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03/03/2023 09:05 AM CST
- 685 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
State of Nebraska, appellee,
v. Perry F. Hines, appellant.
___ N.W.2d ___
Filed March 3, 2023. No. S-22-288.
1. Jury Instructions: Entrapment: Appeal and Error. Whether jury
instructions given by a trial court are correct, including whether an
entrapment instruction should have been given, is a question of law
reviewed de novo.
2. Sentences: Appeal and Error. An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion
by the trial court.
3. Criminal Law: Entrapment: Words and Phrases. In Nebraska,
entrapment is an affirmative defense consisting of two elements: (1)
the government induced the defendant to commit the offense charged
and (2) the defendant’s predisposition to commit the criminal act was
such that the defendant was not otherwise ready and willing to commit
the offense.
4. Sentences: Appeal and Error. Where a sentence imposed within the
statutory limits is alleged on appeal to be excessive, the appellate court
must determine whether a sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal
principles in determining the sentence to be imposed.
5. Sentences. When imposing a sentence, the sentencing court is to consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense, and (8) the amount of violence
involved in the commission of the crime.
Appeal from the District Court for Hall County: Patrick M.
Lee, Judge. Affirmed.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
Gerard A. Piccolo, Hall County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Matthew Lewis
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Over the course of several weeks, Perry F. Hines communicated over Facebook with an individual claiming to be a teenage girl. Hines turned the conversations to sexual matters and
sent a picture of his penis. Eventually, he arranged a meeting at
a local park. But the person with whom Hines was corresponding was actually a law enforcement officer, and when Hines
arrived at the park, he was arrested.
A jury later convicted Hines of use of an electronic communication device to commit sexual assault, in violation of
Neb. Rev. Stat. § 28-320.02 (Reissue 2016), and enticement
by an electronic communication device, in violation of
Neb.
Rev. Stat. § 28-833(1)(a) (Reissue 2016). The district court
sentenced him to a term of 15 to 30 years’ imprisonment on
the first conviction and 23 to 24 months’ imprisonment on the
second. On appeal, Hines argues that the district court erred by
failing to instruct the jury on the affirmative defense of entrapment and by imposing excessive sentences. We find no error
and affirm.
BACKGROUND
“Lily Williamson.”
At trial, the State’s primary witness was Cayla Larkins,
an officer with the Grand Island Police Department. Larkins
testified that her duties included investigating “cyber crimes”
against children and that, as part of those duties, she created and maintained various undercover profiles on social
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
media websites. Larkins created such a profile on Facebook
for what appeared to be a teenage girl with the name “Lily
Williamson.”
In January 2021, Hines, who was 61 years old at the time,
requested to be friends with the Lily Williamson profile and
began sending chat messages to it. Larkins thereafter communicated with Hines for several weeks, at all times posing
as Lily Williamson. Because these chat conversations were the
primary evidence upon which the State relied at trial, we recite
pertinent portions below. We do so without correcting or noting incorrect spelling, punctuation, or grammar. All references
to messages sent by “Lily” refer to messages sent by Larkins
posing as Lily Williamson.
Facebook Chats.
Hines initiated the first communication with Lily on January
21, 2021. Shortly after the conversation began and pleasantries were exchanged, Hines stated that Lily was a “cutie.” He
later asked for her age, and Lily responded that she “turned 16
last month.” Hines responded that he “didn’t realize your still
young” and that “when your trying to meet a lady in line you
have to be careful right?” The two later exchanged pictures of
themselves at Hines’ request and continued to send messages
to each other for a few days. In one of those messages, Hines
said, “I sure wish I could talk to in person.”
In February 2021, Hines again initiated contact with Lily.
During a conversation that spanned several days, Hines sent
a message that he “wanted to see” Lily “because I wanted to
make love to you.” At that point, Lily asked if she could be
honest with Hines. After Hines agreed, Lily stated that she
“actually just turned 14.” Hines then apologized, but shortly
thereafter asked, “would you have made love to me?” When
Lily asked what Hines would “wanna do if we met in person,”
Hines responded, “I really don’t know there are a lot of moral
issues involved here probably just talk. Have you done this
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
before.” Lily replied that she had not. Hines then asked Lily
whether she was a virgin, and Lily responded that she was.
Several days later, Hines again asked to see Lily, tried to
talk to her via a Facebook audio call, and asked for another
picture of her. The parties again exchanged pictures. The next
day, Hines asked Lily why she wanted to see him. She replied,
“You’re interested in me lol. I like talking to you. What made
you want to see me?” Hines responded, “Well I think your a
good person a little to trusting but good heart and your cute.”
Later in the conversation, Hines sent a message stating, “Boo
you know I could go to prison for a long long time for see
you right?”
On March 2, 2021, Hines again asked about meeting in person and told Lily to let him know when she could leave her
house. Two days later, Hines again expressed a desire to see
Lily and again turned the conversation toward sexual topics,
telling Lily, “I don’t think it’s my blessing to take your vaginity.” He later asked, “why do you feel im worthy to have a gift
like that?” Lily responded, “why wouldnt u think ur worthy??
i wouldnt be talkin to u if u werent.” In the same conversation,
Hines stated, “why don’t we try to see one another and go from
there k,” to which Lily responded, “ok.” He also asked if Lily
was “curious about sex.”
The next day, the parties again exchanged messages and
Hines told Lily that he is “nice” to her “Because your so nice
to me you are willing to give me a gift that can only be given
once.” He also stated that “the outside world would look at me
as a cradle robber.” Hines later suggested that they exchange
“private” pictures. When Lily asked for clarification, Hines
responded, “Down below no faces.” Before Lily responded,
Hines sent her a picture of his penis. He later said, “Boo I
apologize if you think less of me go ahead and erase it if you
want k.” Lily responded, “Oh wow!! Lol. I don’t think less
of you.” When asked if she was going to send a picture, Lily
replied that she was currently with her parents, but might send
one later.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
On March 9, 2021, Hines and Lily again exchanged messages. During the exchange, Hines stated that “im still waiting on the selfie.” When Lily expressed reluctance because a
friend “got in big trouble for sending a nude,” Hines asked,
“What about panties and bra and one you can feel comfortable about?” Lily responded that “i dont want u to get in any
trouble since im 14 ya know.” Hines then again inquired about
meeting. This time, Lily agreed to meet Hines at a local park,
saying “when I see u pull up ill get in with u.” Hines drove to
the park, and law enforcement arrested him there.
At various times in the chat conversations, Lily complained
to Hines about her parents, their drinking, her inability to get
a job, and boys her age. Larkins testified that when she creates
and maintains undercover social media profiles, she refers to
such specific details as part of an effort to make the profile
“appear as though they are a real person.”
Hines’ Testimony.
Hines testified at trial in his own defense. He admitted to
corresponding with the Lily Williamson account on Facebook.
He claimed that, during the conversations, he thought he might
be communicating with a scam artist or a prior girlfriend who
was attempting to play a prank on him but that he continued
the conversations because he wanted to discover the identity
of the person with whom he was communicating. Hines also
testified, however, that he did not foreclose the possibility that
Lily was who she claimed to be. In that respect, he testified
that he felt sorry for Lily and wanted to help her. Hines admitted to sending the picture of his penis, but acknowledged it
was “stupid.”
Hines also admitted to arranging the meeting at the park on
March 9, 2021. According to Hines, the purpose of the meeting
was to “[s]ee who I was talking to.” He denied that he went
to the park intending to have sex with Lily. He claimed that if
Lily had been at the park, he would have told her, “[Y]ou need
to quit this because this is dangerous.”
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
Verdicts and Sentencing.
At the close of the evidence at trial, the district court
denied Hines’ request to instruct the jury on the affirmative
defense of entrapment. Without an entrapment instruction,
Hines’ counsel argued in closing argument that the State failed
to show that Hines had the necessary intent to commit the
charged offenses.
The jury convicted Hines of use of an electronic communication device to commit sexual assault and enticement by an
electronic communication device. The district court sentenced
him to 15 to 30 years’ imprisonment on the first conviction and
23 to 24 months’ imprisonment on the second conviction, with
the sentences to run consecutively.
ASSIGNMENTS OF ERROR
Hines assigns that the district court erred (1) by failing to
give his requested jury instruction on entrapment and (2) by
imposing excessive sentences.
STANDARD OF REVIEW
[1] Whether jury instructions given by a trial court are correct, including whether an entrapment instruction should have
been given, is a question of law reviewed de novo. See State v.
Green, 287 Neb. 212,
842 N.W.2d 74 (2014).
[2] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by
the trial court. State v. Archie,
305 Neb. 835,
943 N.W.2d
252 (2020).
ANALYSIS
Entrapment Instruction.
[3] We first address Hines’ argument that the district
court erred by refusing to instruct the jury on entrapment.
In Nebraska, entrapment is an affirmative defense consisting
of two elements: (1) the government induced the defend
ant to commit the offense charged and (2) the defendant’s
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
predisposition to commit the criminal act was such that the
defendant was not otherwise ready and willing to commit
the offense. State v. Pischel,
277 Neb. 412,
762 N.W.2d 595
(2009). When a defendant raises the defense of entrapment,
the trial court must determine, as a matter of law, whether the
defendant has presented sufficient evidence to warrant a jury
instruction on entrapment.
Id. A defendant satisfies this initial
burden, and is entitled to a jury instruction on entrapment, if he
can point to more than a scintilla of evidence that the government induced him to commit the offense. See
id. If the defend
ant meets this initial burden, then the State bears the burden of
proving beyond a reasonable doubt that the defendant was not
entrapped. See State v. Heitman,
262 Neb. 185,
629 N.W.2d
542 (2001).
Hines argues that he presented sufficient evidence of inducement to submit the entrapment defense to the jury. This court
has said that inducement can be any government conduct creating a substantial risk that an otherwise law-abiding citizen
would commit an offense. See
Pischel, supra. Inducement
requires something more, however, than that a government
agent or informant suggested the crime and provided the occasion for it.
Id. Inducement consists of an opportunity plus
something else, such as excessive pressure by the government
upon the defendant or the government’s taking advantage of
an alternative, noncriminal type of motive.
Id. We have recognized that inducement could occur through persuasion, fraudulent representation, threats, coercive tactics, harassment, promise of reward, or pleas based on need, sympathy, or friendship.
See
id.
Hines makes no argument in this case that he was entitled
to an entrapment instruction merely because Larkins created
a fictitious profile and then interacted with Hines under the
guise of that fictitious persona. Any such argument would
go nowhere. Many years ago, this court recognized that law
enforcement is not precluded from using “artifice and stratagem, such as the use of decoys or undercover agents” in the
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
investigation of crimes. State v. Lampone,
205 Neb. 325, 328,
287 N.W.2d 442, 444 (1980). As another court has observed,
if the law enforcement’s use of deception alone constituted
entrapment, it would be difficult or impossible “to stop certain seriously criminal activity, particularly activity involving
drugs, or corruption, or other crimes in which no direct participant wants the crime detected.” U.S. v. Gendron,
18 F.3d 955,
961 (1st Cir. 1994) (Breyer C.J.).
While Hines does not argue that there was evidence of
entrapment solely because Larkins posed as a teenage girl, he
does argue that some of Larkins’ statements, while posing as
Lily, were sufficient evidence of inducement such that the jury
should have received an entrapment instruction. Drawing on
the list of actions that we have said may constitute inducement,
Hines contends there was more than a scintilla of evidence that
Larkins engaged in persuasion, played upon his sympathy, and
took advantage of his alternative, noncriminal motives. We
address each of these arguments in turn.
Hines first argues there was sufficient evidence that Larkins,
while posing as Lily, engaged in persuasion. He identifies two
portions of the chat conversations in which he claims persuasion occurred. The first was when Lily responded to his question about why she felt he was worthy to take her virginity
by stating that she would not be talking to Hines if she did
not think he was worthy. The second was when Lily said that
she did not think less of Hines after he sent the picture of
his penis.
We disagree that these statements constitute evidence of
persuasion. In neither of the statements identified by Hines did
Larkins, while posing as Lily, request, encourage, or attempt
to convince Hines to engage in criminal activity. At the very
most, these statements signaled that Lily was willing to have
conversations of a sexual nature on Facebook and perhaps
open to engaging in sexual activity with Hines. Expression
of such willingness, however, at most afforded an opportunity for criminal activity, which we have consistently said
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
does not constitute entrapment. See, e.g., State v. Graham,
259
Neb. 966,
614 N.W.2d 266 (2000).
Our conclusion that Hines has not identified evidence of
inducement based on persuasion is consistent with prior decisions of this court. In State v. Swenson,
217 Neb. 820,
352
N.W.2d 149 (1984), we held that a defendant who testified
that he was approached by a government informant and asked
if he could obtain marijuana was not entitled to an entrapment
instruction. We explained that “[i]nquiry alone . . . does not
supply the degree of persuasion necessary for entrapment.”
Id.
at 825,
352 N.W.2d at 154. Similarly, in State v. Pischel,
277
Neb. 412,
762 N.W.2d 595 (2009), we held that a defendant
was not entitled to an entrapment instruction in a prosecution
for child enticement based on a series of online chats with a
decoy that led to the arrangement of an in-person meeting. In
that case, the defendant contended that he was entitled to the
entrapment instruction based on evidence that when he said
he could not meet on a particular day, the decoy expressed
disappointment and anger. We rejected the argument that these
expressions constituted inducement and noted that it was the
defendant that initiated the plans for the later meeting at which
he was arrested.
In this case, the statements Hines identifies as persuasion
do not even amount to an inquiry regarding criminal activity,
which we held in
Swenson, supra, was insufficient to constitute
inducement. In addition, the statements Hines relies upon are
similar to the statements described above in
Pischel, supra, in
that both might be understood as a decoy’s expression of willingness to engage in criminal activity. In Pischel, however, we
rejected the argument that such statements alone constituted
evidence of inducement.
This case is also unlike State v. Heitman,
262 Neb. 185,
629 N.W.2d 542 (2001), a case Hines relies upon, in which we
found inducement. In that case, we found inducement based
on evidence that a law enforcement officer, posing as a minor,
among other things, encouraged the defendant to describe
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
how he would engage in sexual activity with her, was the first
to suggest an in-person meeting at a motel, and then created
a sense of urgency for the meeting to occur by saying that
the minor would soon be going out of town. This, we said,
“went beyond merely providing an opportunity to commit the
crime.” Id. at 201,
629 N.W.2d at 555. In this case, however,
there was no evidence of similar encouragement. Instead, the
evidence shows that it was Hines who first initiated contact
with Lily, first brought up sexual matters, first suggested
exchanging intimate pictures, and first suggested an in-person
meeting. As with the defendant in Pischel, the “State merely
created the opportunity” for Hines to communicate with a
person purporting to be a 14-year-old girl “and to take such
communication in a sexual direction.”
277 Neb. at 426,
762
N.W.2d at 606.
Hines fares no better with his argument that entrapment
should have been submitted to the jury because there was evidence that Larkins impermissibly appealed to Hines’ sympathy.
Here, Hines argues that when Larkins conveyed complaints
regarding Lily’s parents, their drinking, her inability to get a
job, and boys her age, she was attempting to make Hines sympathetic to Lily. This, he argues, is evidence of inducement.
We disagree.
In our prior cases, we have said that pleas based on sympathy may constitute inducement. One noteworthy example
of this type of inducement can be found in Sherman v. United
States,
356 U.S. 369,
78 S. Ct. 819,
2 L. Ed. 2d 848 (1958). In
that case, a government informant met the defendant at a doctor’s office where both were apparently being treated for narcotics addiction. The informant and the defendant then formed
a relationship, discussing their mutual experiences. Later,
however, the informant told the defendant that the inform
ant was not responding to treatment and asked the defendant
to supply him with narcotics. After multiple requests “predicated on [the informant’s] presumed suffering,” the defendant
obtained narcotics for the informant.
Id.,356 U.S. at 371.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
Relying on the fact that the informant “resort[ed] to sympathy” when asking the defendant to purchase narcotics for him,
the U.S. Supreme Court found that this evidence established
inducement as a matter of law.
Id.,356 U.S. at 373.
In stark contrast to a case like Sherman, there is no evidence in this case that a law enforcement agent made a plea to
Hines’ sympathy as part of a request that Hines break the law.
Although Hines claims that Lily’s purported difficulties made
him feel sorry for her, there was no evidence that law enforcement relied on any such feelings as part of an effort to have
Hines commit the offenses of which he was convicted. Hines
cannot show that there was any evidence of the kind of plea
based on sympathy that would constitute inducement.
Hines’ final argument that there was sufficient evidence
of inducement to warrant an entrapment instruction suffers
from similar problems. As noted, Hines contends that there
was more than a scintilla of evidence that law enforcement
took advantage of his alternative, noncriminal motives. Hines
claims he offered evidence of two noncriminal motives for his
online communications and arrangement of a meeting at the
park: that he wanted to determine if a scam artist or former
girlfriend was behind the Lily Williamson account and that, if
Lily was actually who she claimed to be, he wanted to discourage her from engaging in the type of online conversations she
had with him.
As described above, Hines did testify that his communication and arrangement of a meeting with Lily were motivated by
a desire to discover Lily’s identity or, alternatively, to warn or
help her. But the fact that Hines adduced some evidence that
he acted with a noncriminal motive did not entitle him to an
entrapment instruction. Inducement can result if the government takes advantage of a noncriminal motive. See State v.
Pischel,
277 Neb. 412,
762 N.W.2d 595 (2009).
To demonstrate that Hines’ noncriminal motive argument
falls short, we, once again, find it helpful to juxtapose the
facts of this case with the facts of a case in which such an
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
argument succeeded. In both State v. Heitman,
262 Neb. 185,
629 N.W.2d 542 (2001), and another case involving entrapment, State v. Canaday,
263 Neb. 566,
641 N.W.2d 13 (2002),
this court discussed U.S. v. Poehlman,
217 F.3d 692 (9th
Cir. 2000). In Poehlman, a recently divorced defendant with
unusual sexual proclivities was searching for a companion in
“‘alternative lifestyle’” discussion groups on the internet.
Id.
at 695. There, he responded to an advertisement posted by a
law enforcement agent posing as a woman who claimed to be
looking for someone who understood her family’s “‘unique
needs.’”
Id. Thereafter followed an extensive email correspondence in which the defendant expressed an interest in a
relationship with the woman, but the woman hinted at a desire
to have the defendant engage in sexual acts with her children.
The defendant eventually came to understand the woman’s
hints, expressed a willingness to engage in sexual acts with her
children, and traveled to meet the woman and her children at
a hotel room.
In reversing the defendant’s conviction on entrapment
grounds, the U.S. Court of Appeals for the Ninth Circuit concluded that the law enforcement agent took advantage of the
defendant’s desire for a relationship with the woman by conditioning any such relationship on his willingness to engage
in sexual acts with her children.
Id. at 702 (“[t]he government
thus played on [the defendant’s] obvious need for an adult
relationship, for acceptance of his sexual proclivities and for
a family, to draw him ever deeper into a sexual fantasy world
involving these imaginary girls”).
But while the Poehlman court found that the government
used the defendant’s noncriminal motivation for a relationship with an adult woman to lure him into criminal activity,
there is no similar evidence in this case that law enforcement
took advantage of Hines’ noncriminal motives. There is no
evidence here that law enforcement even knew about Hines’
claimed alternative motivations, much less that it took advantage of them.
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. HINES
Cite as 313 Neb. 685
In fact, Hines appears to misunderstand what it means for
law enforcement to induce a defendant into criminal activity
by taking advantage of a noncriminal motive. Unable to point
to evidence that law enforcement knew of or took advantage
of his claimed noncriminal motives, all that Hines has left is
an argument that in his online interactions with Lily and in
his arranging to meet her at the park, he lacked the requisite
intent to commit either use of an electronic communication
device to commit sexual assault or enticement by an electronic communication device. But a contention that there was
an absence of the necessary criminal intent is not an argument
that Hines was entrapped; it is an argument that Hines did not
commit the essential elements of the charged offenses. The
jury rejected that argument at trial, and Hines does not contend on appeal that the evidence was insufficient to support
his convictions.
For these reasons, Hines cannot point to even a scintilla of
evidence that the State induced him to commit the offenses.
The district court therefore did not err in refusing to submit an
entrapment instruction to the jury.
Excessive Sentences.
This leaves Hines’ contention that his sentences were excessive. On this point, Hines does not and cannot dispute that he
was sentenced within the statutory limits. His sentences were
within the 3- to 50-year statutory range for use of an electronic
communication device to commit sexual assault and the 0- to
2-year statutory range for enticement by electronic communication device. See
Neb. Rev. Stat. §§ 28-105(1) (Cum. Supp.
2022), 28-320.02, and 28-833(1)(a). Instead, Hines argues that
the district court failed to adequately consider his age, his
alleged motivation to help Lily, his social background, evidence of his drug addiction, the fact that there was no violence
involved in the offense, and the results of two sex offender risk
assessments. We are not persuaded.
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Nebraska Supreme Court Advance Sheets
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STATE V. HINES
Cite as 313 Neb. 685
[4,5] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether a sentencing court abused its discretion
in considering and applying the relevant factors as well as
any applicable legal principles in determining the sentence
to be imposed. State v. Stack,
307 Neb. 773,
950 N.W.2d 611
(2020). When imposing a sentence, the sentencing court is
to consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5)
past criminal record or record of law-abiding conduct, and
(6) motivation for the offense, as well as (7) the nature of
the offense, and (8) the amount of violence involved in the
commission of the crime. State v. Archie,
305 Neb. 835,
943
N.W.2d 252 (2020).
We conclude that the district court did not abuse its discretion in sentencing Hines. The district court expressly stated that
it considered the parties’ arguments and the sentencing factors
listed above. It rejected Hines’ argument that he was motivated
to help Lily and noted that “[h]ad the undercover officer been
in fact a 14-year-old girl, the Court believes that this would
have resulted in sexual assault on a child.” The district court
also considered that sexual assault is “one of the most serious
offenses” and found “very few mitigators” that would weigh
in favor of a lower sentence. And while the presentence investigation report revealed that Hines scored “moderate low” and
“low” risk on certain sex offender assessments, it also shows
that Hines has a “[v]ery [h]igh” risk of reoffending generally.
On this record, we cannot say that the district court abused its
discretion in imposing its sentences.
CONCLUSION
The district court did not err by refusing to instruct the jury
on entrapment or by imposing excessive sentences. The judgment of the district court is affirmed.
Affirmed.
