Opinion
No. 39152.
Filed January 4, 1974.
Appeal from the District Court for Douglas County: JOHN E. MURPHY, Judge. Affirmed as modified.
Walter J. Matejka, for appellant.
Herbert M. Fitle, Gary P. Bucchino, and Richard J. Epstein, for appellee.
Heard before WHITE, C. J., SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.
Defendant appeals her conviction of violating ordinance No. 25.133.020 of the city of Omaha. We affirm.
This is a companion case to State v. Brown, No. 39150, ante p. 61, 213 N.W.2d 712. In this case, however, the officer did not see the performance of the act. Rather, he described the position of the parties and the state of undress which suggested an interruption of the act. In any event, the evidence clearly indicated unlawful conduct within the provisions of the ordinance.
Defendant has raised the same three assignments of error discussed in State v. Brown, supra. What we said there is equally applicable herein as to the first two assignments of error.
Defendant's third assignment of error is that the sentence imposed on her was excessive. Mary Rose Brown was sentenced to a term of 6 months in the Douglas county jail, whereas defendant Tracy Pittman was sentenced to a term of 6 months in the Penal Complex. We see no reason for the different treatment of the two defendants and modify the sentence of the defendant Tracy Pittman to imprisonment for a period of 6 months in the Douglas county jail.
The judgment is affirmed as modified.
AFFIRMED AS MODIFIED.