State v. Rung

State of NebraSka , appellee , v.
todd a. ruNg , appellaNt.
774 N.W.2d 621
Filed November 13, 2009. 	No. S-08-878.
1. Constitutional Law: Statutes: Appeal and Error. Whether a statute is constitu-
tional is a question of law; accordingly, the Nebraska Supreme Court is obligated
to reach a conclusion independent of the decision reached by the court below.
2. Constitutional Law: Statutes: Presumptions. A statute is presumed to
be constitutional, and all reasonable doubts will be resolved in favor of its
constitutionality.
3. Constitutional Law: Statutes: Legislature: Intent. All reasonable intendments
must be indulged to support the constitutionality of legislative acts, including
classifications adopted by the Legislature.
4. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an abuse of judi-
cial discretion.
5. Constitutional Law: Equal Protection: Statutes: Presumptions: Proof. Where
a statute is challenged under the Equal Protection Clause, the general rule is that
legislation is presumed to be valid, and the burden of establishing the unconstitu-
tionality of the statute is on the one attacking its validity.
6. Equal Protection. The Equal Protection Clause does not forbid classifications; it
simply keeps governmental decisionmakers from treating differently persons who
are in all relevant aspects alike.
7. Equal Protection: Proof. The initial inquiry in an equal protection analysis
focuses on whether the challenger is similarly situated to another group for the
purpose of the challenged governmental action. Absent this threshold showing,
one lacks a viable equal protection claim. In other words, the dissimilar treatment
of dissimilarly situated persons does not violate equal protection rights.
8. Equal Protection: Statutes. In an equal protection challenge to a statute, the
level of judicial scrutiny applied to a particular classification may be dispositive.
9. Constitutional Law: Statutes. Legislative classifications involving either a sus-
pect class or a fundamental right are analyzed with strict scrutiny, and legislative
classifications not involving a suspect class or fundamental right are analyzed
using rational basis review.
10. ____: ____. Neb. Rev. Stat. § 28-320.02 (Reissue 2008) does not implicate
speech regarding otherwise legal activity; it targets only speech used for the pur-
pose of enticing a child to engage in illegal sexual conduct, and such speech is
not protected by the First Amendment.
Williams’ plea in bar and (2) remand the cause to the district
court for further proceedings consistent with this opinion.
reverSed aNd remaNded with directioNS.
STATE v. RuNg 	855
Cite as 278 Neb. 855
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:49 AM CST

11. Equal Protection: Statutes. When a classification created by state action does
not jeopardize the exercise of a fundamental right or categorize because of an
inherently suspect characteristic, the Equal Protection Clause requires only that
the classification rationally further a legitimate state interest.
12. Constitutional Law: Statutes: Legislature: Intent. under rational basis review,
an appellate court will uphold a classification created by the Legislature where it
has a rational means of promoting a legitimate government interest or purpose. In
other words, the difference in classification need only bear some relevance to the
purpose for which the difference is made.
13. Equal Protection: Proof. under the rational basis test, whether an equal protec-
tion claim challenges a statute or some other government act or decision, the
burden is upon the challenging party to eliminate any reasonably conceivable
state of facts that could provide a rational basis for the classification.
14. Constitutional Law: Statutes: Appeal and Error. As a general rule, in a chal-
lenge to the overbreadth and vagueness of a law, a court’s first task is to ana-
lyze overbreadth.
15. Constitutional Law: Statutes. A statute is unconstitutionally overbroad and
thus offends the First Amendment if, in addition to forbidding speech or conduct
which is not constitutionally protected, it also prohibits the exercise of constitu-
tionally protected speech.
16. ____: ____. A statute may be invalidated on its face only if its overbreadth is
“substantial,” i.e., when the statute is unconstitutional in a substantial portion of
cases to which it applies.
17. ____: ____. In order to prevail upon a facial attack to the constitutionality of
a statute, the challenger must show either that every application of the statute
creates an impermissible risk of suppression of ideas or that the statute is “sub-
stantially” overbroad, which requires the court to find a realistic danger that the
statute itself will significantly compromise recognized First Amendment protec-
tions of parties not before the court.
18. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness doctrine
requires that a penal statute define the criminal offense with sufficient definite-
ness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.
19. Constitutional Law: Statutes: Standing. To have standing to assert a claim
of vagueness, a defendant must not have engaged in conduct which is clearly
prohibited by the questioned statute and cannot maintain that the statute is vague
when applied to the conduct of others.
20. ____: ____: ____. A court will not examine the vagueness of the law as it might
apply to the conduct of persons not before the court.
21. ____: ____: ____. The test for standing to assert a vagueness challenge is the
same whether the challenge asserted is facial or as applied.
22. Sentences: Probation and Parole: Appeal and Error. An order denying proba-
tion and imposing a sentence within the statutorily prescribed limits will not be
disturbed on appeal unless there has been an abuse of discretion.
23. Judges: Words and Phrases. The term “judicial abuse of discretion” means that
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
856 	278 NEbRASkA REPoRTS

a litigant of a substantial right and denying a just result in matters submitted
for disposition.
24. Sentences. When imposing a sentence, a sentencing judge should 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 violence involved in the commission of the crime.
25. ____. In imposing a sentence, the sentencing court is not limited to any math-
ematically applied set of factors.
26. ____. 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.
27. Sentences: Probation and Parole. In considering a sentence of probation in lieu
of incarceration, the court should not withhold incarceration if a lesser sentence
would depreciate the seriousness of the offender’s crime or promote disrespect for
the law.
Appeal from the District Court for Lancaster County: paul
d. merritt, Jr ., Judge. Affirmed.
Dennis R. keefe, Lancaster County Public Defender, and
Shawn Elliott for appellant.
Jon bruning, Attorney general, and Erin E. Tangeman for
appellee.
heavicaN, c.J., wright, coNNolly, gerrard, StephaN, and
miller-lermaN, JJ.
miller-lermaN, J.
NATuRE oF CASE
Todd A. Rung appeals his conviction for use of a computer
to entice a child or a peace officer believed to be a child for
sexual purposes, a violation of Neb. Rev. Stat. § 28-320.02
(Reissue 	2008). 	Rung 	challenges 	the 	constitutionality 	of
§ 28-320.02 and asserts that his sentence is excessive. We
reject Rung’s constitutional challenges, and we affirm Rung’s
conviction and sentence.
STATEMENT oF FACTS
The State filed an information in the district court for
Lancaster 	County 	charging 	Rung 	with 	a 	violation 	of
§ 28-320.02(1), which at that time provided:
STATE v. RuNg 	857
Cite as 278 Neb. 855

No person shall knowingly solicit, coax, entice, or lure
(a) a child sixteen years of age or younger or (b) a peace
officer who is believed by such person to be a child six-
teen years of age or younger, by means of a computer . . .
to engage in an act which would be in violation of section
28-319, 28-319.01, or 28-320.01 or subsection (1) or (2)
of section 28-320.
Rung originally entered a plea of not guilty, but he moved
for and was given permission to withdraw the plea so that he
could file a motion to quash the information on the basis that
§ 28-320.02 was facially invalid.
In his motion to quash, Rung asserted that § 28-320.02
is unconstitutional on its face because it violates the Equal
Protection Clauses of the u.S. and Nebraska Constitutions and
because it is vague and overbroad, in violation of the 1st and
14th Amendments to the u.S. Constitution and article I, § 5, of
the Nebraska Constitution. The district court overruled Rung’s
motion to quash.
With regard to the equal protection challenge, the court char-
acterized Rung’s equal protection argument as comparing per-
sons who violate the enticement statute at issue, § 28-320.02,
to persons who violate the sexual assault statutes, Neb. Rev.
Stat. §§ 28-319, 28-319.01, and 28-320.01 (Reissue 2008). The
court concluded that Rung did not meet the threshold show-
ing required for an equal protection claim, because “persons
addressed by § 28-320.02 are dissimilar from those persons
addressed by § 28-319, § 28-319.01 or § 28-320.01. . . . [T]hey
are not in all relevant aspects alike.” With regard to the free
speech challenge, the court concluded that § 28-320.02 “is nar-
rowly tailored to achieve a legitimate governmental purpose
(the protection of minors from adults seeking sexual relations)”
and that “[t]here is no realistic danger that the enforcement of
§ 28-320.02 will significantly compromise recognized First
Amendment protections of persons not currently before the
court or will cause persons to refrain from exercising consti-
tutionally protected expression for fear of criminal sanctions.”
The court further concluded that Rung did not have standing
to raise a vagueness challenge to § 28-320.02, because the
858 	278 NEbRASkA REPoRTS

conduct in which he was alleged to have been engaged was
clearly proscribed by the statute.
After the court overruled his motion to quash, Rung waived
his right to a jury trial. The case was tried to the bench
on stipulated evidence which included police reports and
a copy of the screen profile used online by the undercover
police officer.
The police reports indicated that on the morning of october
10, 2007, Rung conversed in an online chat room with a
police officer who was posing as a girl with the screen name
“tendogurl.” Rung, who was 37 years old at the time, asked
“tendogurl” her age; she responded that she was 15 years old.
He asked whether she had been with older men and whether
she was willing to meet offline. Rung asked “tendogurl” for
a picture of herself, and the police officer sent a picture of a
female police officer that was taken when she was 15 years old.
Rung sent “tendogurl” nude pictures of himself.
Rung arranged a meeting with “tendogurl” so that they
could “get naked and fuck.” Rung also asked about oral sex
and whether he could take pictures during their encounter.
Rung arranged to meet with “tendogurl” that afternoon. Police
arrested Rung after he arrived at the designated park and
approached an undercover female police officer. During an
interview in which Rung waived his Miranda rights, Rung
admitted that he believed he was conversing with a 15-year-old
girl and that he planned to meet the girl in order to have sexual
intercourse with her.
Rung renewed his motion to quash, and the court took the
motion under advisement pending its review of the evidence.
Following its review of the evidence, the court overruled
Rung’s renewed motion to quash and found him guilty of vio-
lating § 28-320.02(1)(b). The court sentenced Rung to impris-
onment for 1 to 2 years and ordered him to be subject to the
requirements of Nebraska’s Sex offender Registration Act.
Rung appeals his conviction and sentence.
ASSIgNMENTS oF ERRoR
Rung asserts that the district court erred in failing to find
§ 28-320.02 facially invalid because (1) it violates the Equal
STATE v. RuNg 	859
Cite as 278 Neb. 855

Protection Clauses of the u.S. and Nebraska Constitutions
and (2) it is vague and overbroad, in violation of the 1st and
14th Amendments to the u.S. Constitution and article I, § 5,
of the Nebraska Constitution. Rung also asserts that the court
imposed an excessive sentence.
STANDARDS oF REVIEW
[1-3] Whether a statute is constitutional is a question of law;
accordingly, we are obligated to reach a conclusion indepen-
dent of the decision reached by the court below. In re Interest
of J.R., 277 Neb. 362, 762 N.W.2d 305 (2009). A statute is
presumed to be constitutional, and all reasonable doubts will
be resolved in favor of its constitutionality. Id. All reasonable
intendments must be indulged to support the constitutional-
ity of legislative acts, including classifications adopted by the
Legislature. Id.
[4] Sentences within statutory limits will be disturbed by an
appellate court only if the sentences complained of were an
abuse of judicial discretion. State v. Branch, 277 Neb. 738, 764
N.W.2d 867 (2009).
ANALYSIS
Rung Misreads § 28-320.02.
before addressing Rung’s specific challenges to § 28-320.02,
we note that his constitutional arguments are based in large
part on an interpretation of the statute that we find to be erro-
neous. In sum, Rung argues that § 28-320.02 makes it a crime
for a person to use a computer to entice a child 16 years of age
or younger to engage in sexual conduct that may or may not
be illegal if the person actually engaged in the sexual conduct
with the child. We reject Rung’s interpretation and find instead
that § 28-320.02 criminalizes enticement only when the con-
duct in which the person seeks to engage would be illegal if the
person actually engaged in the conduct.
Rung was charged under § 28-320.02(1), which at that
time provided:
No person shall knowingly solicit, coax, entice, or lure (a)
a child sixteen years of age or younger or (b) a peace offi-
cer who is believed by such person to be a child sixteen
860 	278 NEbRASkA REPoRTS

years of age or younger, by means of a computer . . . to
engage in an act which would be in violation of section
28-319, 28-319.01, or 28-320.01 or subsection (1) or (2)
of section 28-320.
Relevant to Rung’s arguments herein, we note that under
§ 28-319(1), “Any person who subjects another person to
sexual penetration . . . when the actor is nineteen years of
age or older and the victim is . . . less than sixteen years of
age is guilty of sexual assault in the first degree” (emphasis
supplied), and that under § 28-320.01(1), “A person commits
sexual assault of a child in the second or third degree if he or
she subjects another person fourteen years of age or younger to
sexual contact and the actor is at least nineteen years of age or
older” (emphasis supplied). The terms “sexual penetration” as
used in § 28-319 and “sexual contact” as used in § 28-320.01
refer to specific types of sexual conduct as defined in Neb. Rev.
Stat. § 28-318(5) and (6) (Reissue 2008).
Rung argues that § 28-320.02 criminalizes enticement of
a child 16 years of age or younger to engage in any sort of
sexual conduct, whether or not it would be illegal for the
person to actually engage in such conduct with the child. As
an example of the alleged scope of § 28-320.02, Rung asserts
that a 19-year-old could be prosecuted under § 28-320.02 for
using a computer to entice a 16-year-old to engage in “sexual
penetration,” even though under § 28-319, it would be illegal
to engage in “sexual penetration” only if the child were less
than 16 years of age. He also asserts by way of example that
a 19-year-old could be prosecuted under § 28-320.02 for using
a computer to entice a 15-year-old to engage in “sexual con-
tact,” even though under § 28-320.01, it would be illegal to
engage in “sexual contact” only if the child were 14 years of
age or younger.
Rung misreads § 28-320.02. by its terms, § 28-320.02
specifically refers to enticing a child “to engage in an act
which would be in violation of section 28-319, 28-319.01,
or 28-320.01 or subsection (1) or (2) of section 28-320.”
Therefore, one can violate § 28-320.02 only if the contem-
plated sexual conduct would be in violation of one of the speci-
fied statutes. If one uses a computer to entice a person 16 years
STATE v. RuNg 	861
Cite as 278 Neb. 855

of age or younger to engage in an act that would not be in
violation of any of the specified statutes, then that person has
not violated § 28-320.02. We conclude that Rung’s reading of
the statute is erroneous, and we evaluate Rung’s constitutional
challenges with our proper understanding.
Rung Has Not Shown That § 28-320.02 Violates
Equal Protection Standards.
Rung first asserts that the district court erred by failing
to find that § 28-320.02 is facially invalid because it vio-
lates the Equal Protection Clauses of the u.S. and Nebraska
Constitutions. He argues that the statute infringes on fun-
damental rights of free speech and sexual privacy. He also
argues that the statute violates equal protection because it
imposes on a person who entices a police officer believed
to be a child the same punishment that other statutes impose
on a person who actually engages in sexual contact with a
real child. We reject Rung’s arguments and conclude that the
court did not err when it concluded that § 28-320.02 does
not violate the Equal Protection Clauses of the u.S. and
Nebraska Constitutions.
[5,6] Where a statute is challenged under the Equal Protection
Clause, the general rule is that legislation is presumed to be
valid, and the burden of establishing the unconstitutionality
of the statute is on the one attacking its validity. In re Interest
of J.R., 277 Neb. 362, 762 N.W.2d 305 (2009). The Equal
Protection Clause of the 14th Amendment, § 1, mandates that
no state shall “deny to any person within its jurisdiction the
equal protection of the laws.” This clause does not forbid clas-
sifications; it simply keeps governmental decisionmakers from
treating differently persons who are in all relevant aspects
alike. See In re Interest of J.R., supra.
[7] The initial inquiry in an equal protection analysis focuses
on whether the challenger is similarly situated to another
group for the purpose of the challenged governmental action.
Absent this threshold showing, one lacks a viable equal pro-
tection claim. Id. In other words, the dissimilar treatment of
dissimilarly situated persons does not violate equal protection
rights. Id.
862 	278 NEbRASkA REPoRTS

[8,9] In an equal protection challenge to a statute, the level
of judicial scrutiny applied to a particular classification may
be dispositive. Id. Legislative classifications involving either
a suspect class or a fundamental right are analyzed with strict
scrutiny, and legislative classifications not involving a suspect
class or fundamental right are analyzed using rational basis
review. Id.
Rung argues that § 28-320.02 classifies and treats differ-
ently those who seek out sexual partners using a computer
as compared to those who seek out sexual partners by “more
readily accepted venues” such as “a school, a work place, a
social club, a church, or a dating service.” brief for appellant
at 19. Rung does not attempt to argue that such classification
targets a suspect class. Instead, he argues that the classification
should receive strict scrutiny because it jeopardizes the exer-
cise of fundamental rights, namely the rights to free speech and
sexual privacy.
Rung concedes that speech to promote criminal activity
is not protected speech. In U.S. v. Bailey, 228 F.3d 637,
639 (6th Cir. 2000), the u.S. Court of Appeals for the Sixth
Circuit stated that a defendant “simply does not have a First
Amendment right to attempt to persuade minors to engage in
illegal sex acts.” In U.S. v. Meek, 366 F.3d 705, 721 (9th Cir.
2004), the u.S. Court of Appeals for the Ninth Circuit held that
no otherwise legitimate speech was jeopardized by a statute
criminalizing inducement of minors for illegal sexual activity
because “speech is merely the vehicle through which a pedo-
phile ensnares the victim.” Various state courts considering stat-
utes similar to § 28-320.02 have also rejected First Amendment
challenges on the basis that speech to entice a minor to engage
in illegal sexual activity is not speech protected by the First
Amendment. See, Podracky v. Com., 52 Va. App. 130, 662
S.E.2d 81 (2008); State v. Colosimo, 122 Nev. 950, 142 P.3d
352 (2006); State v. Backlund, 672 N.W.2d 431 (N.D. 2003).
See, also, People v. Foley, 94 N.Y.2d 668, 731 N.E.2d 123, 709
N.Y.S.2d 467 (2000) (regarding statute criminalizing dissemi-
nation of indecent material to minors).
[10] Although Rung concedes this point, he asserts that
§ 28-320.02 restricts speech regarding activity that is not
STATE v. RuNg 	863
Cite as 278 Neb. 855

criminal. He argues that § 28-320.02 is not narrowly drawn to
prohibit speech using a computer to entice a child to engage
in sexual acts legitimately prohibited by law. Rung’s argument
is based on his misreading of § 28-320.02. As we discussed
above, one can violate § 28-320.02 only by enticing for pur-
poses that, if achieved, would be in violation of one of the
specified statutes. Therefore, § 28-320.02 does not implicate
speech regarding otherwise legal activity; it targets only speech
used for the purpose of enticing a child to engage in illegal
sexual conduct, and we agree with the authorities cited above
that such speech is not protected by the First Amendment.
Rung also argues that § 28-320.02 should receive strict
scrutiny because it jeopardizes the exercise of a fundamental
right to sexual privacy recognized by the u.S. Supreme Court
in Lawrence v. Texas, 539 u.S. 558, 123 S. Ct. 2472, 156
L. Ed. 2d 508 (2003). However, we have held that “when a
law regulates sexual conduct involving a minor, Lawrence is
inapplicable.” State v. Senters, 270 Neb. 19, 24, 699 N.W.2d
810, 816 (2005). The statute in this case, § 28-320.02, is
geared toward enticement of minors to engage in sexual
conduct that would violate specified statutes, and as such,
§ 28-320.02 does not jeopardize the fundamental right recog-
nized in Lawrence.
[11-13] because Rung asserts no suspect classification and
because the statute does not jeopardize a fundamental right,
the classification in § 28-320.02 is subject to a rational basis
review for equal protection purposes. When a classification
created by state action does not jeopardize the exercise of a
fundamental right or categorize because of an inherently sus-
pect characteristic, the Equal Protection Clause requires only
that the classification rationally further a legitimate state inter-
est. Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb.
278, 739 N.W.2d 742 (2007). under rational basis review, we
will uphold a classification created by the Legislature where
it has a rational means of promoting a legitimate government
interest or purpose. In re Interest of J.R., 277 Neb. 362, 762
N.W.2d 305 (2009). In other words, the difference in clas-
sification need only bear some relevance to the purpose for
which the difference is made. Id. under the rational basis test,
864 	278 NEbRASkA REPoRTS

whether an equal protection claim challenges a statute or some
other government act or decision, the burden is upon the chal-
lenging party to eliminate any reasonably conceivable state
of facts that could provide a rational basis for the classifica-
tion. Id.
Rung argues that § 28-320.02 classifies based on the means
by which one seeks out sexual partners and punishes those
who use a computer but not those who use other means. We
conclude that this classification rationally furthers a legitimate
state interest. The State has a legitimate interest in prevent-
ing the sexual exploitation of children, and the Legislature
rationally could have found that the use of a computer was a
particularly effective method for those seeking to engage in
prohibited sexual activities to find and entice children.
Rung also argues that § 28-320.02 violates equal protection
because it imposes on a person who entices a police officer
believed to be a child to engage in sexual contact the same
punishment that other statutes impose on a person who actu-
ally engages in sexual contact with a real child. Whether or not
the basis of this argument is correct, as noted above, the Equal
Protection Clause “simply keeps governmental decisionmakers
from treating differently persons who are in all relevant aspects
alike.” In re Interest of J.R., 277 Neb. at 382, 762 N.W.2d at
322. Equal protection prevents a government from treating
similarly situated persons differently, but it does not prevent
government from treating differently situated persons similarly,
nor does it prevent the State from imposing similar punishment
for different crimes. Rung’s argument in this respect does not
state an equal protection claim, and we reject it.
We conclude that Rung has not met his burden to show that
§ 28-320.02 violates equal protection standards. The district
court did not err in rejecting Rung’s challenge to the statute.
Rung Has Not Shown That § 28-320.02
Is Vague and Overbroad.
Rung next asserts that the district court erred when it rejected
his claim that § 28-320.02 is facially invalid because it is vague
and overbroad in violation of the 1st and 14th Amendments
to the u.S. Constitution and article I, § 5, of the Nebraska
STATE v. RuNg 	865
Cite as 278 Neb. 855

Constitution. Rung claims that the statute is overbroad because
it targets speech regarding acts that would not otherwise be
illegal and that it is vague because it fails to define the crime
with sufficient definiteness. We reject Rung’s arguments and
conclude that the court did not err when it concluded that
§ 28-320.02 is neither vague nor overbroad.
[14-17] As a general rule, in a challenge to the overbreadth
and vagueness of a law, a court’s first task is to analyze over-
breadth. State v. Hookstra, 263 Neb. 116, 638 N.W.2d 829
(2002). A statute is unconstitutionally overbroad and thus
offends the First Amendment if, in addition to forbidding
speech or conduct which is not constitutionally protected, it
also prohibits the exercise of constitutionally protected speech.
State v. Rabourn, 269 Neb. 499, 693 N.W.2d 291 (2005). A
statute may be invalidated on its face, however, only if its
overbreadth is “substantial,” i.e., when the statute is unconsti-
tutional in a substantial portion of cases to which it applies.
Id. Stated another way, in order to prevail upon a facial attack
to the constitutionality of a statute, the challenger must show
either that every application of the statute creates an impermis-
sible risk of suppression of ideas or that the statute is “substan-
tially” overbroad, which requires the court to find a realistic
danger that the statute itself will significantly compromise
recognized First Amendment protections of parties not before
the court. Id.
Rung argues that § 28-320.02 is overbroad because it targets
speech regarding acts that would not otherwise be illegal. This
argument, similar to other arguments by Rung, is based on his
misreading of the statute. As we discussed above, § 28-320.02
criminalizes enticement only when the person entices a child
to engage in an act that would be in violation of one of the
specified statutes. Rung’s argument is therefore without merit,
and we reject his assertion that § 28-320.02 is unconstitution-
ally overbroad.
[18-21] The void-for-vagueness doctrine requires that a penal
statute define the criminal offense with sufficient definiteness
that ordinary people can understand what conduct is prohibited
and in a manner that does not encourage arbitrary and discrimi-
natory enforcement. State v. Faber, 264 Neb. 198, 647 N.W.2d
866 	278 NEbRASkA REPoRTS

67 (2002). To have standing to assert a claim of vagueness, a
defendant must not have engaged in conduct which is clearly
prohibited by the questioned statute and cannot maintain that
the statute is vague when applied to the conduct of others.
Faber, supra; Hookstra, supra. A court will not examine the
vagueness of the law as it might apply to the conduct of per-
sons not before the court. Faber, supra. The test for standing to
assert a vagueness challenge is the same whether the challenge
asserted is facial or as applied. Id.
We conclude that the district court in this case was cor-
rect to conclude that Rung did not have standing to challenge
§ 28-320.02 for vagueness, because the conduct with which
Rung was charged is clearly prohibited by § 28-320.02. Rung
was charged and convicted of using a computer to entice a
police officer he believed to be a 15-year-old girl to engage
in sexual penetration. Subjecting a girl under 16 years of
age to sexual penetration is a violation of § 28-319. Enticing
an officer believed to be a girl under 16 years of age to
engage in sexual penetration clearly falls within the prohibi-
tion of § 28-320.02.
Although we conclude that Rung lacks standing to chal-
lenge § 28-320.02 for vagueness, we note for completeness that
Rung again bases his argument on his assertion that the statute
could be interpreted to apply to enticement to engage in con-
duct that would not be illegal. As noted above, Rung misreads
§ 28-320.02, and his argument is without merit.
Rung has not met his burden to show that § 28-320.02
is 	unconstitutionally 	vague 	or 	overbroad, 	and 	we 	there-
fore conclude that the district court did not err in rejecting
his challenge.
The District Court Did Not Impose
an Excessive Sentence on Rung.
Rung finally asserts that the district court imposed an exces-
sive sentence. We conclude that Rung’s sentence is within
statutory limits and that the court did not abuse its discretion
by imposing the sentence.
Rung was convicted of use of a computer to entice a child or
a peace officer believed to be a child for sexual purposes, which
STATE v. RuNg 	867
Cite as 278 Neb. 855

at the time was a Class IIIA felony under § 28-320.02(2). The
maximum sentence of imprisonment for a Class IIIA felony is
5 years. Neb. Rev. Stat. § 28-105 (Reissue 2008). Therefore,
Rung’s sentence of imprisonment for 1 to 2 years is within
statutory limits.
Rung argues that the district court abused its discretion by
failing to sentence him to probation rather than imprisonment.
He asserts that probation would have been a more appropriate
punishment, because he had no prior criminal history of sex
offenses or violent crimes and the offense for which he was
convicted did not involve an actual victim because he corre-
sponded with a police officer posing as a 15-year-old girl.
[22-27] An order denying probation and imposing a sentence
within the statutorily prescribed limits will not be disturbed on
appeal unless there has been an abuse of discretion. State v.
Nelson, 276 Neb. 997, 759 N.W.2d 260 (2009). The term “judi-
cial abuse of discretion” means that the reasons or rulings of a
trial judge are clearly untenable, unfairly depriving a litigant of
a substantial right and denying a just result in matters submit-
ted for disposition. Id. When imposing a sentence, a sentencing
judge should 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 violence involved in the commission of the
crime. Id. In imposing a sentence, the sentencing court is not
limited to any mathematically applied set of factors. Id. 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 circum-
stances surrounding the defendant’s life. Id. In considering a
sentence of probation in lieu of incarceration, the court should
not withhold incarceration if a lesser sentence would depreciate
the seriousness of the offender’s crime or promote disrespect
for the law. Id.
In sentencing Rung, the district court indicated its concern
that the sentence should not depreciate the seriousness of the
offense. The court commented to the effect that the offense
was serious because of the potential harm to children when
868 	278 NEbRASkA REPoRTS

adults “go onto the computer and . . . try to entice children to
engage in acts of sexual conduct.” Rung argues that no child
was harmed. However, the evidence indicates that Rung fully
intended to subject a person he believed to be a 15-year-old girl
to sexual penetration. Furthermore, although Rung had no prior
history of sexual assaults, his criminal history included several
other offenses over a period of almost 20 years. Considering
these factors and considering that his sentence is at the lower
end of the range of up to 5 years in prison that he could have
received, we conclude that the district court did not abuse
its discretion by sentencing Rung to imprisonment for 1 to
2 years.
CoNCLuSIoN
We conclude that the district court did not err when it
rejected Rung’s constitutional challenges to § 28-320.02 on the
basis that the statute is facially invalid either because it is a
violation of the Equal Protection Clause or because it is vague
or overbroad. We further conclude that the court did not abuse
its discretion by sentencing Rung to imprisonment for 1 to 2
years. We therefore affirm Rung’s conviction and sentence.
affirmed.
mccormack, J., participating on briefs.
iN re iNtereSt of hope l. et al .,
childreN uNder 18 yearS of age .
State of NebraSka , appellee aNd croSS-appellee , v.
beNJamiN l., appellaNt, aNd JoaNNa l.,
appellee aNd croSS-appellaNt.
775 N.W.2d 384
Filed November 13, 2009. 	No. S-08-949.
1. Juvenile Courts: Appeal and Error. Juvenile cases are reviewed de novo on the
record, and an appellate court is required to reach a conclusion independent of the
juvenile court’s findings.
2. Evidence: Appeal and Error. When the evidence is in conflict, an appellate
court may consider and give weight to the fact that the trial court observed the
witnesses and accepted one version of the facts over the other.
IN RE INTEREST oF HoPE L. ET AL. 	869
Cite as 278 Neb. 869