State v. Boyd , 28 Neb. Ct. App. 874 ( 2020 )


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    STATE v. BOYD
    Cite as 
    28 Neb. Ct. App. 874
    State of Nebraska, appellant and cross-appellee,
    v. Paula Boyd, appellee and cross-appellant.
    ___ N.W.2d ___
    Filed September 22, 2020.   No. A-19-753.
    1. Trial: Convictions: Evidence: Appeal and Error. An appellate court
    will sustain a conviction in a bench trial of a criminal case if the prop-
    erly admitted evidence, viewed and construed most favorably to the
    State, is sufficient to support that conviction. In making this determi-
    nation, an appellate court does not resolve conflicts in the evidence,
    pass on the credibility of witnesses, evaluate explanations, or reweigh
    the evidence presented, which are within a fact finder’s province for
    disposition. Instead, the relevant question 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.
    2. 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.
    3. 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 witnesses, or reweigh the evidence; such matters
    are for the finder of fact. The relevant question for an appellate court is
    whether, after reviewing 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.
    4. Criminal Law: Statutes: Appeal and Error. When analyzing the text
    of a criminal statute, an appellate court follows settled principles of
    statutory construction.
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    STATE v. BOYD
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    28 Neb. Ct. App. 874
    5. Criminal Law: Statutes. Penal statutes are considered in the context of
    the object sought to be accomplished, the evils and mischiefs sought to
    be remedied, and the purpose sought to be served.
    6. ____: ____. Effect must be given, if possible, to all parts of a penal
    statute; no sentence, clause, or word should be rejected as meaningless
    or superfluous if it can be avoided.
    7. Statutes. In the absence of anything indicating otherwise, statutory lan-
    guage is to be given its plain and ordinary meaning.
    8. ____. The legal principle of expressio unius est exclusio alterius (the
    expression of one thing is the exclusion of the others) recognizes the
    general principle of statutory construction that an expressed object of a
    statute’s operation excludes the statute’s operation on all other objects
    unmentioned by the statute.
    9. Contracts. Contract actions are created to protect the interest in hav-
    ing promises performed. Contract obligations are imposed because of
    conduct of the parties manifesting consent, and are owed only to the
    specific individuals named in the contract.
    10. Statutes: Words and Phrases. The term “context” in the statutory
    phrase “unless the context otherwise requires” means the context within
    which a defined statutory term is used within the statute’s substan-
    tive provisions.
    11. Statutes. It is a general principle of statutory construction that to the
    extent there is a conflict between two statutes, the specific statute con-
    trols over the general statute.
    12. 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.
    13. 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.
    14. 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.
    15. 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.
    16. Sentences. The sentencing court is not limited in its discretion to any
    mathematically applied set of factors.
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    17. ____. 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.
    18. ____. 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.
    19. 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.
    Appeal from the District Court for Douglas County: W.
    Russell Bowie III, Judge. Affirmed.
    Douglas J. Peterson, Attorney General, and Erin E. Tangeman,
    and Donald W. Kleine, Douglas County Attorney, and Katie
    Benson for appellant.
    Mallory N. Hughes, of Dornan, Troia, Howard, Breitkreutz
    & Conway, P.C., L.L.O., for appellee.
    Moore, Chief Judge, and Riedmann and Welch, Judges.
    Welch, Judge.
    I. INTRODUCTION
    Paula Boyd was convicted of abuse of a vulnerable adult,
    a Class IIIA felony, and was sentenced to 6 months’ proba-
    tion and ordered to pay a $5,000 fine. The State has appealed,
    contending that the sentence imposed was excessively lenient.
    Boyd has cross-appealed, contending that the evidence was
    insufficient to support her conviction. For the reasons set forth
    here, we affirm Boyd’s conviction and sentence.
    II. STATEMENT OF FACTS
    Sometime in 2017, Boyd sold her east coast home and
    planned to move to the west coast. During her cross-country
    trip, she stopped in Omaha, Nebraska, in May to visit her
    sister and their 89-year-old mother, Dorothy Pistillo. During
    Boyd’s nearly monthlong stay in Omaha, she resided with
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    her mother to help care for her in order to relieve her sister
    from those duties.
    On June 15, 2017, Boyd called the 911 emergency dispatch
    service and firefighters and paramedics arrived at Pistillo’s
    home shortly before 11:30 a.m. Boyd met responders at the
    front door. Boyd reported that her mother had been on the
    floor “for a few days,” had not been eating, and would not
    get up. One of the first responders described “a pungent, bad
    odor” that smelled like “rotten fecal matter” coming from the
    residence. Another described the odor emanating from the
    home as smelling like “feces” and a “strong urine smell,”
    and still another described the odor as smelling like “death.”
    First responders found Pistillo lying on the floor of the living
    room with her body, from the shoulders down, covered with a
    blanket and her head resting on a pillow. Pistillo was covered
    in her own fecal matter and urine, and the carpet was stuck to
    her body.
    After an Omaha firefighter and paramedic spoke with
    Pistillo, he decided that she needed further care and decided
    to transport her to the hospital despite Pistillo’s statement that
    she did not want to go to the hospital. En route to the hospi-
    tal, Pistillo received inravenous fluids and oxygen. During the
    ambulance transport to the hospital, one paramedic described
    Pistillo as “alert and oriented.” However, another paramedic
    stated that although Pistillo was “very weak and fragile,”
    Pistillo was able to answer some questions and “seemed to
    understand initially what was going on,” but by the time that
    the ambulance reached the hospital, Pistillo “seemed a little
    more confused [and] not able to answer all questions.”
    At the hospital, Pistillo reported to medical personnel that
    “she [felt] terrible [and] ha[d] pain everywhere.” Pistillo’s inju-
    ries included open sores to her right buttocks area, as well as to
    her right back area, knee, foot, and toes. Boyd told doctors that
    she “ha[d] tried to get [her mother] to go to the doctor recently
    but [her mother] refus[ed].”
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    Hospital personnel contacted law enforcement to report con-
    cerns that Pistillo may have been abused or neglected. An
    Omaha police detective spoke with Pistillo in her hospital
    room and stated that Pistillo “appeared confused” and that
    Pistillo’s answers “didn’t make a lot of sense.” She further
    testified that, based upon her physical observations of Pistillo,
    it appeared to the detective that Pistillo needed a caretaker and
    that Pistillo needed someone to assist her with feeding, bath-
    ing, and cleaning herself.
    Later that afternoon, officers returned to Pistillo’s residence
    to execute a search warrant. Later that day, other officers
    contacted Boyd. An Omaha police report stated that Boyd
    informed officers that she had moved into her mother’s home
    about 4 weeks prior and that Boyd’s sister had “normally
    watched over their mother until [Boyd] started living there.”
    Boyd informed one of the officers that
    her mother had fallen on the living room floor in front of
    the fireplace about a week ago and has been laying there
    since. She said her mother has not eaten all week and has
    urinated/defecated on herself the time she has been on
    the floor. BOYD pointed out the spot on the floor where
    her mother was laying which she said she cleaned up the
    mess. [The reporting officer] noticed what appeared to
    be a spot on the carpet where someone had attempted to
    clean the carpet due to the swirl pattern on the carpet.
    [The reporting officer] asked BOYD why she did not call
    911 for help or her mother[’s] doctor and she said her
    mother told her not to. BOYD said she called 911 this
    morning for a medic to check her mother. [The report-
    ing officer] called dispatch who advised [the reporting
    officer] they received a 911 call from [the] above address
    today at 11:20 from “Nick”. [The reporting officer] did
    not speak to “Nick”, Mother, or [Boyd’s sister] who were
    not on call.
    Boyd was charged with abuse of a vulnerable adult, a Class
    IIIA felony, and tampering with physical evidence, a Class
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    IV felony. A trial to the bench was held where the aforemen-
    tioned evidence was presented. Following the bench trial,
    the district court found Boyd guilty of abuse of a vulnerable
    adult and found her not guilty of tampering with physical evi-
    dence. Following the preparation of a presentence investigation
    report, the district court stated that it had considered the fac-
    tors set forth in State v. Thurman, 
    273 Neb. 518
    , 
    730 N.W.2d 805
    (2007), and sentenced Boyd to 6 months’ probation and
    ordered her to pay a $5,000 fine. The court noted at the sen-
    tencing hearing that he considered “the five days that [Boyd
    had] already served as sufficient.”
    III. ASSIGNMENTS OF ERROR
    The State contends that the district court abused its discre-
    tion in imposing an excessively lenient sentence. Boyd cross-
    appealed, contending that the evidence was insufficient to sup-
    port the verdict.
    IV. STANDARD OF REVIEW
    [1] An appellate court will sustain a conviction in a bench
    trial of a criminal case if the properly admitted evidence,
    viewed and construed most favorably to the State, is suffi-
    cient to support that conviction. State v. Montoya, 
    304 Neb. 96
    , 
    933 N.W.2d 558
    (2019). In making this determination,
    an appellate court does not resolve conflicts in the evidence,
    pass on the credibility of witnesses, evaluate explanations, or
    reweigh the evidence presented, which are within a fact find-
    er’s province for disposition.
    Id. Instead, the relevant
    question
    is whether, after viewing the evidence in the light most favor-
    able to the prosecution, any rational trier of fact could have
    found the essential elements of the crime beyond a reasonable
    doubt.
    Id. [2]
    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
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    of the trial court’s discretion. State v. Gibson, 
    302 Neb. 833
    ,
    
    925 N.W.2d 678
    (2019).
    V. ANALYSIS
    1. Boyd’s Appeal
    We first address Boyd’s assignment of error in connection
    with her cross-appeal. Boyd assigns and argues that there was
    insufficient evidence to support a finding that she knowingly
    and intentionally neglected a vulnerable adult in violation of
    Neb. Rev. Stat. § 28-386 (Reissue 2016). Specifically, as it
    relates to the elements of that offense, Boyd argues that there
    was insufficient evidence to find that (a) Pistillo was a “‘vul-
    nerable adult,’” (b) Boyd was a “‘caregiver,’” and (c) Boyd
    committed an “‘act’” which caused or permitted Pistillo to be
    neglected as required under § 28-386(1)(f). We will discuss
    these arguments independently.
    (a) Vulnerable Adult
    Boyd was specifically charged with a violation of
    § 28-386(1)(f). That statute provides that “[a] person commits
    knowing and intentional abuse, neglect, or exploitation of a
    vulnerable adult or senior adult if he or she through a know-
    ing and intentional act causes or permits a vulnerable adult
    or senior adult to be: . . . (f) [n]eglected[.]” § 28-386(1). The
    State’s amended information alleged that, between June 10
    and 15, 2017, Boyd did “knowingly and intentionally commit
    [an] act, which caused or permitted . . . PISTILLO, a vulner-
    able adult, to be neglected, in violation of Neb. Rev. Stat.
    §28-386[,] a Class IIIA Felony.” Boyd first argues that there
    was insufficient evidence in the record to support a finding that
    Pistillo was a “vulnerable adult.”
    Neb. Rev. Stat. § 28-371 (Reissue 2016) defines “[v]ulner-
    able adult” as “any person eighteen years of age or older
    who has a substantial mental or functional impairment or for
    whom a guardian or conservator has been appointed under the
    Nebraska Probate Code.” Because no guardian or ­conservator
    had been appointed for Pistillo, Boyd argues that the State
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    was required to show that Pistillo suffered from a “substantial
    mental or functional impairment” in order to qualify as a vul-
    nerable adult and simply failed to do so at the time of trial. In
    support of this contention, Boyd argues:
    There was no evidence presented by any expert or lay wit-
    ness that [Boyd’s] mother was suffering from a substantial
    mental or functional impairment during the time [Boyd]
    was staying at her residence. On the contrary, the record
    is full of paramedic and medical opinions describing
    [Boyd’s] mother as “answering questions appropriately”,
    “no possible injury”, “normal baseline for patient with
    respect to neurological state”, “alert”, “oriented”, “well
    nourished”, and capable of “declining a feeding tube.”
    Brief for appellee on cross-appeal at 9-10.
    [3] Neb. Rev. Stat. § 28-368 (Reissue 2016) defines
    “[s]ubstantial functional impairment” as “a substantial incapa-
    bility, because of physical limitations, of living independently
    or providing self-care as determined through observation, diag-
    nosis, investigation, or evaluation.” 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 witnesses,
    or reweigh the evidence; such matters are for the finder of
    fact. State v. Garcia, 
    302 Neb. 406
    , 
    923 N.W.2d 725
    (2019).
    The relevant question for an appellate court is whether, after
    reviewing 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.
    Id. Here, Boyd herself
    acknowledged that her 89-year-old
    mother had been on the floor for days, would not get up,
    and had not eaten before Boyd requested medical assistance.
    When medical assistance arrived, the attendants documented
    that Pistillo’s skin had adhered to the carpet and that she was
    wearing soiled adult “Depends” undergarments. The paramed-
    ics attending to Pistillo decided to transport her to the hospital
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    because she would not get up by herself and appeared unable
    to care for herself. Taken together, this testimony provided
    sufficient evidence of “observation[s]” that Pistillo was suf-
    fering from “a substantial incapability, because of physical
    limitations, of living independently or providing self-care.”
    As such, the district court did not err in finding that Pistillo
    was a “vulnerable adult” as that term is defined by Nebraska
    statute. See § 28-368. That portion of Boyd’s assignment of
    error fails.
    (b) Boyd Was Not Caregiver
    Boyd next argues that in order to find neglect, the fact
    finder must first determine that Boyd was Pistillo’s caregiver
    and that there was insufficient evidence in the record to support
    that finding.
    As we previously stated, the State specifically charged
    Boyd with knowingly and intentionally causing a vulnerable
    adult to be neglected. “Neglect” is defined in Neb. Rev. Stat.
    § 28-361.01 (Reissue 2016), which provides:
    Neglect means any knowing or intentional act or omis-
    sion on the part of a caregiver to provide essential services
    or the failure of a vulnerable adult, due to physical or
    mental impairments, to perform self-care or obtain essen-
    tial services to such an extent that there is actual physical
    injury to a vulnerable adult or imminent danger of the
    vulnerable adult suffering physical injury or death.
    The term “caregiver” is separately defined in Neb. Rev. Stat.
    § 28-353 (Reissue 2016), which provides: “Caregiver shall mean
    any person or entity which has assumed the responsibility for
    the care of a vulnerable adult voluntarily, by express or implied
    contract, or by order of a court of competent jurisdiction.”
    [4-7] Boyd argues that in order to be convicted of neglect
    of a vulnerable adult, she must be a caregiver to Pistillo,
    and she argues that the above-stated definition of caregiver
    requires that such person or entity must assume that role by
    either express or implied contract or by order of a court of
    competent jurisdiction. Stated differently, Boyd argues there
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    is no third category of a caregiver, that being one who volun-
    tarily assumes the role of caregiver without a contract or court
    order. In furtherance of that interpretation, Boyd argues that
    the placement of the word “voluntarily” in § 28-353 suggests
    an intent by the Legislature to modify the terms “express or
    implied contract” and “order of a court of competent jurisdic-
    tion,” and not to create a third category of caregiver—one
    who voluntarily agrees to serve in that role without an agree-
    ment and without a court order. We disagree with the pro-
    posed interpretation.
    [W]hen analyzing the text of a criminal statute, we follow
    settled principles of statutory construction. Penal statutes
    are considered in the context of the object sought to be
    accomplished, the evils and mischiefs sought to be rem-
    edied, and the purpose sought to be served. Effect must be
    given, if possible, to all parts of a penal statute; no sen-
    tence, clause, or word should be rejected as meaningless
    or superfluous if it can be avoided. And in the absence of
    anything indicating otherwise, statutory language is to be
    given its plain and ordinary meaning.
    State v. Ferrin, 
    305 Neb. 762
    , 772, 
    942 N.W.2d 404
    , 412 (2020).
    In crafting the language of § 28-353, the Legislature stated
    that a “[c]aregiver shall mean any person or entity which has
    assumed the responsibility for the care of a vulnerable adult
    voluntarily, by express or implied contract, or by order of a
    court of competent jurisdiction.” By stating that a “caregiver”
    is a person or entity who assumes responsibility for the care
    of a vulnerable adult, followed by providing an exclusive list
    of methods that, in the alternative, establish the assumption
    of that responsibility, all of which methods are separated by
    commas, the Legislature utilized a customary form of statu-
    tory construction.
    [8,9] The Nebraska Supreme Court has referred to the con-
    struction, when crafted in this manner, as “[t]he legal principle
    of expressio unius est exclusio alterius.” Jacobson v. Shresta,
    
    288 Neb. 615
    , 623, 
    849 N.W.2d 515
    , 521 (2014). “The legal
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    principle of expressio unius est exclusio alterius (the expres-
    sion of one thing is the exclusion of the others) recognizes the
    general principle of statutory construction that an expressed
    object of a statute’s operation excludes the statute’s operation
    on all other objects unmentioned by the statute.”
    Id. Thus, when the
    language is styled in this manner, it appears as an expres-
    sion by the Legislature that assuming the responsibility of care
    can be accomplished in three exclusive ways—voluntarily, by
    express or implied contract, or by court order. Further, inter-
    preting the word “voluntarily” in § 28-353 as an expression of
    a separate form of assumption of responsibility, rather than a
    word modifying the phrases “by express or implied contract”
    or “by order of a court of competent jurisdiction,” provides
    a more reasonable interpretation of that sentence. If we were
    to read the word “voluntarily” as modifying the phrase “by
    express or implied contract,” we would be suggesting that
    a voluntary contract is different than an ordinary express or
    implied contract.
    Id. To the contrary,
    in Moglia v. McNeil Co.,
    
    270 Neb. 241
    , 251, 
    700 N.W.2d 608
    , 618 (2005), the Nebraska
    Supreme Court cited William L. Prosser, Handbook of the Law
    of Torts § 92 (4th ed. 1971), for the following proposition:
    “‘Contract actions are created to protect the interest in having
    promises performed. Contract obligations are imposed because
    of conduct of the parties manifesting consent, and are owed
    only to the specific individuals named in the contract.’” As
    such, a contract, by definition, already incorporates the notion
    of voluntary consent to a promise and to suggest we read the
    word “voluntarily” as modifying the phrase “by express of
    implied contract” would render that term unnecessary or super-
    fluous to § 28-353. As we previously stated, “Effect must be
    given, if possible, to all parts of a penal statute; no sentence,
    clause, or word should be rejected as meaningless or superflu-
    ous if it can be avoided.” State v. 
    Ferrin, 305 Neb. at 772
    , 942
    N.W.2d at 412.
    Accordingly, contrary to Boyd’s argument, § 28-353 does
    not limit family caregiver status to an order of court or
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    express or implied contract. The statute also includes refer-
    ence to any person who has assumed responsibility for the
    care of a vulnerable adult voluntarily. Here, the record indi-
    cates that Boyd moved into Pistillo’s house to help care for
    her and to give her sister a break, because her sister was the
    person who normally took care of Pistillo. The record then
    indicated certain acts of care by Boyd in connection with
    Pistillo prior to her eventually calling for medical assistance
    for Pistillo. Again, an appellate court will sustain a conviction
    in a bench trial of a criminal case if the properly admitted
    evidence, viewed and construed most favorably to the State,
    is sufficient to support that conviction. State v. Montoya, 
    304 Neb. 96
    , 
    933 N.W.2d 558
    (2019). In making this determina-
    tion, an appellate court does not resolve conflicts in the evi-
    dence, pass on the credibility of witnesses, evaluate explana-
    tions, or reweigh the evidence presented, which are within a
    fact finder’s province for disposition.
    Id. Instead, the relevant
    question 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.
    Id. Here, there was
    sufficient evidence to support that Boyd
    voluntarily assumed responsibility for the care of her mother,
    a vulnerable adult. As such, that portion of Boyd’s assignment
    of error, that there was insufficient evidence in the record to
    satisfy that Boyd was a caregiver, fails.
    (c) Act by Boyd
    Boyd finally argues that in order to be guilty of the crime of
    knowing and intentional neglect of a vulnerable adult, she must
    have committed a knowing and intentional act which caused or
    permitted the vulnerable adult to be neglected. Here, she argues
    that the record is devoid of any such act and that the district
    court erred in finding she committed one. In support of this
    contention, Boyd argues:
    The Nebraska Criminal Code defines “act” as “a bodily
    movement, [including] words and possession of property.”
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    Neb. Rev. Stat. § 28-109(1) (Reissue 2016). By using the
    term “act” as opposed to “conduct” or “failure to act,” the
    [L]egislature intended to limit criminal liability under this
    count for only those defendants who commit a knowing
    and intentional “bodily movement.” This is consistent
    with legislative intent to respect the civil rights of the
    elderly adult, as discussed above.
    Brief for appellee on cross-appeal at 16-17 (emphasis in
    original).
    Alternatively, Boyd argues that § 28-386 is ambiguous in
    stating: “Further, to the extent that ‘act,’ as stated in the statute
    under which [Boyd] was charged, conflicts with the concept
    of neglect (which is an act or omission), the specific subsec-
    tion [Boyd] is alleged to have violated, an ambiguity is created
    which requires resolution in [Boyd’s] favor.” Brief for appellee
    on cross-appeal at 17.
    Section 28-386(1), as charged by the State, requires a “know-
    ing and intentional abuse, neglect, or exploitation of a vulner-
    able adult or senior adult if he or she through a knowing and
    intentional act causes or permits a vulnerable adult or senior
    adult to be: . . . (f) [n]eglected.” And as we previously stated,
    § 28-361.01 provides:
    Neglect means any knowing or intentional act or omis-
    sion on the part of a caregiver to provide essential services
    or the failure of a vulnerable adult, due to physical or
    mental impairments, to perform self-care or obtain essen-
    tial services to such an extent that there is actual physical
    injury to a vulnerable adult or imminent danger of the
    vulnerable adult suffering physical injury or death.
    Boyd attempts to argue that this statutory construction cre-
    ates an ambiguity, because § 28-386 requires a physical act or
    words, while neglect can include an action or omission, and
    that this conflict in definition requires that we resolve this mat-
    ter in favor of Boyd.
    [10] Contrary to Boyd’s assertions, the statutory language of
    Neb. Rev. Stat. § 28-109 (Reissue 2016) provides, in pertinent
    part: “For purposes of the Nebraska Criminal Code, unless the
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    context otherwise requires: (1) Act shall mean a bodily move-
    ment, and includes words and possession of property.” The
    Nebraska Supreme Court recently had occasion to review the
    meaning of the phrase “unless the context otherwise requires”
    in Heiden v. Norris, 
    300 Neb. 171
    , 
    912 N.W.2d 758
    (2018).
    Although the court was specifically reviewing the phrase in
    connection with Neb. Rev. Stat. § 43-1801 (Reissue 2016), the
    court’s explanation of the phrase has parallel application here.
    In Heiden, the Nebraska Supreme Court held:
    A review of our case law suggests that the “context”
    referred to in § 43-1801 is not the factual circumstances
    presented by a case, but the context of the statutory lan-
    guage itself. In Pig Pro Nonstock Co-op v. Moore, [
    253 Neb. 72
    , 
    568 N.W.2d 217
    (1997),] we examined, but ulti-
    mately rejected, cases from other jurisdictions that went
    beyond the context of the statute to the facts in order to
    determine whether a cooperative was designated “non-
    profit” for purposes of a statutory scheme. As another
    court has since explained: “The term ‘context’ in the stat-
    utory phrase ‘unless the context otherwise requires’ means
    the context ‘within which [a defined statutory term] is
    used within the statute’s substantive provisions.’”
    300 Neb. at 
    177, 912 N.W.2d at 763
    .
    [11] Applying that construction here, § 28-386, as charged
    by the State, required a knowing and intentional act which
    caused or permitted a vulnerable adult to be neglected. Neglect
    is then defined as an act or omission on the part of the care-
    giver. Whereas the term “act” is generally defined in relation
    to the entire criminal code and generally relates to a physical
    act, its meaning is modified by the phrase “unless the context
    otherwise requires.” Here, the more specific statute governing
    the term “neglect” in relation to an act expands the meaning
    of act to include an act or omission. It is a general principle
    of statutory construction that to the extent there is a conflict
    between two statutes, the specific statute controls over the
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    general statute. State v. Kennedy, 
    299 Neb. 362
    , 
    908 N.W.2d 69
    (2018).
    Here, by allowing Pistillo to remain in her condition without
    seeking assistance for the protracted period of time as demon-
    strated by this record, there was sufficient evidence to support
    the court’s finding of a knowing and intentional omission on
    the part of Boyd, the caregiver, to provide essential services to
    Pistillo, a vulnerable adult. Accordingly, Boyd’s claim that the
    record does not contain sufficient evidence to support a know-
    ing and intentional “act” by her fails.
    2. State’s Appeal
    Having determined that Boyd’s claim of insufficiency of
    the evidence to support her conviction fails, we now address
    the State’s claim that the district court abused its discretion in
    imposing an excessively lenient sentence.
    [12-14] As the Nebraska Supreme Court recently stated in
    State v. Gibson, 
    302 Neb. 833
    , 839-40, 
    925 N.W.2d 678
    , 683-
    84 (2019):
    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. 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.
    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. 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 justice or conscience, reason,
    and evidence.
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    In reviewing whether a sentencing court abused its
    discretion 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 statu-
    tory guidelines set out for the direction of the ­sentencing
    judge in imposing or withholding imprisonment.
    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 pro-
    mote 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.”
    [15-19] Boyd was convicted of a Class IIIA felony, which
    is punishable by 0 to 3 years’ imprisonment followed by 9 to
    18 months’ postrelease supervision if imprisonment is imposed
    and/or a $10,000 fine. See, Neb. Rev. Stat. § 28-105 (Reissue
    2016); § 28-386. Class IIIA felonies have no mandatory mini-
    mum. See § 28-105. As noted by the court in Gibson:
    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 imprison-
    ment is not specifically required, the court may withhold
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    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 imprisonment of the offender is necessary for protec-
    tion 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;
    “(e) The victim of the crime induced or facilitated
    commission 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;
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    “(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.” 302 Neb. at 841-42
    , 925 N.W.2d at 684-85. The Supreme Court
    further stated:
    While certain guidelines are set forth by statute, nei-
    ther 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. The sentencing
    court is not limited in its discretion to any mathematically
    applied set of factors. The appropriateness of a sentence
    is necessarily a subjective judgment and includes the sen-
    tencing judge’s observation of the defendant’s demeanor
    and attitude and all the facts and circumstances surround-
    ing the defendant’s life. 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.
    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. The standard is not what sentence
    we would have imposed. If it were, we might reach a dif-
    ferent result.
    State v. Gibson, 
    302 Neb. 833
    , 843, 
    925 N.W.2d 678
    , 685
    (2019).
    Here, at the time that the presentence investigation report
    was prepared, Boyd was 64 years old, widowed, and retired.
    Boyd does not have any criminal convictions, and the level
    of service/case management inventory assessed her as a low
    risk to reoffend. She had recently sold her home on the east
    coast and was relocating to the west coast, when she stopped
    in Omaha to visit her sister and mother. Boyd had been staying
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    in her mother’s home for approximately 1 month. The week
    prior to Boyd’s calling 911 to assist her mother, her mother
    had fallen and remained in that position. Boyd provided her
    mother with juice and adult “Depends” undergarments. Further,
    according to Boyd, her mother had instructed her not to call
    her doctor or 911.
    Although the facts in this case are very concerning, Boyd
    has no criminal history and has led a law-abiding life prior
    to the commission of this instant offense; the offense was the
    result of circumstances unlikely to recur; Boyd’s character and
    attitudes indicate that she is unlikely to commit another crime;
    and she is likely to respond affirmatively to probationary treat-
    ment. Further, imprisonment in this case is not necessary to
    afford adequate deterrence to criminal conduct or to protect the
    public from further crimes by Boyd. As the Nebraska Supreme
    Court aptly stated in Gibson:
    The sentence imposed by the district court was lenient,
    but we cannot conclude that the court abused its discre-
    tion by issuing a sentence that was excessively lenient. In
    light of all the relevant sentencing considerations, the sen-
    tence was not untenable, unreasonable, or clearly against
    justice or conscience, reason, and evidence.
    302 Neb. at 
    846, 925 N.W.2d at 687
    .
    VI. CONCLUSION
    In sum, we reject both Boyd’s claim that the evidence was
    insufficient to support her conviction and the State’s claim that
    the sentence imposed was excessively lenient. Accordingly, we
    affirm Boyd’s conviction and sentence.
    Affirmed.