State v. Antoniak

or verdict form No. 2 would have been harmless error because
the jury never reached the seatbelt defense. We affirm.
affiRmed .
state of nebRaska , appellant , v .
scott a. antoniak , appellee .
744 N.W.2d 508
Filed February 19, 2008. 	No. A-07-457.
1. 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.
2. Judges: Words and Phrases. A judicial abuse of discretion exists only when
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 submitted
for disposition.
3. 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.
4. Sentences: Appeal and Error. In excessively lenient sentence cases, an appellate
court does not review the sentence de novo and the standard is not what sentence
the appellate court would have imposed.
5. Sentences. 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.
Appeal from the District Court for Douglas County: J oseph s.
tRoia, Judge. Affirmed.
Jeffrey 	J. 	Lux, 	Deputy 	Douglas 	County 	Attorney, 	for
appellant.
Emil M. Fabian, of Fabian & Thielen, for appellee.
inbody, Chief Judge, and caRlson and cassel, Judges.
cassel, Judge.
INTrODUCTION
Following a bench trial, the district court for Douglas County
convicted Scott A. Antoniak of first degree sexual assault and
STATE v. ANTONIAk 	445
Cite as 16 Neb. App. 445
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

sentenced Antoniak to 5 years’ probation. The State of Nebraska
appeals the sentence imposed on Antoniak as excessively lenient.
Finding no abuse of discretion in the sentence of probation, we
affirm the sentence of the district court.
bACkGrOUND
On July 10, 2005, while Antoniak was on duty and dressed
in his uniform as an Omaha police officer, he approached the
victim, a prostitute. Antoniak ran the victim’s name for out-
standing warrants, discovered an active warrant for her arrest,
and had the victim sit in the front seat of the police cruiser.
Antoniak drove the cruiser a short distance and told the victim
that she could point out the drug dealers, go to jail, or perform
oral sex on him. The victim chose the last option and preserved
some of Antoniak’s semen. The State charged Antoniak with
first degree sexual assault. Following a bench trial, the district
court convicted Antoniak of the charge and sentenced him to 5
years’ probation.
pursuant to Neb. rev. Stat. §§ 29-2320 and 29-2321 (Cum. Supp.
2006), the State requested and received the Attorney General’s
approval to appeal the sentence as excessively lenient.
ASSIGNMENT OF ErrOr
The State alleges that the district court abused its discretion
in imposing an excessively lenient sentence.
STANDArD OF rEVIEW
[1,2] 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 of
the trial court’s discretion. State v. Moore, 274 Neb. 790, 743
N.W.2d 375 (2008). A judicial abuse of discretion exists only
when the reasons or rulings of a trial judge are clearly unten-
able, unfairly depriving a litigant of a substantial right and deny-
ing a just result in matters submitted for disposition. Id.
ANALYSIS
[3] When the State appeals from a sentence, contending that
it is excessively lenient, an appellate court reviews the record
446 	16 NEbrASkA AppELLATE rEpOrTS

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. State v. Thompson, 15 Neb. App. 764, 735
N.W.2d 818 (2007). As stated above, the district court convicted
Antoniak of first degree sexual assault and imposed a sentence
of 5 years’ probation. First degree sexual assault is a Class II
felony, which is punishable by 1 to 50 years’ imprisonment. See
Neb. rev. Stat. §§ 28-105(1) (Cum. Supp. 2006) and 28-319(2)
(reissue 1995). Under Neb. rev. Stat. § 29-2260 (reissue
1995), a court may withhold a 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 protection of the public because:
(a) The risk is substantial that during the period of
probation the offender will engage in additional crim-
inal conduct;
(b) The offender is in need of correctional treatment that
can be provided most effectively by commitment to a cor-
rectional 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 	seri-
ous 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 com-
mission 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
STATE v. ANTONIAk 	447
Cite as 16 Neb. App. 445

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;
(j) The offender is likely to respond affirmatively to
probationary treatment; and
(k) Imprisonment of the offender would entail excessive
hardship to his or her dependents.
In our review to determine whether the sentence was exces-
sively lenient, we consider factors similar to those listed above
under Neb. rev. Stat. § 29-2322 (reissue 1995), which provides
in pertinent part:
[T]he appellate court, upon a review of the record, shall
determine whether the sentence imposed is excessively
lenient, having 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 promote
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.
At the time of sentencing, Antoniak was 29 years old. He was
living with his wife and child and another child was expected
in May 2007. He had obtained a bachelor’s degree in criminal
justice and had worked for the Omaha police Department from
November 2001 until he was fired in August 2005. Since that
time, he had been employed as a laborer and then as a ware-
house manager. Antoniak’s criminal history consisted of a stop
sign violation in 2002 for which he was not prosecuted. As
448 	16 NEbrASkA AppELLATE rEpOrTS

part of the presentence investigation report (pSI), Antoniak was
asked to “[w]rite a complete description of the events that led
to your arrest,” and he responded, “On July 10, [2005,] while
employed by the Omaha police Dept. a female prostitute made
an allegation of a sexual assault towards me while on duty. I was
arrested for 1st degree sexual assault.”
The probation officer who prepared the pSI stated:
There are two aggravating facts against [Antoniak] regard-
ing sentencing. One is the seriousness of this charge,
which is a Class II felony. The other has to do with the
circumstances, in that he used his position of authority as
a police officer, and as such [was] held to a higher standard
of conduct. It is because of these aggravating factors, in
that it would depreciate the seriousness of the offense, that
I do not recommend probation in this case.
On the sexual adjustment inventory administered as part of
the pSI, Antoniak’s scores fell within the problem risk range
on two scales: the sex item truthfulness scale and the sexual
assault scale.
During the sentencing hearing, the district court received
Dr. Joseph L. rizzo’s psychological evaluation of Antoniak.
The evaluation stated that Antoniak’s risk assessment scales
showed him to be at low risk for violence or reoccurrence
of another sexual crime. rizzo also stated that Antoniak was
“manifesting appropriate anxiety, depression and guilt regarding
the incident at hand and is seen to be an individual who could
benefit from extended probation in an outpatient rehabilitation
process.” rizzo anticipated that Antoniak “would do extremely
well on probation.” Antoniak apologized during the hearing for
his actions and apologized to his “family and friends, the police
department for the shame and embarrassment and pain that [he]
caused everyone through this horrible mistake.”
The State acknowledges that Antoniak has a low probability
to reoffend, lacks a prior criminal record, and had been a posi-
tive member of the community, but argues that “[t]he nature and
circumstances of this particular crime warrants [sic] a period
of incarceration to reflect the seriousness of the offense, to
promote respect for the law, and to provide just punishment for
committing a first degree sexual assault while in uniform.” brief
STATE v. ANTONIAk 	449
Cite as 16 Neb. App. 445

for appellant at 8. The State cites to cases from other jurisdic-
tions in urging that a police officer who breaches the public trust
by criminal acts should be denied probation. However, none of
these cases held that failing to impose a prison sentence for an
offense involving breach of the public trust by a police officer
constituted an abuse of discretion. rather, the appellate courts
in the cases cited by the State simply held that the trial judge
may weigh the breach of public trust as a factor in determining
whether to grant or deny probation or a suspended sentence. See,
State v. Dockery, 917 S.W.2d 258 (Tenn. App. 1995), overruled
on other grounds, State v. Troutman, 979 S.W.2d 271 (Tenn.
1998); Woodson v. State, 608 S.W.2d 591 (Tenn. App. 1980). In
the case before us, the record amply demonstrates that the sen-
tencing judge expressly considered and weighed this factor.
[4,5] In cases such as this, we do not review the sentence
de novo and the standard is not what sentence we would have
imposed. State v. Thompson, 15 Neb. App. 764, 735 N.W.2d
818 (2007). The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge’s obser-
vation of the defendant’s demeanor and attitude and all the facts
and circumstances surrounding the defendant’s life. State v.
Moore, 274 Neb. 790, 743 N.W.2d 375 (2008). but there also
must be some reasonable factual basis for imposing a particular
sentence. Id.
The district court stated that Antoniak had abused his author-
ity, took advantage of his authority, and became “a rogue cop.”
The court recognized that Antoniak had lost his job as a police
officer. The court further stated:
Now, what you did was serious and people believe
that the seriousness of this crime demands imprisonment,
yet, imprisonment is not the only form of punishment.
punishment should be a blending of deterrence, reforma-
tion and retribution. It should be a concern for the public
and society. They must be protected. I don’t know that
this could ever happen again . . . by you. And whether it
happens or not to this day . . . by other officers, I don’t
know, but hopefully they’ve learned something by what’s
happened to you. You can no longer use the color of your
position to get what you want.
450 	16 NEbrASkA AppELLATE rEpOrTS

You know, the major goals [sic] of sentencing is the
offender should be dealt [with] in a manner that is most
likely to avoid committing future crimes. You said this
won’t happen again. I believe it won’t happen again.
So through the years it’s been found that probation
should be a sentence unless confinement is necessary to
protect the public, as I mentioned, for future activities. I
don’t believe that’s going to happen. The offender is of
need of correctional treatment which can most . . . effec-
tively [be] provided in confinement. That isn’t . . . a situ-
ation here. You have gone to Dr. rizzo. You’re willing to
do what he recommends. I don’t know that you could get
that in confinement.
And the third thing is it would unduly depreciate the
offense in that you would be a threat, and I don’t know
that that is the situation. As I’ve said, I don’t think you
could do this again, not just because you’re no longer a
police officer, but because of what you’ve done to your
family and your wife. You’ve got to look her in the eye
everyday [sic]. You have to live with that.
So taking into consideration what has happened up to
this point, all the letters on your behalf, and those that
believe jail is the answer, . . . I believe jail is not the
answer at this time.
The probationary sentence imposed by the district court
contained a number of terms and conditions. Antoniak must,
of course, obey all laws and refrain from unlawful conduct. He
must also remain gainfully employed or otherwise keep produc-
tively busy. He cannot possess a firearm or dangerous weapon.
He must secure a travel permit before leaving Omaha. Antoniak
must register as a sex offender and follow the laws and guide-
lines associated with such registration. He has to follow all
recommendations of the psychological evaluation, including
outpatient treatment. He must write letters of apology to the
victim, to another individual who alleged Antoniak fondled her,
to the Omaha police chief, and to the Omaha police Department.
He has to complete 250 hours of community service. Antoniak
must also submit to a written report each month as directed by
the probation officer and notify the probation officer prior to
STATE v. ANTONIAk 	451
Cite as 16 Neb. App. 445

any change of employment or residence. He has to submit his
person, residence, business, and vehicle to search and seizure at
any time by any law enforcement or probation officer with or
without a search warrant. Antoniak must also pay court costs,
a probation administrative enrollment fee, and a $25 monthly
probation programming fee. Antoniak must comply with every
one of these conditions of probation, or he will be subject to the
filing of a motion to revoke his probation and the imposition of
a new sentence.
We conclude that there was a reasonable factual basis for the
sentence imposed and that the sentence did not constitute an
abuse of the district court’s discretion.
CONCLUSION
because we conclude that the district court did not abuse its
discretion in sentencing Antoniak, we affirm the sentence.
affiRmed .
452 	16 NEbrASkA AppELLATE rEpOrTS