State v. Erickson

on review and remand the cause to the review panel for further
proceedings in accordance with this opinion.
R eveRsed and Remanded foR
fuRtheR pRoceedings.
WRight, J., not participating.
state of nebRaska , appellee , v.
JeRemy R ay eRickson, appellant.
793 N.W.2d 155
Filed January 28, 2011. 	No. S-09-1152.
1. Lesser-Included Offenses. Whether a crime is a lesser-included offense is deter-
mined by a statutory elements approach and is a question of law.
2. Jury Instructions. Whether jury instructions given by a trial court are correct is
a question of law.
3. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court resolves the questions independently of the lower court’s conclusions.
4. Venue: Appeal and Error. A motion for change of venue is addressed to the
discretion of the trial judge, whose ruling will not be disturbed absent an abuse
of discretion.
5. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
6. Jury Instructions: Proof: Appeal and Error. To establish reversible error from
a court’s refusal to give a requested instruction, an appellant has the burden to
show that (1) the tendered instruction is a correct statement of the law, (2) the
tendered instruction is warranted by the evidence, and (3) the appellant was
prejudiced by the court’s refusal to give the tendered instruction.
7. Lesser-Included Offenses: Jury Instructions: Evidence. A court must instruct
on a lesser-included offense if (1) the elements of the lesser offense for which an
instruction is requested are such that one cannot commit the greater offense with-
out simultaneously committing the lesser offense and (2) the evidence produces
a rational basis for acquitting the defendant of the greater offense and convicting
the defendant of the lesser offense.
8. Lesser-Included Offenses. To determine whether one statutory offense is a
lesser-included offense of the greater, Nebraska courts look to the elements of the
crime and not to the facts of the case.
9. Lesser-Included Offenses: Jury Instructions. Error in failing to instruct the
jury on a lesser-included offense is harmless when the jury necessarily decides
the factual questions posed by the omitted instructions adversely to the defendant
under other properly given instructions.
10. Jury Instructions: Convictions: Appeal and Error. Before an error in the giv-
ing of instructions can be considered as a ground for reversal of a conviction, it
must be considered prejudicial to the rights of the defendant.
STATE v. ErickSoN 	31
cite as 281 Neb. 31
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

11. Venue: Juror Qualifications. Under most circumstances, voir dire examination
provides the best opportunity to determine whether a court should change venue.
12. Venue: Proof. in order for a defendant to successfully move for a change of
venue based on pretrial publicity, he must show that the publicity has made
it impossible to secure a fair and impartial jury. A number of factors must be
evaluated in determining whether that burden has been met, including the nature
of the publicity, the degree to which the publicity has circulated throughout the
community, the degree to which the publicity circulated in areas to which venue
could be changed, the length of time between the dissemination of the publicity
complained of and the date of trial, the care exercised and ease encountered in the
selection of the jury, the number of challenges exercised during the voir dire, the
severity of the offenses charged, and the size of the area from which the venire
was drawn.
13. Venue: Appeal and Error. A trial court abuses its discretion in denying a motion
to change venue when a defendant establishes that local conditions and pretrial
publicity make it impossible to secure a fair and impartial jury.
14. 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 the 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.
15. Judgments: Words and Phrases. An abuse of discretion occurs when a trial
court’s decision is based upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and evidence.
16. 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.
17. ____. in imposing a sentence, the sentencing court is not limited to any math-
ematically applied set of factors.
18. ____. 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.
19. ____. Both the nature of the offense for which a defendant is being sen-
tenced and the defendant’s past criminal record are appropriate considerations in
sentencing.
Appeal from the District court for kimball county: deRek
c. WeimeR, Judge. Affirmed.
James 	r. 	Mowbray 	and 	kelly 	S. 	Breen, 	of 	Nebraska
commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Erin E. Tangeman for
appellee.
32 	281 NEBrASkA rEPorTS

heavican, 	c.J., 	WRight, 	connolly, 	geRRaRd, 	stephan,
mccoRmack , and milleR-leRman, JJ.
WRight, J.
NATUrE oF cASE
Jeremy ray Erickson (Erickson) was convicted by a jury of
intentional child abuse resulting in the death of his 15-month-
old son, Tristen Erickson (Tristen). Erickson was sentenced to
a term of 90 years to life in prison. He appeals.
ScoPE oF rEViEW
[1-3] Whether a crime is a lesser-included offense is deter-
mined by a statutory elements approach and is a question of
law. State v. Sinica, 277 Neb. 629, 764 N.W.2d 111 (2009).
Whether jury instructions given by a trial court are correct is a
question of law. Id. When reviewing questions of law, an appel-
late court resolves the questions independently of the lower
court’s conclusions. Id.
[4] A motion for change of venue is addressed to the dis-
cretion of the trial judge, whose ruling will not be disturbed
absent an abuse of discretion. State v. Schroeder, 279 Neb. 199,
777 N.W.2d 793 (2010).
[5] A sentence imposed within statutory limits will not
be disturbed on appeal absent an abuse of discretion by the
trial court. State v. Thompson, 278 Neb. 320, 770 N.W.2d
598 (2009).
FAcTS
on December 9, 2008, at 5:30 p.m., the kimball county
sheriff’s office received a 911 emergency dispatch call from
Erickson, who requested an ambulance because his son, Tristen,
was turning blue. The 911 dispatcher gave Erickson instruc-
tions on how to provide cardiopulmonary resuscitation (cPr)
for an infant.
An ambulance was dispatched from kimball, Nebraska, to
Erickson’s home in Dix, Nebraska, at 5:31 p.m. At about the
same time, Ericka Wittrock, Tristen’s mother, called 911 and
reported that Erickson had telephoned her and stated that there
was something wrong with Tristen.
STATE v. ErickSoN 	33
cite as 281 Neb. 31

Sam Gingrich, an emergency medical technician, arrived at
Erickson’s home at 5:35 p.m. and found Tristen on the floor
of the living room. Erickson was kneeling next to the child.
Tristen was not breathing and had no pulse.
Erickson told Gingrich that the child had been ill for about a
week and had been vomiting and exhibiting flu-like symptoms.
Erickson said that Tristen had been in his crib and that he
picked up Tristen and shook him to try to get him to respond.
Gingrich began cPr, but Tristen did not start breathing on
his own.
on the way to the hospital in kimball, the ambulance was
intercepted by Dr. James Platte, who took over the respiratory
care of Tristen while Gingrich continued cardiac compressions.
At the hospital, Platte intubated Tristen and his heart began
beating. Tristen had no spontaneous respirations, and his pupils
did not react to light, which indicated a lack of brain function.
Tristen was subsequently taken by helicopter to a hospital in
Denver, colorado.
Tristen arrived in Denver in “very critical condition.” Dr.
katherine Wells, a pediatrician who specializes in child abuse
and neglect, stated that Tristen was being entirely supported
by machines. Wells stated, to a reasonable degree of medi-
cal certainty, that the constellation of injuries sustained by
Tristen was not consistent with an accident. on December 11,
2008, after a series of examinations determined that Tristen
was brain dead, the decision was made to remove him from
life support.
An autopsy revealed that Tristen’s cause of death was blunt
trauma to the head and neck. Dr. Michael Arnall, a forensic
pathologist, stated that there were no external signs of bruising
or other injury to the back of Tristen’s head but that the inter-
nal examination showed two contusions to the middle of his
scalp and a 41⁄2-inch-long complex fracture to the back of the
skull. Arnall stated that injuries to Tristen’s neck muscles were
from severe flexion and extension of the neck. The muscles
were stretched sufficiently to tear the blood vessels and cause
hemorrhage. The neck injuries were consistent with a baby’s
head being shaken or moved back and forth violently. There
was evidence of extensive bleeding, including subarachnoid,
34 	281 NEBrASkA rEPorTS

subdural, and epidural hemorrhages on Tristen’s head. Arnall
opined that blunt trauma caused the complex skull fracture,
contusions to the scalp, subdural hematomas, injury to the
spinal column, and contusions on the back. He said the blunt
trauma came from more than one direction.
Erickson was the only adult present when Tristen stopped
breathing. Wittrock testified she left the house between 3:30
and 4 p.m. to pick up prescriptions for Tristen and get dinner.
Between 5 and 5:10 p.m., she sent Erickson a text message
asking him to give the children a snack because they had had
a light lunch and telling him she would not be home until
5:30 p.m. Erickson responded by text message. A short time
later, Erickson called Wittrock and told her something was
wrong with Tristen. Wittrock told Erickson to hang up and
call 911.
According to Wittrock, Erickson claimed that when he picked
up Tristen from his playpen, “his neck turned to the side like
he was having a seizure.” Erickson told a deputy sheriff that as
he picked up Tristen to change his diaper, Tristen had a “panic
attack or something and then he went limp.” Erickson tried to
get a response by shaking Tristen, rubbing him, and biting him,
but the child did not respond.
Erickson testified that as he approached the playpen, he
noticed vomit on Tristen’s pillow. Erickson started to pick up
Tristen, but he was not responsive. Erickson said he panicked
and tried to do a couple of chest compressions. Tristen did
not respond. Erickson shook Tristen, and when he still did not
respond, Erickson bit him on the chest. Erickson testified that
he panicked and ran out to his car with Tristen to try to drive
him to the hospital. The car’s windshield was frosted over
with ice, and Erickson did not think it was safe to drive with
poor visibility.
Erickson called Wittrock and told her something was wrong
with Tristen, and she told Erickson to call 911. As he ran back
into the house, Erickson dialed 911. The 911 operator gave
him instructions on cPr, and Gingrich arrived shortly there-
after. Erickson admitted to shaking Tristen “pretty violently”
and biting him, but claimed he was trying to see if Tristen
would respond.
STATE v. ErickSoN 	35
cite as 281 Neb. 31

A few weeks earlier, on the Saturday after Thanksgiving
2008, Erickson called Wittrock at work and told her that
Tristen had fallen and reportedly had a “knot” on the back of
his head. Wittrock said she found no lump on Tristen’s head
when she arrived home.
Around December 1, 2008, Tristen had trouble keeping
food down and Wittrock called the emergency room. She was
advised to give him Pedialyte and Benadryl. He had been
vomiting and had had diarrhea for about 2 weeks before the
December 9 incident.
Tristen was seen for his 15-month checkup on December 8,
2008, by Dr. Brandon Taylor. According to Taylor, Tristen was
developmentally “on track.” Taylor saw no evidence of any
kind of head injury or any bruising or abrasions. Wittrock dis-
cussed with Taylor the possibility of Tristen’s having an asthma
problem, because she was concerned about Tristen’s breathing.
He seemed “raspy,” and his lips were blue.
Following a jury trial, Erickson was found guilty of inten-
tional child abuse resulting in the death of Tristen, in violation
of Neb. rev. Stat. § 28-707 (reissue 2008). He was sentenced
to a term of 90 years to life in prison, with credit given for 313
days previously served.
ASSiGNMENTS oF Error
Erickson assigns as error the trial court’s failure to instruct
the jury on the lesser-included offense of manslaughter and its
denial of his motion to change venue. He also claims that his
sentence is excessive.
ANALYSiS
JuRy instRuctions
[6] Erickson argues that the trial court erred in failing to
instruct the jury on the lesser-included offense of manslaugh-
ter. To establish reversible error from a court’s refusal to give
a requested instruction, an appellant has the burden to show
that (1) the tendered instruction is a correct statement of the
law, (2) the tendered instruction is warranted by the evidence,
and (3) the appellant was prejudiced by the court’s refusal to
36 	281 NEBrASkA rEPorTS

give the tendered instruction. State v. Sinica, 277 Neb. 629, 764
N.W.2d 111 (2009).
[7,8] A court must instruct on a lesser-included offense if
(1) the elements of the lesser offense for which an instruc-
tion is requested are such that one cannot commit the greater
offense without simultaneously committing the lesser offense
and (2) the evidence produces a rational basis for acquitting the
defendant of the greater offense and convicting the defendant
of the lesser offense. Id. To determine whether one statutory
offense is a lesser-included offense of the greater, Nebraska
courts look to the elements of the crime and not to the facts of
the case. Id.
in the case at bar, the jury was instructed that it could return
one of three verdicts: guilty of intentional child abuse resulting
in the death of a minor child, guilty of negligent child abuse,
or not guilty. The jury instructions defined the elements of
intentional child abuse resulting in death as placing Tristen in
a situation that endangered his life or physical health “know-
ingly or intentionally, that is willfully, or purposely and not
accidentally or involuntarily” and that such conduct was the
proximate cause of Tristen’s death. The elements of the lesser-
included crime of negligent child abuse were defined as plac-
ing Tristen in a situation that endangered his life or physical
health negligently.
The jury was also given a step instruction. it was instructed
to first consider the crime of intentional child abuse resulting in
death. if it found that the State proved each element beyond a
reasonable doubt, then the jury was to end its deliberations. if
the jury found the State did not prove each element, then it was
to consider the elements of negligent child abuse.
Erickson objected to the instruction defining the elements of
intentional child abuse resulting in death and argued that the
trial court should also instruct upon the lesser-included offenses
of manslaughter and knowing infliction of child abuse resulting
in serious bodily injury. The objection was overruled.
Erickson claims that the trial court should have instructed
the jury that manslaughter is a lesser-included offense of inten-
tional child abuse. We agree. in Sinica, supra, we concluded
STATE v. ErickSoN 	37
cite as 281 Neb. 31

that manslaughter is a lesser-included offense of intentional
child abuse resulting in death and that the trial court erred
in failing to instruct the jury on the lesser-included offense.
However, we determined that the step instruction given in that
case did not prejudice the defendant.
in Sinica, supra, the jury was specifically instructed that if
it determined the State had proved each element of intentional
child abuse resulting in death beyond a reasonable doubt, it
must find the defendant guilty of that offense and proceed no
further. “When such a step instruction is given, we presume
that the jury followed the instruction and did not consider any
of the purported lesser-included offenses after finding that the
defendant was guilty of the charged offense.” Id. at 640, 764
N.W.2d at 119. Because the jury specifically found that the
defendant acted intentionally, it could not have found that he
committed negligent child abuse and acted without intent.
The case at bar is similar to Sinica, supra. The jury was
given a step instruction and was told to first consider the crime
of intentional child abuse resulting in death. if it found that the
State had proved each element beyond a reasonable doubt, it
was to end its deliberations.
[9] The trial court erred in refusing to give a manslaughter
instruction; however, the error was harmless. “Error in failing
to instruct the jury on a lesser-included offense is harmless
when the jury necessarily decides the factual questions posed
by the omitted instructions adversely to the defendant under
other properly given instructions.” Id. at 639, 764 N.W.2d
at 119.
Pursuant to the step instruction, the jury found that Erickson
knowingly and intentionally placed Tristen in a situation that
endangered his life and that such conduct was the proximate
cause of Tristen’s death. The jury then ended its deliberations.
The medical experts testified that Tristen’s injuries were
not accidental. Wells stated, to a reasonable degree of medical
certainty, that the constellation of injuries sustained by Tristen
was not consistent with an accident. The autopsy showed that
Tristen’s cause of death was blunt trauma to the head and neck.
He had two contusions to the middle of his scalp and a 41⁄2-
inch-long complex skull fracture. Arnall stated, to a reasonable
38 	281 NEBrASkA rEPorTS

degree of medical certainty, that the injuries to Tristen’s neck
muscles were consistent with a baby’s head being shaken or
moved back and forth violently. Tristen also sustained sub-
arachnoid, subdural, and epidural hemorrhages to the head.
Erickson was the only adult present when Tristen stopped
breathing. Erickson admitted that he shook Tristen “pretty vio-
lently” in an attempt to get a response. Wells opined that the
injuries sustained by Tristen were not those that any reasonable
person would have caused in trying to revive a baby. Tristen
had been seen by a physician the day before the incident, and
there were no indications of head injury or abrasions.
[10] The jury first considered the elements of intentional
child abuse resulting in death, and once it determined that all
elements had been proved, it ended its deliberations. As in
State v. Sinica, 277 Neb. 629, 764 N.W.2d 111 (2009), the step
instruction was not prejudicial even though it did not include
manslaughter. Before an error in the giving of instructions can
be considered as a ground for reversal of a conviction, it must
be considered prejudicial to the rights of the defendant. State v.
Welch, 275 Neb. 517, 747 N.W.2d 613 (2008).
The trial court’s failure to instruct the jury that manslaughter
is a lesser-included offense of intentional child abuse resulting
in death was error, but it was not prejudicial to Erickson. He is
not entitled to relief because of this error.
venue
Erickson argues that the trial court erred in denying his
motion to change venue for the trial. A motion for change of
venue is addressed to the discretion of the trial judge, whose
ruling will not be disturbed absent an abuse of discretion. State
v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010).
The record shows that voir dire was conducted with a pool
of 90 potential jury members. of the 90 potential jurors, 41
were excused for cause.
During voir dire, Erickson’s counsel made an oral motion for
a change of venue. He claimed that there were a “vast number
of people that have expressed an inability to decide this case
and to be impartial,” which indicated a likelihood that there
was “an undercurrent of animus and [bias] against” Erickson.
STATE v. ErickSoN 	39
cite as 281 Neb. 31

counsel conceded there had not been a great amount of pub-
licity about the case, but he asserted there had been a good deal
of discussion by word of mouth. The trial court took the matter
under advisement and reserved ruling until questioning of the
panel had been completed.
Erickson’s counsel renewed the motion for change of venue
at the conclusion of voir dire. The trial court reviewed the fac-
tors to be considered in moving a trial, as identified in State v.
Phelps, 241 Neb. 707, 490 N.W.2d 676 (1992). it then over-
ruled Erickson’s motion for change of venue. After 41 persons
had been excused for cause, 49 potential jurors remained.
Peremptory strikes were exercised, and a 12-member jury,
including 2 alternates, was seated.
Erickson does not challenge the participation of any particu-
lar juror. instead, he argues that in a small community with no
large media outlets, the residents are subject to “‘coffee shop
talk,’” including hearsay, rumor, innuendo, and gossip. See
brief for appellant at 9. He suggests that the majority of the
community had formed or expressed an opinion concerning
Erickson’s guilt, as reflected by the fact that a large percentage
of the jury panel was struck for cause.
[11] We have stated that under most circumstances, voir
dire examination provides the best opportunity to determine
whether a court should change venue. Schroeder, supra.
Due process does not require that a defendant be granted
a change of venue whenever there is a “‘reasonable likeli-
hood’” that prejudicial news prior to trial would prevent
a fair trial. rather, a change of venue is mandated when
a fair and impartial trial “cannot” be had in the county
where the offense was committed.
Id. at 211, 777 N.W.2d at 804, quoting State v. Bradley, 236
Neb. 371, 461 N.W.2d 524 (1990). See, also, Neb. rev. Stat.
§ 29-1301 (reissue 2008).
The motion for a change of venue was made orally during
voir dire. Erickson did not offer any evidence or affidavits in
support of the motion. This is similar to the factual situation
in State v. Hessler, 274 Neb. 478, 741 N.W.2d 406 (2007), in
which the defendant based his argument in favor of changing
venue on voir dire of potential jurors. There, the defendant
40 	281 NEBrASkA rEPorTS

argued that a large number of potential jurors had seen or
heard reports of the crime and had formed opinions regard-
ing his guilt. We determined that the defendant had not shown
a change of venue was necessary, because an impartial jury
was selected, and that he therefore failed to show he could not
receive a fair trial in the county in which the trial was held. We
found no abuse of discretion in the trial court’s denial of his
motion for change of venue.
[12] Erickson cites the factors that can be used to determine
whether a defendant has met the burden of showing that pre-
trial publicity has made it impossible to secure a fair trial and
impartial jury. The factors include:
(1) the nature of the publicity, (2) the degree to which
the publicity has circulated throughout the community,
(3) the degree to which the publicity circulated in areas
to which venue could be changed, (4) the length of time
between the dissemination of the publicity complained of
and the date of the trial, (5) the care exercised and ease
encountered in the selection of the jury, (6) the number
of challenges exercised during voir dire, (7) the severity
of the offenses charged, and (8) the size of the area from
which the venire was drawn.
State v. Strohl, 255 Neb. 918, 931-32, 587 N.W.2d 675,
685 (1999).
The first four factors concern publicity about a trial: its
nature, its circulation both in the community where the trial
is scheduled and in areas to which venue might be changed,
and the timespan between the publicity and the trial. Erickson
has provided no evidence to suggest that publicity required a
change of venue. He did not offer articles or news stories from
any media outlet to demonstrate the nature of pretrial publicity.
He did not provide any affidavits to support the need to move
the trial to another venue.
While adverse pretrial publicity can create a presumption
of prejudice in a community, making it difficult to believe
the jurors’ claims that they can be impartial, “‘juror expo-
sure to information about a state defendant’s prior convictions
or to news accounts of the crime with which he is charged
[does not] alone presumptively deprive[] the defendant of due
STATE v. ErickSoN 	41
cite as 281 Neb. 31

process.’” State v. Galindo, 278 Neb. 599, 637, 774 N.W.2d
190, 224 (2009), quoting Murphy v. Florida, 421 U.S. 794, 95
S. ct. 2031, 44 L. Ed. 2d 589 (1975). Nothing in the record
suggests that Erickson was deprived of due process by pre-
trial publicity.
Erickson argues that the last four factors from Strohl, supra,
weigh in favor of a change in venue: difficulty in seating a jury,
majority of panel struck for cause, serious nature of the case,
and the small size of the community. The record does not sup-
port a finding that the trial court had difficulty in seating the
jury or that a majority of the panel was struck for cause. Ninety
potential jurors were called and questioned as to their feelings
about the case; 41 were dismissed for cause. Additional voir
dire was conducted with 40 of the potential jurors. None of
those individuals expressed that they had formed an opinion
about the case. A number of the potential jurors had heard of
the case through a newspaper, “gossip,” or “hearsay,” but most
stated that they could be fair and make a decision based solely
on the evidence presented at trial.
“[T]he law does not require that a juror be totally ignorant
of the facts and issues involved; it is sufficient if the juror can
lay aside his or her impression or opinions and render a verdict
based upon the evidence.” State v. Rodriguez, 272 Neb. 930,
942, 726 N.W.2d 157, 170 (2007). The trial court was able to
seat a fair and impartial jury. Erickson did not present any evi-
dence to suggest otherwise.
This case involved the death of a child. During voir dire,
jurors were informed as to the subject of the trial and were
asked whether the serious nature of the charges affected their
opinion. Any prospective juror who indicated a concern about
the case because it involved the death of a child was removed
from the panel. This factor does not weigh in favor of a change
of venue.
The final factor from Strohl, supra, is the small size of
the community. Erickson offered no evidence concerning the
size of kimball or of any venue to which the trial could have
been moved.
[13] A trial court abuses its discretion in denying a motion to
change venue when a defendant establishes that local conditions
42 	281 NEBrASkA rEPorTS

and pretrial publicity make it impossible to secure a fair and
impartial jury. Galindo, supra. Erickson did not establish the
need for a change of venue, and the trial court did not abuse its
discretion in overruling his motion.
excessive sentence
Erickson asserts that the trial court abused its discretion in
imposing an excessive sentence. Erickson was convicted of
intentional child abuse resulting in death, a class iB felony
under § 28-707(6). He was sentenced to a minimum term of
90 years’ imprisonment and a maximum term of life in prison.
A class iB felony is punishable by a minimum of 20 years
in prison and a maximum of life in prison. Neb. rev. Stat.
§ 28-105 (reissue 2008).
[14,15] Where a sentence imposed within the statutory limits
is alleged on appeal to be excessive, the appellate court must
determine whether the 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. Alford, 278 Neb. 818, 774 N.W.2d 394
(2009). A sentence imposed within statutory limits will not
be disturbed on appeal absent an abuse of discretion by the
trial court. State v. Thompson, 278 Neb. 320, 770 N.W.2d 598
(2009). An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence. Id.
[16-19] 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. State v. Rung, 278 Neb. 855, 774 N.W.2d 621 (2009). 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 judgment and includes
the sentencing judge’s observation of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding the
STATE v. ErickSoN 	43
cite as 281 Neb. 31

defendant’s life. Id. Both the nature of the offense for which a
defendant is being sentenced and the defendant’s past criminal
record are appropriate considerations in sentencing. State v.
Epp, 278 Neb. 683, 773 N.W.2d 356 (2009).
Erickson was 24 years old at the time of the presentence
investigation. He had completed the 10th grade at kimball
High School. He and Wittrock had three children together,
including Tristen. All were under the age of 3. Erickson had
another child as the result of a short-term relationship, but he
had no contact with the child.
Erickson’s criminal history shows that as a juvenile, he was
charged with criminal mischief, unauthorized use of a motor
vehicle, and being an uncontrollable child. As an adult, he has
been charged with assault by mutual consent, minor in pos-
session of liquor on three occasions, motor vehicle theft, third
degree assault on two occasions, third degree domestic assault,
and possession of a controlled substance.
on a risk assessment tool, Erickson was found to be in the
high-risk range to reoffend. He has a history of using meth-
amphetamine, and when using the drug, he has anger control
problems. The assessment also indicated that Erickson is at
high risk to exhibit antisocial behaviors. He scored in the
problem-risk range for alcohol and in the maximum-risk range
for drugs, violence, antisocial behavior, aggressiveness, and
coping with stress. He also scored in the high-risk range to
assault an intimate partner.
The trial court considered a number of factors, including
Erickson’s age, mentality, educational and work history, and
cultural background. it also considered the nature and circum-
stances of the offense, the motivation for the offense, whether
the offense involved violence, and whether there was any
excuse or justification for the offense. it found Erickson’s prior
criminal and juvenile record troubling for a person his age.
He had been convicted of assaultive behavior both inside and
outside the home.
There is no evidence that the trial court abused its discretion
in sentencing Erickson. The sentence is within the statutory
limits and reflects the serious nature of the crime.
44 	281 NEBrASkA rEPorTS

coNcLUSioN
Erickson was not prejudiced by the trial court’s error in fail-
ing to instruct the jury that manslaughter is a lesser-included
offense of intentional child abuse resulting in death. The trial
court did not err in denying Erickson’s motion to change venue,
and his sentence is not excessive. Therefore, the judgment of
the trial court is affirmed.
affiRmed.
roBiNSoN v. DUSTroL, iNc. 	45
cite as 281 Neb. 45
chaRles f. Robinson, appellant, v. dustRol , inc.,
a foReign coRpoRation doing business
in nebRaska , appellee .
793 N.W.2d 338
Filed January 28, 2011. 	No. S-10-045.
1. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one conclu-
sion from the evidence, that is to say, when an issue should be decided as a matter
of law.
2. Motions for New Trial: Appeal and Error. A motion for new trial is addressed
to the discretion of the trial court, whose decision will be upheld in the absence
of an abuse of that discretion.
3. Jury Instructions: Appeal and Error. Whether a jury instruction is correct is a
question of law, which an appellate court independently decides.
4. Negligence: Proof. The burden of proving negligence is on the party alleging it,
and merely establishing that an accident happened does not prove negligence.
5. Negligence. one is not negligent simply by failing to anticipate the negligence
of another.
6. Trial: Jury Instructions: Appeal and Error. in order to appeal a jury instruc-
tion, an objection to the proposed instruction must be made at the trial level.
7. Appeal and Error. An issue not presented to or passed on by the trial court is not
appropriate for consideration on appeal.
Appeal from the District court for Saunders county: maRy
c. gilbRide, Judge. Affirmed.
Adam J. Sipple, of Johnson & Mock, for appellant.
Stephen G. olson ii and kristina J. kamler, of Engles,
ketcham, olson & keith, P.c., for appellee.