State v. Flores

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. FLORES
Cite as 321 Neb. 284
State of Nebraska, appellee, v.
Mariano Flores, appellant.
___ N.W.3d ___
Filed May 1, 2026. 	No. S-25-003.
1. Criminal Law: Convictions: Evidence: Appeal and Error. When
reviewing a criminal conviction for sufficiency of the evidence to
sustain the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
2. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
3. Judgments: Sentences: Words and Phrases: 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. An abuse of dis-
cretion 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.
4. Constitutional Law: Sentences: Appeal and Error. Whether a sen-
tence constitutes cruel and unusual punishment in violation of the
Eighth Amendment presents a question of law, which an appellate court
resolves independently of the lower court’s decision.
5. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant 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.
6. Jury Instructions: Appeal and Error. It is not error for a trial court to
refuse to give a party’s requested instruction where the substance of the
requested instruction was covered in the instructions given.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:38 AM CDT

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STATE v. FLORES
Cite as 321 Neb. 284
7. Jury Instructions. An instruction which is likely to confuse or mislead
the jury should not be given.
8. Criminal Law: Jury Instructions. Requiring the court to inform the
jury of all actions that do not constitute a crime would be impossible
and inefficient.
9. ____: ____. When there is an applicable instruction in the Nebraska Jury
Instructions, the court should usually give that instruction to the jury in
a criminal case.
10. 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.
11. Sentences. When imposing a sentence, the sentencing court is to con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (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.
12. ____. A sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a
subjective judgment that includes the sentencing judge’s observations
of the defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.
13. ____. A sentence should be tailored and based on factors that fit the
offender and not merely the crime.
14. Constitutional Law. The 14th Amendment to the U.S. Constitution
applies to the states the restrictions from the 8th Amendment.
15. Constitutional Law: Sentences. A sentencing court may, consistent
with the Eighth Amendment, impose an actual life-without-parole sen-
tence so long as the sentencing court retains discretion to impose a
lesser penalty.
16. Constitutional Law: Minors: Sentences. So long as the sentencing
judge has discretion to consider a juvenile offender’s youth and impose
a lesser sentence, there is no constitutional violation if a court imposes
what may amount to a de facto life sentence.
Appeal from the District Court for Douglas County: Todd
O. Engleman, Judge. Affirmed.
Kenneth Jacobs, of Hug and Jacobs, L.L.C., for appellant.

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Nebraska Supreme Court Advance Sheets
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STATE v. FLORES
Cite as 321 Neb. 284
Michael 	T. 	Hilgers, 	Attorney 	General, 	and 	Jacob 	M.
Waggoner for appellee.
Funke, 	C.J., 	Cassel, 	Stacy, 	Papik, 	Freudenberg,
Bergevin, and Vaughn, JJ.
Bergevin, J.
I. INTRODUCTION
A jury found Mariano Flores guilty of multiple felony
offenses, including murder in the first degree, a Class IA
felony 1; robbery, a Class II felony 2; and use of a deadly
weapon (firearm) to commit a felony, a Class IC felony. 3 The
district court sentenced Flores to a total term of 320 years’ to
life imprisonment. This appeal comes to us on direct review
due to Flores’ life sentence. 4 Flores challenges the sufficiency
of the evidence related to certain offenses. He also contends
that the district court erred by not giving a jury instruction he
requested and by imposing excessive sentences. We affirm.
II. BACKGROUND
This matter is a companion case to State v. White. 5 Flores
and Quan A. White were codefendants in the same jury trial.
The charges against Flores and White arose from a series of
events that transpired over several days in June 2021.
On the evening of June 13, 2021, Flores, White, and Nowa
Kawunda, all juveniles at the time, went to a public pool after
closing hours with several other people. Emmanuel Jacinto
Franco drove the group to the pool in a vehicle.
While the group was at the pool, Flores asked Kawunda to
take Flores’ phone and charge it in Jacinto Franco’s vehicle.
Subsequently, in Flores’ presence, White told Kawunda that
1 See Neb. Rev. Stat. § 28-303 (Cum. Supp. 2024).
2 Neb. Rev. Stat. § 28-324 (Reissue 2016).
3 Neb. Rev. Stat. § 28-1205(1)(c) (Reissue 2016).
4 See Neb. Rev. Stat. § 24-1106(1) (Cum. Supp. 2024).
5 State v. White, ante p. 1, 32 N.W.3d 256 (2026).

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Cite as 321 Neb. 284
“we’re going to rob him,” referring to Jacinto Franco. White
gave Kawunda a handgun. Kawunda took Flores’ phone and
concealed the handgun under his clothes.
Kawunda obtained Jacinto Franco’s permission to charge
Flores’ phone in the vehicle, and the two walked to the vehicle
in the pool’s parking lot. Jacinto Franco plugged Flores’ phone
into the charger inside the vehicle. Kawunda then took out
White’s handgun, pointed it at Jacinto Franco, and demanded
the keys to the vehicle. Jacinto Franco initially refused. In
response, Kawunda struck Jacinto Franco with the handgun
and forced him to start the vehicle.
After Jacinto Franco started the vehicle, Flores and White
climbed over the pool fence and got into the vehicle with
Kawunda. The three drove off in the vehicle, leaving Jacinto
Franco behind.
Over the course of the next 3 days, Flores, White, and
Kawunda acquired additional firearms. On June 16, 2021, the
group drove the vehicle to a bar. They intended to shoot at
people affiliated with the Crips gang who were gathered at the
bar. The group drove past the bar and discharged their firearms
into a crowd of people standing outside. One person was killed,
and another was seriously injured.
Flores, White, and Kawunda then drove the vehicle to a
housing complex to “look[] for Crips.” They identified a per-
son in the parking lot whom they believed to be affiliated with
the Crips gang. They parked, exited the vehicle, and proceeded
to discharge their firearms at the individual. The individual
and the occupant of a nearby apartment suffered minor inju-
ries. Flores, White, and Kawunda left the housing complex in
the vehicle.
The group stole another vehicle on the morning of June 17,
2021. The owner of the stolen vehicle assisted law enforcement
by remotely tracking it, and law enforcement apprehended
Flores, White, and Kawunda later that day.

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STATE v. FLORES
Cite as 321 Neb. 284
1. Prosecution
A joined jury trial was held for Flores and White. Flores
was charged by a third amended information with robbery, a
Class II felony 6; murder in the first degree, a Class IA felony 7;
assault in the first degree, a Class II felony 8; two counts of
discharging a firearm at an inhabited house, occupied building,
or occupied motor vehicle, a Class ID felony 9; theft by receiv-
ing stolen property, $5,000 or more, a Class IIA felony 10; and
five counts of use of a deadly weapon (firearm) to commit a
felony, a Class IC felony. 11
At trial, the State called 37 witnesses who testified about the
events recounted above. The State also adduced evidence about
the law enforcement investigation that followed, including the
results of DNA testing and firearms analysis. Neither Flores
nor White testified in their defense.
During trial, the State argued that Flores could be guilty of
robbery and the related use of a firearm to commit a felony
under an aiding and abetting theory. At the jury instruction
conference, Flores objected to proposed instruction No. 15,
which followed the language for aiding and abetting a crime in
the Nebraska Jury Instructions. 12 Instruction No. 15 provided:
The Defendant, . . . Flores, can be guilty of a crime
even though he personally did not commit every act
involved in the crime so long as he aided someone else
to commit it. The Defendant, . . . Flores, aided someone
else if:
6 See § 28-324.
7 See § 28-303.
8 See Neb. Rev. Stat. § 28-308 (Reissue 2016).
9 See Neb. Rev. Stat. § 28-1212.02 (Reissue 2016).
10 See Neb. Rev. Stat. §§ 28-517 and 28-518(1) (Reissue 2016).
11 See § 28-1205(1)(c).
12 See NJI2d Crim. 3.8.

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STATE v. FLORES
Cite as 321 Neb. 284
(1) 	The 	Defendant 	intentionally 	encouraged 	or
intentionally helped another person to commit the crime;
and
(2) The Defendant intended that the crime be committed;
or the Defendant knew that the other person intended to
commit the crime; and
(3) The crime in fact was committed by that other
person.
Flores submitted a proposed jury instruction, which added the
following sentence to the end of instruction No. 15: “Evidence
of mere presence, acquiescence, or silence is not enough to
sustain the State’s burden of proving the Defendant’s guilt.”
The district court overruled Flores’ objection and did not give
his proposed instruction to the jury.
The jury found Flores guilty on all counts. The district court
accepted the jury’s verdicts, ordered a presentence investiga-
tion report (PSR), and scheduled the matter for sentencing.
2. Sentencing
At the outset of the sentencing hearing, the district court
noted that it had reviewed the PSR, which contained a foren-
sic evaluation of Flores. The forensic evaluation included
interviews with Flores’ family and the results of various
psychological tests of Flores, along with a review of rele-
vant scientific research and literature. The forensic evaluation
also addressed Flores’ prenatal history, developmental his-
tory, medical history, substance abuse treatment history, social
history, and psychological history. The evaluation discussed
the circumstances of the offenses, Flores’ family and home
environment, and his age and characteristics, as well as his
prospects for rehabilitation.
During the sentencing hearing, Flores’ trial counsel stressed
that Flores was 15 years old at the time of the crimes, had
“done quite a bit of reflection on what lead [sic] him to be
incarcerated,” and asked the Court to consider imposing a
sentence that would not amount to a de facto life sentence.

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Cite as 321 Neb. 284
Trial counsel emphasized the forensic evaluation showed that
Flores had an unstable home life and that he associated
with “the wrong group of individuals” before his incarcera-
tion. Trial counsel also noted that the forensic evaluation
cited studies concluding most people who are violent in their
adolescence do not persist in that behavior and that Flores
was amenable to programming. As an example, trial counsel
explained that Flores was awarded a diploma while awaiting
trial at a youth center.
The State disagreed that Flores was amenable to rehabilita-
tion. The State pointed the court to Flores’ lack of coopera-
tion with probation in the preparation of the PSR. The State
referenced Flores’ refusal to admit that he was involved with
a gang, his lack of regret for his choice in peers, his lack
of interest in seeking rehabilitation, and his failure to take
responsibility or accountability for his actions. The State also
pointed to the serious nature of the offenses and emphasized
that Flores’ actions were not during an impulsive few minutes
but over the course of several days.
The district court again stated that it had reviewed the PSR
and that it had considered the sentencing factors laid out in
Neb. Rev. Stat. § 29-2260 (Reissue 2016), as well as Flores’
age, mentality, education, experience, social and cultural back-
ground, and past criminal record or record of law abiding con-
duct; the motivation for the offenses and nature of the offenses;
and the amount of violence, if any, involved in the commission
of the offenses. The court also noted that it had read through
the forensic evaluation “a couple of times.”
Before imposing its sentences, the district court stated,
“Going th[r]ough these[,] these are some of the most brutal
crimes perpetrated on people. I think it’s important to remem-
ber when I impose a sentence[,] which is going to be the same
sentence that I gave to [White].”
The district court imposed the same sentences that it had
previously given White, a total term of 320 years’ to life

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STATE v. FLORES
Cite as 321 Neb. 284
imprisonment. The court ordered the sentences to run consecu-
tively and gave Flores credit for time served.
Each individual sentence imposed was within statutory lim-
its. The court sentenced Flores to a period of 30 to 50 years’
imprisonment for robbery; 40 years’ to life imprisonment for
murder in the first degree; 30 to 50 years’ imprisonment
for assault in the first degree; 30 to 50 years’ imprisonment for
each count of discharging a firearm at an inhabited house,
occupied building, or occupied motor vehicle; 10 to 20 years’
imprisonment for theft by receiving stolen property, $5,000 or
more; and 30 to 50 years’ imprisonment for each count of use
of a firearm to commit a felony.
Flores filed a timely appeal.
III. ASSIGNMENTS OF ERROR
Flores assigns, restated, that the district court erred by (1)
accepting the jury’s verdict when the evidence was insufficient
to support his convictions for robbery and use of a firearm
to commit a felony, (2) not adopting Flores’ proposed jury
instruction on aiding and abetting, and (3) abusing its discre-
tion when it imposed excessive sentences on Flores that consti-
tuted cruel and unusual punishment, in violation of the Eighth
Amendment to the U.S. Constitution.
IV. STANDARD OF REVIEW
[1] When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question
for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt. 13
[2] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. 14
13 State v. Rupp, 320 Neb. 502, 28 N.W.3d 74 (2025).
14 State v. Logan, 320 Neb. 554, 28 N.W.3d 510 (2025).

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STATE v. FLORES
Cite as 321 Neb. 284
[3] An appellate court will not disturb a sentence imposed
within the statutory limits absent an abuse of discretion by the
trial court. 15 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. 16
[4] Whether a sentence constitutes cruel and unusual punish-
ment in violation of the Eighth Amendment presents a question
of law, which an appellate court resolves independently of the
lower court’s decision. 17
V. ANALYSIS
First, we address Flores’ assignment of error concerning the
sufficiency of the evidence relating to his robbery and use of
a firearm to commit a felony convictions. We then address the
district court’s refusal to adopt Flores’ proposed jury instruction
on aiding and abetting. Finally, we address Flores’ assignment
that the district court abused its discretion in imposing exces-
sive sentences that amounted to cruel and unusual punishment.
1. Sufficiency of Evidence
Flores first contends that the evidence at trial was insuffi-
cient to convict him of robbery and use of a firearm to commit
that felony. We disagree.
The question before us is whether, after viewing the evi-
dence in the light most favorable to the State, any rational trier
of fact could have found the essential elements of these two
crimes beyond a reasonable doubt. 18
Flores points to several facts to show that the evidence was
insufficient to sustain his convictions for robbery and use of
a firearm to commit a felony: namely, that White, not Flores,
mentioned robbing Jacinto Franco to Kawunda and provided
15 State v. Sutton, 319 Neb. 581, 24 N.W.3d 43 (2025).
16 Id.
17 State v. Ezell, 314 Neb. 825, 993 N.W.2d 449 (2023).
18 See State v. Rupp, supra note 13.

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STATE v. FLORES
Cite as 321 Neb. 284
the handgun used in the robbery; that Kawunda, not Flores,
robbed Jacinto Franco of the vehicle; that Flores did not use
the handgun in the robbery; and that Flores did not enter
Jacinto Franco’s vehicle until after it had been stolen. Flores
also argues that the evidence fails to establish that he knew of
or saw the handgun at the time of the robbery. Flores argues
that the State did not prove the elements of robbery in his case
and that, as a result, he cannot be guilty of use of a firearm to
commit the robbery.
The State contends that the evidence was sufficient to con-
vict Flores of both offenses under an aiding and abetting theory.
The State points to Neb. Rev. Stat. § 28-206 (Reissue 2016),
which provides that “[a] person who aids, abets, procures, or
causes another to commit any offense may be prosecuted and
punished as if he [or she] were the principal offender.” We
have recognized that this statute abolishes the common-law
distinction between a principal and an aider and abettor. 19
The State argues that the evidence shows that “Flores,
White, and Kawunda all discussed stealing Jacinto[ ]Franco’s
vehicle.” 20 The State notes that during this discussion, Flores
gave Kawunda his phone, “which Kawunda used as a ruse
. . . for Kawunda to complete the robbery,” 21 and that White
handed Kawunda a handgun in Flores’ presence. Additionally,
the State notes that Flores and White, who were still within
the pool’s fence at the time Kawunda got the vehicle started,
“hopped” the fence to get in the vehicle and drove off. 22
It is immaterial whether Flores personally robbed Jacinto
Franco, so long as he aided or abetted Kawunda in com-
mitting the robbery. After viewing the evidence in the light
most favorable to the State, we determine that any rational
trier of fact could have found that Flores aided Kawunda by
19 State v. Devers, 313 Neb. 866, 986 N.W.2d 747 (2023).
20 Brief for appellee at 20.
21 Id.
22 Id. at 9.

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Cite as 321 Neb. 284
intentionally encouraging or intentionally helping Kawunda to
commit the crimes of robbery and use of a firearm to commit
a felony, and by intending that the crimes be committed or by
knowing that Kawunda intended to commit the crimes.
Flores’ convictions for robbery and use of a firearm to com-
mit a felony are supported by sufficient evidence.
2. Jury Instruction
Flores contends that the district court erred by not includ-
ing his proposed language concerning “mere presence” in jury
instruction No. 15. We disagree.
[5] 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. 23
Flores contends his proposed instruction was a correct
statement of the law based on this court’s opinion in State v.
Ramsay, 24 wherein we stated that evidence of mere presence,
acquiescence, or silence is not enough to sustain the State’s
burden of proving guilt under an aiding and abetting theory.
Flores also contends that his tendered instruction was war-
ranted by the evidence because Kawunda took the vehicle
and White provided Kawunda the firearm, while Flores did
neither. Lastly, Flores asserts that the district court’s refusal
to give his proposed jury instruction prejudiced him because
he was unable to argue that his mere presence in the vehicle
before and after the robbery was insufficient to convict him
of the robbery.
The 	State 	argues 	that 	jury 	instruction 	No. 	15 	follows
NJI2d Crim. 3.8, which adequately addresses Flores’ con-
cerns. Additionally, the State argues that Flores’ argument is
23 State v. Logan, supra note 14.
24 State v. Ramsay, 257 Neb. 430, 598 N.W.2d 51 (1999).

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comparable to an argument raised in State v. Haynie, 25 which
we rejected.
[6-8] We agree with the State that Flores’ argument is nearly
identical to an argument we rejected in Haynie. In Haynie, the
appellant proposed a jury instruction that would have added
language concerning “‘mere presence’” to a jury instruction
that was based on NJI2d Crim. 3.8. 26 We noted that it is not
error for a trial court to refuse to give a party’s requested
instruction where the substance of the requested instruction
was covered in the instructions given. 27 We also noted that
a “‘mere presence’” instruction would have confused and
misled the jury because “‘it is impossible for jury instruc-
tions to include everything that does not constitute aiding and
abetting.’” 28 An instruction which is likely to confuse or mis-
lead the jury should not be given. 29 Further, requiring the court
to inform the jury of all actions that do not constitute a crime
would be impossible and inefficient. 30
Although we have used Flores’ proposed language about
“mere presence” in Ramsay and related cases, we use that lan-
guage when summarizing the law as to aiding and abetting. 31
However, we have not suggested that this language should be
included in jury instructions. 32
[9] In this case, the district court’s jury instruction fol-
lowed the language of the NJI2d Crim 3.8 for aiding and abet-
ting a crime. When there is an applicable instruction in the
Nebraska Jury Instructions, the court should usually give that
25 State v. Haynie, 317 Neb. 371, 9 N.W.3d 915 (2024).
26 See id. at 387, 9 N.W.3d at 926.
27 State v. Haynie, supra note 25.
28 Id. at 387, 9 N.W.2d at 926 (quoting State v. Glantz, 251 Neb. 947, 560
N.W.2d 783 (1997)).
29 See Haynie, supra note 25.
30 Glantz, supra note 28.
31 See, Haynie, supra note 25; Ramsay, supra note 24.
32 See id.

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instruction to the jury in a criminal case. 33 Because Flores’
additional proposed language was likely to confuse or mislead
the jury, he was not prejudiced by the court’s refusal to give
the instruction.
The district court did not err in refusing to give Flores’ pro-
posed jury instruction.
3. Imposed Sentences
Flores next contends that the district court abused its discre-
tion by imposing excessive sentences that constituted cruel and
unusual punishment under the Eighth Amendment to the U.S.
Constitution. We disagree.
(a) Excessive Sentences
[10] The sentences imposed by the district court for each
conviction were within the respective statutory limits. 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 consider-
ing and applying the relevant factors, as well as any applicable
legal principles in determining the sentence to be imposed. 34
[11] When imposing a sentence, the sentencing court is
to consider the defendant’s (1) age, (2) mentality, (3) educa-
tion 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 com-
mission of the crime. 35
[12,13] A sentencing court is not limited to any mathemati-
cally applied set of factors, but the appropriateness of the sen-
tence is necessarily a subjective judgment that includes the
sentencing judge’s observations of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding
33 Id.
34 See State v. Ezell, supra note 17.
35 Id.

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the defendant’s life. 36 A sentence should be tailored and based
on factors that fit the offender and not merely the crime. 37
Flores was convicted of a Class IA felony for the offense
of murder in the first degree, and he was under the age of 18
when he committed that offense. Thus, the district court was
obligated to consider the mitigating factors listed in Neb. Rev.
Stat. § 28-105.02(2) (Reissue 2016), which section provides, in
relevant part:
In determining the sentence of a convicted person [who
was under the age of 18 at the time of the offense],
the court shall consider mitigating factors which led to
the commission of the offense. The convicted person may
submit mitigating factors to the court, including, but not
limited to:
(a) The convicted person’s age at the time of the
offense;
(b) The impetuosity of the convicted person;
(c) The convicted person’s family and community
environment;
(d) The convicted person’s ability to appreciate the
risks and consequences of the conduct;
(e) The convicted person’s intellectual capacity; and
(f) The outcome of a comprehensive mental health
evaluation of the convicted person conducted by an
adolescent mental health professional licensed in this
state. The evaluation shall include, but not be limited to,
interviews with the convicted person’s family in order
to learn about the convicted person’s prenatal history,
developmental history, medical history, substance abuse
treatment history, if any, social history, and psychological
history.
Flores argues that the district court did not make an individ-
ualized sentencing decision as required by section § 28-105.02
36 State v. Jones, 318 Neb. 840, 19 N.W.3d 499 (2025).
37 State v. Ezell, supra note 17.

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because it stated on the record, “I think it’s important to
remember when I impose a sentence[,] which is going to be the
same sentence that I gave to [White].” The State argues that
the factors listed under § 28-105.02(2) were included in the
forensic evaluation of Flores, which the district court received
and stated it considered.
We recognize that the district court referenced White’s sen-
tences at Flores’ sentencing hearing. But the fact that the court
imposed the same sentences on Flores and White does not, by
itself, establish that the court did not make an individualized
sentencing decision with regard to Flores.
The record refutes Flores’ assertion that his sentences were
excessive. The district court stated that it reviewed the PSR
and the sentencing factors set forth in § 29-2260, as well as
Flores’ age, mentality, education, experience, social and cul-
tural background, and past criminal record or record of law
abiding conduct; the motivation for the offenses and nature of
the offenses; and the amount of violence, if any, involved in
the commission of the offenses. Although the district court did
not expressly mention § 28-105.02, all of the statutory mitigat-
ing factors were included in the forensic evaluation that Flores
provided the court, which the court stated it considered.
The district court did not abuse its discretion in sentenc-
ing Flores.
(b) Cruel and Unusual Punishment
Flores also contends that the district court’s sentences vio-
late the prohibition against cruel and unusual punishment
in the Eighth Amendment to the U.S. Constitution because,
despite being to incarceration for a term of years to life
imprisonment, they amount to a de facto life sentence. Flores
acknowledges that this court has previously heard similar
arguments and rejected the same, 38 but argues that we should
38 See, e.g., State v. Ramirez, 314 Neb. 419, 990 N.W.2d 550 (2023); State
v. Jones, 297 Neb. 557, 900 N.W.2d 757 (2017); State v. Cardeilhac, 293
Neb. 200, 876 N.W.2d 876 (2016).

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rule differently in his case because his aggregate sentence is
longer than those we have previously affirmed. 39
[14] The Eighth Amendment to the U.S. Constitution pro-
vides: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.”
The 14th Amendment applies those restrictions to the states. 40
Article I, § 9, of the Nebraska Constitution uses identical lan-
guage to the cruel and unusual punishment clause in the Eighth
Amendment to the U.S. Constitution.
[15,16] We have recognized that a sentencing court may,
consistent with the Eighth Amendment, impose an actual
life-without-parole sentence so long as the sentencing court
retains discretion to impose a lesser penalty. 41 In State v.
Dejaynes‑Beaman, 42 we concluded that so long as the sen-
tencing judge has discretion to consider a juvenile offender’s
youth and impose a lesser sentence, there is no constitutional
violation if a court imposes what may amount to a de facto
life sentence.
We are unpersuaded by Flores’ argument that his sentences
violate the Eighth Amendment. Here, the district court had the
discretion to impose a lesser penalty than life imprisonment
without the possibility of parole for each individual offense
of which Flores was convicted. While Flores’ total sentence
may be a de facto life sentence, it does not constitute cruel and
unusual punishment.
39 See, State v. Dejaynes‑Beaman, 317 Neb. 131, 8 N.W.3d 779 (2024)
(juvenile defendant sentenced to term of 105 years’ to life imprisonment);
Ramirez, supra note 38 (defendant, who was juvenile at time of offense,
was resentenced to term of 128 to 180 years’ imprisonment); Jones, supra
note 38 (defendant, who was juvenile at time of offense, was resentenced
to 80 years’ to life imprisonment); Cardeilhac, supra note 38 (juvenile
defendant sentenced to 60 years’ to life imprisonment).
40 State v. Trail, 312 Neb. 843, 981 N.W.2d 269 (2022).
41 State v. Dejaynes‑Beaman, supra note 39.
42 Id.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. FLORES
Cite as 321 Neb. 284
The sentence imposed by the district court does not violate
the Eighth Amendment to the U.S. Constitution.
VI. CONCLUSION
We conclude that sufficient evidence supports Flores’ con-
victions for robbery and use of a firearm to commit a felony
and that the district court did not err in refusing to adopt
Flores’ proposed jury instruction on aiding and abetting or in
sentencing Flores. Accordingly, we affirm the judgment and
sentences of the district court.
Affirmed.