 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Sanders5/27/2005
d alcohol level, that at the time of penetration, she was so incapacitated that she was incapable of resisting Sanders or appraising the circumstances. The jury could also have found that Sanders was aware of, and took advantage of, J.F.'s incapacity. Viewing and construing the evidence in this case most favorably to the State, we conclude that there was sufficient evidence to support Sanders' conviction for first degree sexual assault.
Excessive Sentence in Procuring Alcohol Conviction
Finally, Sanders asserts that his sentence for procuring alcohol for a minor is excessive. We conclude that the district court did not abuse its discretion in sentencing Sanders on this count.
Sanders was sentenced to 5 years' probation on the first degree sexual assault conviction and to 90 days in jail and a $500 fine on the conviction for procuring alcohol for a minor. Sanders argues that the sentence in the alcohol conviction was excessive because he should not have been given imprisonment on that conviction when he was given probation on the sexual assault conviction. He argues that if grounds existed to make probation appropriate for the sexual assault conviction, the same grounds should have required probation rather than imprisonment on the alcohol conviction.
Procuring alcohol for a minor in violation of § 53-180 is a Class I misdemeanor. Neb. Rev. Stat. § 53-180.05(1) (Reissue 2004). The maximum penalty for a Class I misdemeanor is "not more than one year imprisonment, or one thousand dollars fine, or both." Neb. Rev. Stat. § 28-106(1) (Cum. Supp. 2000). Therefore, Sanders' sentence of 90 days in jail and a $500 fine is within statutory limits, and his sentence will not be disturbed on appeal absent an abuse of discretion by the district court. See State v. Banes, 268 Neb. 805, 688 N.W.2d 594 (2004).
As the State notes and the record supports, this was Sanders' second conviction for procuring alcohol for a minor. Sanders was also previously convicted of selling alcohol without a license and of violating a permit for a public dance. Whereas Sanders had a prior history of alcohol offenses, he lacked a prior history of violent crimes. Considering that Sanders had previous convictions related to alcohol offenses, we do not find the sentence on this count excessive. Contrary to Sanders' argument, it was not an abuse of discretion to sentence Sanders to imprisonment on the alcohol conviction while sentencing him to probation on the assault conviction because different factors came to bear in the sentencing considerations for each offense. We find no abuse of discretion in Sanders' sentence on the procuring alcohol for a minor offense.
CONCLUSION
We conclude that the district court did not err in rejecting Sanders' various challenges to the jury selection process and in overruling his request for discovery of information regarding jurors. We also conclude that the court did not err in permitting the testimony of Ross, in instructing the jury on "without consent," and in failing to instruct regarding "significant abnormality." We further conclude that there was sufficient evidence to support Sanders' conviction for first degree sexual assault. Finally, we conclude that Sanders' sentence for procuring alcohol for a minor was not an abuse of discretion. We therefore affirm Sanders' convictions and sentences.
Affirmed.
|