 N.W. 840
    (1901).
    14
    See State v. Collins, 
    7 Neb. Ct. App. 187
    , 
    583 N.W.2d 341
    (1998).
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    the victim was mentally or physically incapable of resisting
    or appraising the nature of his or her conduct based upon evi-
    dence that a child of the victim’s age ordinarily lacks sufficient
    brain development to have such capacity and that the victim
    was developmentally normal for his or her age.
    But we agree with Dady that instruction No. 6 was poten-
    tially misleading as to whether the jury could find inabil-
    ity to consent in a manner similar to such a finding under
    statutory rape provisions based on age. Instruction No. 6
    explained to the jury the respective definitions of the terms
    “mentally incapable” and “mental impairment.” “Mentally
    incapable” was correctly defined inasmuch as it described a
    victim “incapable of resisting or appraising the nature of her
    sexual conduct.” “Mental impairment” was correctly defined
    as a “victim’s impairment . . . so severe that she lacked the
    capacity to consent to sexual conduct with the Defendant.”
    The problem is that the definition of “mentally incapable”
    was prefaced with the phrase “because of the victim’s age or
    mental impairment.”
    We disapprove of this broad “because of the victim’s age”
    phrasing. The phrase “because of the victim’s age” is ambigu-
    ous as to whether age can be the sole basis for a finding that
    the victim was mentally incapable, without an individualized
    assessment of the victim’s maturity. The definition of “men-
    tally incapable” could have been excluded from the court’s
    instructions, as the language of § 28-319(1)(b) is sufficiently
    clear that a definitional instruction would not normally be nec-
    essary. Because instruction No. 6 was ambiguous and capable
    of misleading the jury, it was erroneous.
    [10] But this does not end our inquiry. Alleged errors in a
    jury instruction are examined using a two-step process.15 First,
    the court reviews the case based on the errors assigned and
    argued, or it may find plain error. Second, when an error is
    15
    See, Rodriguez, supra note 3; State v. Botts, 
    26 Neb. Ct. App. 544
    , 
    921 N.W.2d 151
    (2018).
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    identified, the court considers whether the error was harmless
    or prejudicial.16 Jury instructions are subject to the harmless
    error rule, and an erroneous jury instruction requires reversal
    only if the error adversely affects the substantial rights of
    the complaining party.17 When examining for harmless error,
    the court may look at a variety of factors including the jury
    instructions as a whole, the evidence presented at trial, and the
    closing arguments.18
    We conclude that the potentially misleading ambiguity of
    the phrase “because of the victim’s age” in instruction No.
    6 did not in fact mislead the jury. The jury’s verdict was
    surely unattributable to this erroneous instruction, because
    the instructions taken as a whole, combined with the evidence
    and arguments presented at trial, clarified the ambiguity of
    “because of the victim’s age” such that the jury understood
    “age” in this context to be a subjective review of M.J.’s devel-
    opmental age.
    Other instructions correctly provided that the jury must
    apply the law in the instructions and that no one instruction
    contains all of the law applicable to this case. One correctly
    provided the specific elements of the charge using the language
    of § 28-319(1)(b), instructing the jury that it could not find
    Dady guilty without determining beyond a reasonable doubt
    that he knew or should have known that M.J. was mentally or
    physically incapable of resisting or appraising the nature of
    her conduct. Instruction No. 6 also correctly indicated that the
    inquiry was victim specific.
    To the extent that the ambiguity of the “because of the vic-
    tim’s age” phrasing was not fully clarified by the surrounding
    16
    See, Rodriguez, supra note 3; Botts, supra note 15.
    17
    Rodriguez, supra note 3.
    18
    See, State v. Smith, 
    302 Neb. 154
    , 
    922 N.W.2d 444
    (2019); Nguyen v.
    Rezac, 
    256 Neb. 458
    , 
    590 N.W.2d 375
    (1999); Huerta, supra note 4; State
    v. Beamon, 
    336 Wis. 2d 438
    , 
    804 N.W.2d 706
    (Wis. App. 2011); Johnson
    v. State, 
    94 So. 3d 1209
    (Miss. App. 2011).
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    instructions alone, it was clarified by the State’s theory of
    the case, the evidence, and the closing arguments. The State
    presented extensive evidence linking age and normal brain
    development to M.J.’s specific cognitive abilities. Kelly, the
    treating emergency room physician, opined that M.J. was inca-
    pable of appraising the nature of sexual conduct. Kelly based
    this opinion on her understanding of normal child cognitive
    development and on the time she spent with M.J. The State
    thus presented unrefuted evidence that a normal 10-year-old
    child’s level of cognitive development renders the child unable
    to appraise the nature of sexual conduct and that M.J. appeared
    to be a normal 10-year-old. Furthermore, the jurors were able
    to see M.J. testify and draw their own conclusions about M.J.’s
    mental capabilities. The court may consider the facts of the
    case when determining whether a jury instruction was confus-
    ing or misleading.19
    Where a potential ambiguity in an instruction exists, the
    prosecutor may assist the jury in resolving such ambigu-
    ity during closing arguments.20 The State went step by step
    during closing arguments through the elements of the crime
    charged, explaining what “age” in instruction No. 6 meant.
    The prosecution asked the jury when determining mental
    and physical capacity to consider the evidence presented at
    trial that M.J. appeared to be a normal 10-year-old and that
    a normally developed 10-year-old brain does not have the
    capacity to appraise the nature of sexual conduct. The State
    made it clear that the reference “because of the victim’s age”
    in instruction No. 6 was a case-specific inquiry based on the
    evidence presented.
    Viewing instruction No. 6 in context, the jury had a clear
    and correct understanding of how age related to the question
    of M.J.’s mental capability of resisting or appraising the nature
    19
    See Nguyen, supra note 18.
    20
    See, Middleton v. McNeil, 
    541 U.S. 433
    , 
    124 S. Ct. 1830
    , 
    158 L. Ed. 2d 701
    (2004); Huerta, supra note 4.
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    of her conduct. When the instructions as a whole are combined
    with the body of evidence on the record and the clarification
    provided by the prosecution in the closing arguments, the
    jury was not misled by the ambiguous phrasing of instruction
    No. 6. Rather, the jury properly understood that age was a con-
    sideration in determining M.J.’s level of mental development
    or developmental age. When considering the instructions as a
    whole, the evidence presented, and the clarification provided
    in closing arguments, we find the erroneous jury instruction to
    be harmless.
    Dady also contends that his proposed instruction should
    have been given instead of instruction No. 6.
    To establish reversible error from a court’s refusal to
    give a requested instruction, an appellant has the burden
    to show that (1) the tendered instruction is a correct state-
    ment of the law, (2) the tendered instruction is warranted
    by the evidence, and (3) the appellant was prejudiced by
    the court’s refusal to give the tendered instruction.”21
    Dady’s proposed jury instruction provided in relevant part:
    “Mentally or physically incapable of resisting or
    appraising the nature of her conduct” shall mean a sig-
    nificant abnormality on the part of the victim such as
    severe intoxication or other substantial mental or physi-
    cal impairment. In order for a mental impairment to
    be substantial, it must be severe; a person in this cat-
    egory is treated as equivalent to a severely intoxicated
    or an unconscious person. Not every mental challenge or
    impairment is so severe that the person lacks the capacity
    to resist or appraise the nature of her conduct.
    Dady’s proposed instruction was based on In re Interest of
    K.M., where we said:
    To render an individual incapable to consent to sexual
    conduct, a mental impairment must be severe. A person
    in this category is treated as equivalent to a severely
    21
    Mueller, supra note 
    5, 301 Neb. at 789
    , 920 N.W.2d at 434.
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    intoxicated or an unconscious person. Thus, not every
    mental challenge or impairment is so severe that the per-
    son lacks the capacity to consent. We have said lack-of-
    capacity sexual assault under § 28-319(1)(b) requires on
    the part of the victim “a significant abnormality, such as
    severe intoxication or other substantial mental or physi-
    cal impairment.”22
    This passage from In re Interest of K.M. is one way of explain-
    ing the concept of mental incapacity as warranted from the
    facts in that case, which involved an alleged mental impair-
    ment. However, as we have already illustrated, In re Interest
    of K.M. should not be construed as exhaustively defining every
    situation to which § 28-319(1)(b) could be applied. A victim
    can be incapable of consent without suffering from a “mental
    impairment.”23
    Dady’s proposed instruction was not a correct recitation of
    our holding from In re Interest of K.M., because it incorrectly
    indicated that “[m]entally or physically incapable” is limited to
    a “significant abnormality” constituting a “substantial mental
    or physical impairment.” A child can be incapable of resisting
    or appraising the nature of his or her conduct without suffer-
    ing from an “abnormality” or “substantial mental or physical
    impairment.” The court did not err in denying Dady’s proposed
    instruction, because, as applied to the facts of this matter, it
    was not a correct statement of the law.
    Sufficiency of Evidence
    In his challenge to the sufficiency of the evidence, Dady
    argues that there was insufficient evidence to support a find-
    ing that M.J. suffered from a “mental impairment.”24 He does
    not contest the sufficiency of the evidence to support M.J.’s
    22
    In re Interest of K.M., supra note 
    1, 299 Neb. at 645
    , 910 N.W.2d at 89
    (emphasis supplied).
    23
    See 
    id. 24 Brief
    for appellant at 22.
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    inability to consent by virtue of being mentally or physically
    incapable of resisting or appraising the nature of her conduct
    for any other reason. Dady also challenges the sufficiency of
    the evidence to support the necessary element that he knew
    or should have known that M.J., for whatever reason, was
    mentally or physically incapable of resisting or appraising the
    nature of her conduct.
    [11] In reviewing a criminal conviction for a sufficiency
    of the evidence claim, whether the evidence is direct, circum-
    stantial, or a combination thereof, the standard is the same: An
    appellate court does not resolve conflicts in the evidence, pass
    on the credibility of the witnesses, or reweigh the evidence;
    such matters are for the finder of fact.25 The relevant question
    for an appellate court is whether, after viewing the evidence in
    the light most favorable to the prosecution, any rational trier
    of fact could have found the essential elements of the crime
    beyond a reasonable doubt.26 And when there are alterna-
    tive theories of guilt presented to the jury, we will affirm the
    verdict if the evidence is sufficient to support any alternative
    theory presented.27
    Because we find the evidence sufficient to support a deter-
    mination that M.J. was incapable of consent by virtue of her
    stage of development, we need not consider whether the evi-
    dence was sufficient to support the State’s alternative theory
    that by virtue of M.J.’s diagnoses, she suffered a “mental
    impairment.”28 As stated, expert testimony explained the brain
    capacities and reasoning capabilities of a normal 10-year-old.
    Kelly testified that a normal 10-year-old does not have the
    capacity to appraise the nature of sexual conduct. Kelly then
    drew on her understanding of child brain development and
    25
    State v. Thomas, 
    303 Neb. 964
    , 
    932 N.W.2d 713
    (2019).
    26
    
    Id. 27 See
    McCurdy, supra note 6.
    28
    See In re Interest of K.M., supra note 
    1, 299 Neb. at 645
    , 910 N.W.2d at
    89. Accord McCurdy, supra note 6.
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    her direct interactions with M.J. when she opined that M.J.
    could not appraise the nature of sex. The jury was also able
    to observe M.J. and draw its own conclusions about M.J.’s
    capabilities, when she testified approximately 9 months after
    the incident.
    We also find the evidence sufficient for the jury to conclude
    that Dady knew M.J. was incapable of resisting or apprais-
    ing the nature of her conduct when she agreed to have sex
    with someone nearly twice her age in exchange for an “MP3
    player.” There was evidence presented that M.J. acted as a
    normal child when she and Dady spent time together. Prior
    to the incident, M.J.’s stepfather had a specific conversation
    with Dady explaining that M.J. was 10 years old. M.J. rode
    around the neighborhood on a “bike [with] flowers on it.”
    When Dady wanted M.J. to come to the mall with him, M.J.
    said she would have to go ask her mother. On another occa-
    sion, M.J. had to cut short her visit with Dady in order to go
    home to eat lunch and to clean her room. Such facts indicate
    Dady had sufficient time to interact with M.J. and observe
    M.J.’s level of maturity and understanding. And when Dady
    was interviewed by law enforcement, he repeatedly empha-
    sized that M.J. claimed to be older, thereby indicating he had
    some knowledge that M.J.’s age was a factor for whether she
    had the capacity to appraise the nature of her conduct. By the
    end of the police interview, Dady admitted M.J. appeared to
    be around 10 or 11 years old.
    When viewing the evidence in the light most favorable to
    the prosecution, a rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt.29
    A rational jury could conclude that M.J. was incapable of
    appraising the nature of her conduct and that Dady knew
    or should have known that. We find no merit to Dady’s
    arguments that the evidence was insufficient to support the
    jury’s verdict.
    29
    McCurdy, supra note 6.
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    Hearsay
    [12] Dady contends that the testimony by M.J.’s mother and
    by Kelly concerning M.J.’s diagnoses was hearsay. However,
    the discussion between M.J., M.J.’s mother, and Kelly concern-
    ing M.J.’s past diagnoses falls squarely within Neb. Rev. Stat.
    § 27-803(3) (Reissue 2016) as a statement describing medical
    history. Evidence is admissible under § 27-803(3) when the
    party seeking to introduce the evidence demonstrates
    (1) that the circumstances under which the statements
    were made were such that the declarant’s purpose in mak-
    ing the statements was to assist in the provision of medi-
    cal diagnosis or treatment and (2) that the statements were
    of a nature reasonably pertinent to medical diagnosis or
    treatment by a medical professional.”30
    Although Kelly did not personally diagnose M.J., she testi-
    fied that she learned of the diagnoses while doing a patient
    interview for the purpose of treating M.J. during her visit to the
    emergency room. She further testified that obtaining a patient
    history is an important part of her job and that she attempts to
    get a medical history from every patient she treats. The tes-
    timony of Kelly satisfies the requirements for evidence to be
    admissible under § 27-803(3).
    [13] Although a Confrontation Clause objection was made
    during the motion to strike, the objection was not asserted
    or argued on appeal. To be considered by an appellate court,
    an alleged error must be both specifically assigned and spe-
    cifically argued in the brief of the party asserting the error.31
    Furthermore, the motion to strike was made only in relation to
    M.J.’s mother’s testimony, and no Confrontation Clause objec-
    tion was raised as to Kelly’s testimony. The court did not err
    in admitting Kelly’s testimony of M.J.’s mental health diagno-
    ses over Dady’s hearsay objection. M.J’s mother’s testimony
    regarding M.J.’s diagnoses was also hearsay, but did not fall
    30
    Mora, supra note 
    7, 298 Neb. at 193-94
    , 903 N.W.2d at 253.
    31
    Anderson v. Babbe, ante p. 186, 
    933 N.W.2d 813
    (2019).
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    into a hearsay exception. However, the testimony of M.J.’s
    mother was cumulative of Kelly’s admissible statements and
    thus qualifies as harmless error.32
    Exclusion of § 27-412
    Evidence
    Dady asserts that his Sixth Amendment rights were violated
    by his being prevented from cross-examining M.J. concerning
    her other sexual encounters. Dady asserts that M.J.’s previous
    sexual behavior is relevant to show that she comprehended
    the nature of her sexual conduct. Evidence under § 27-412
    should be admitted if it is of sufficient relevance to estab-
    lish that the victim had prior knowledge of the same kind of
    sexual activities of which the defendant is accused.33 Where
    the Nebraska Evidence Rules commit the evidentiary question
    at issue to the discretion of the trial court, an appellate court
    reviews the admissibility of evidence for an abuse of discre-
    tion. An abuse of discretion occurs when a trial court’s deci-
    sion is based upon reasons that are untenable or unreasonable
    or if its action is clearly against justice or conscience, reason,
    and evidence.34
    In its motion in limine, the State argued that the evidence
    put forward by Dady was not relevant to the case at hand
    because the other encounters did not involve sexual inter-
    course. Furthermore, one of the encounters occurred after the
    incident with Dady, and the timing of one of the other two
    encounters was also disputed. The State argued that to the
    extent the other encounters did not involve intercourse and
    occurred after the incident with Dady, they were not relevant
    to show that M.J. could appraise the nature of sexual conduct
    at the time of the incident.
    32
    See State v. Hood, 
    301 Neb. 207
    , 
    917 N.W.2d 880
    (2018).
    33
    See State v. Earl, 
    252 Neb. 127
    , 
    560 N.W.2d 491
    (1997).
    34
    See Briggs, supra note 8.
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    We have previously held such differences to be enough to
    warrant the exclusion of prior encounters.35 In State v. Earl,36
    the defendant wanted to enter evidence of the 6-year-old vic-
    tim’s previous sexual conduct to show that the victim had
    an alternate source for knowledge about sex acts. The victim
    had had an encounter with two of his similarly aged ­cousins.
    During that encounter, the victim and his female cousins
    played house and lay on each other naked. The encounter
    between the victim and the defendant in State v. Earl involved
    a male-on-male assault that included fellatio. In considering
    the defendant’s request under the previous rape shield statute,
    Neb. Rev. Stat. § 28-321 (Reissue 1995), the court concluded
    the incident involving the victim and his cousins was too dif-
    ferent to be relevant in the defendant’s case.37
    In the present case, one of the encounters clearly occurred
    after the incident with Dady and the second encounter’s tim-
    ing is undetermined. This supports the ruling that the proffered
    evidence was irrelevant to showing that M.J. could appraise
    the nature of sexual intercourse at the time of the incident with
    Dady. Similarly to the comparison in State v. Earl, the prof-
    fered evidence of M.J.’s past encounters is categorically differ-
    ent from the encounter with Dady. M.J.’s previous encounters
    involved sexual touching of similarly aged children. M.J.’s
    encounter with Dady was a 10-year-old having sexual inter-
    course with an 18-year-old.
    The trial court’s ruling did not prevent Dady from presenting
    an effective defense; nor did it violate Dady’s constitutional
    rights. Dady was allowed to cross-examine M.J.’s mother con-
    cerning the hospitalization related to the one encounter that
    occurred before the events of the present case. On these facts,
    35
    See, State v. Sanchez, 
    257 Neb. 291
    , 
    597 N.W.2d 361
    (1999); Earl, supra
    note 33.
    36
    Earl, supra note 33.
    37
    See 
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    we cannot say that the trial court’s ruling was unreasonable or
    untenable, nor that it was clearly against justice or conscience,
    reason, and evidence. The district court’s ruling on the admis-
    sibility of M.J.’s other sexual encounters was not an abuse
    of discretion.
    Having addressed the propriety of the court’s final ruling
    regarding the admissibility of M.J.’s other sexual encounters,
    we address Dady’s assertion that there was an irregularity in
    the proceedings of the court which prevented him from having
    a fair trial.38 Dady argues that when the district court reversed
    its decision and informed defense counsel it would allow
    some of the § 27-412 evidence initially excluded, the defense
    adjusted its trial strategy to make use of this evidence.
    Dady began questioning M.J. about certain events and was
    stopped during the cross-examination. The district court then
    declared it was reversing its decision again. Dady contends that
    the adjustment of trial strategy resulted in defense counsel’s
    eliciting testimony about the hospitalizations in order to attrib­
    ute the hospitalizations to M.J.’s previous sexual encounters
    rather than the mental-health-related reasons given by M.J.’s
    mother at trial.
    The evidence proposed in the offer of proof was intended
    to provide the jury with an alternate explanation for two hos-
    pitalizations. Dady had already been able to offer such an
    explanation for one of those hospitalizations through the cross-
    examination of M.J.’s mother. The other sexual encounter that
    resulted in a hospitalization occurred after the incident with
    Dady. As explained above, such evidence is not relevant in
    establishing what M.J. knew about sex at the time of the inci-
    dent. Nor is it relevant to show the state of M.J.’s mental health
    at the time of the incident.
    The initial ruling on the evidence was based on Dady’s
    pretrial notice under § 27-412 and the State’s corresponding
    motion in limine. A motion in limine is a procedural step by
    38
    See Neb. Rev. Stat. § 29-2101 (Reissue 2016).
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    which a court makes a preliminary determination; it is not a
    final order.39 A change in a ruling on admissibility is not de
    facto unfair, and the alleged change in trial strategy is not
    supported in the record. Defense counsel began questioning
    M.J.’s mother about the hospitalizations before any change
    from the pretrial ruling occurred. Therefore, no irregular-
    ity which could be considered unfair is demonstrable on
    these facts.
    Having addressed all of the grounds for Dady’s motion for
    a new trial, we affirm the district court’s denial of the motion
    for a new trial.
    Excessive Sentence
    [14] The sentence ordered is within the statutory guide-
    lines and will not be altered unless there was an abuse of
    discretion.40
    When imposing a sentence, a sentencing judge should
    consider the defendant’s (1) age, (2) mentality, (3) educa-
    tion and experience, (4) social and cultural background,
    (5) past criminal record or record of law-abiding conduct,
    and (6) motivation for the offense, as well as (7) the
    nature of the offense and (8) the violence involved in the
    commission of the crime. The appropriateness of a sen-
    tence is necessarily a subjective judgment and includes
    the sentencing judge’s observation of the defendant’s
    demeanor and attitude and all the facts and circumstances
    surrounding the defendant’s life.41
    Dady asserts that the district court abused its discretion by not
    considering all of the required factors. The record shows, how-
    ever, that the district court weighed the correct factors related
    to Dady’s age, family background, mentality, criminal his-
    tory, unsuccessful discharge from probation related to juvenile
    39
    See Golnick v. Callender, 
    290 Neb. 395
    , 
    860 N.W.2d 180
    (2015).
    40
    See State v. Erickson, supra note 10.
    41
    State v. Chairez, 
    302 Neb. 731
    , 740, 
    924 N.W.2d 725
    , 732 (2019).
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    charges, lack of effort in pursuing education and treatment
    while on probation, and potential to reoffend. Such consider-
    ation is not an abuse of discretion. Consequently, we affirm the
    district court’s sentence.
    CONCLUSION
    For the foregoing reasons, the judgment of the district court
    is affirmed.
    Affirmed.