State v. Newman

257 N.W.2d 825, 199 Neb. 246, 1977 Neb. LEXIS 780

• Court: Nebraska Supreme Court
• Decided: October 5, 1977
• Docket: No. 41318
• Status: Published

Opinion

Clinton, J.

The defendant was charged, under the provisions of section 28-408.03, R. R. S. 1943, with first degree sexual assault and entered a plea of no contest. The trial judge sentenced him to a term of not less than 5 nor more than 9 years in the Nebraska Penal and Correctional Complex. On this appeal he asserts that the sentence is excessive and asks that the above minimum be substantially reduced. We affirm.

The defendant is 17 years of age. The crime in question was accomplished by breaking and entering during the nighttime the home in which the victim, a married woman with an infant child, was sleeping. The woman is a deaf mute. The woman’s husband was absent from the home at the time of the attack. The victim offered minimal resistance because of fear and fear for her child. The act of rape was accomplished twice by the defendant.

The defendant has a previous history of sexual assaults. As a juvenile of the age of 15 he committed his first rape and was treated at the Lincoln Regional Center for about 1 year. An earlier attempted rape had not been prosecuted and had been dealt with by a lecture. He admits three other assaults with intent to rape which failed.

The trial court analyzed the statutory conditions tending to indicate a sentence of probation, concluded that they did not apply in this case, and imposed the sentence here questioned. The record discloses no mental or other abnormalities which explain the defendant’s conduct. The trial court concluded he was a danger to females and that incarceration was required.

The trial court did not abuse its discretion in imposing the sentence it did and in the absence of such abuse the sentence is affirmed. See State v. Martinez, 198 Neb. 347, 252 N. W. 2d 630.

Affirmed.