State v. Kilgore , 30 Neb. Ct. App. 273 ( 2021 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/02/2021 08:08 AM CDT
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. KILGORE
Cite as 30 Neb. App. 273State of Nebraska, appellee, v.
Marcus A. Kilgore, appellant.
___ N.W.2d ___
Filed October 19, 2021. No. A-20-886.
1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
case from the county court, the district court acts as an intermediate
court of appeals, and its review is limited to an examination of the
record for error or abuse of discretion.
2. Courts: Appeal and Error. Both the district court and a higher appel-
late court generally review appeals from the county court for error
appearing on the record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Criminal Law: Courts: Appeal and Error. When deciding appeals
from criminal convictions in county court, an appellate court applies the
same standards of review that it applies to decide appeals from criminal
convictions in district court.
5. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, an appellate
court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for the finder
of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favor-
ably to the State, is sufficient to support the conviction.
6. Criminal Law: Parent and Child. Neb. Rev. Stat. § 28-1413(1)
(Reissue 2016) codifies the common-law defense against criminal liabil-
ity for a parent’s use of force in, among other circumstances, punishing
his or her child’s misbehavior.
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. KILGORE
Cite as 30 Neb. App. 2737. ____: ____. At common law, a parent, or one standing in the relation
of parent, was not liable either civilly or criminally for moderately and
reasonably correcting a child, but it was otherwise if the correction was
immoderate and unreasonable.
8. ____: ____. The question of whether a parent’s use of physical force
to discipline his or her child was protected under Neb. Rev. Stat.
§ 28-1413(1) (Reissue 2016) presents a question of fact for the fact
finder.
9. Criminal Law: Evidence: Appeal and Error. In reviewing a suffi-
ciency of the evidence claim, 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.
Appeal from the District Court for Douglas County, Duane
C. Dougherty, Judge, on appeal thereto from the County Court
for Douglas County, Thomas K. Harmon, Judge. Judgment of
District Court affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Brian D. Craig for appellant.
Matthew Kuhse, Omaha City Prosecutor, and Kevin J. Slimp
for appellee.
Riedmann, Bishop, and Arterburn, Judges.
Bishop, Judge.
INTRODUCTION
Marcus A. Kilgore appeals from an order of the Douglas
County District Court affirming his conviction and sentence
in the county court for Douglas County for caretaker neglect
in violation of the Omaha Municipal Code. On appeal to this
court, Kilgore claims that the evidence was insufficient to sup-
port his conviction. We affirm.
BACKGROUND
On August 28, 2019, Kilgore’s 9-year-old daughter went
to her school counselor expressing that she was feeling pain
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. KILGORE
Cite as 30 Neb. App. 273from her lower back. She reported that Kilgore had spanked
her and her 12-year-old brother the previous day with a belt.
When the children returned home from school that previous
day, Kilgore instructed them to clean their rooms and finish
other chores around the house. Kilgore’s son testified that
Kilgore set a time limit of about 11⁄2 hours for the two chil-
dren to finish their chores. When the chores were not done
on time because they were “messing around,” Kilgore warned
his children that he would spank them if they did not finish
their chores quickly enough. When the chores were still not
completed after “multiple warnings,” Kilgore proceeded to
spank both children with a belt. Kilgore’s daughter recalled
that Kilgore spanked her “[t]hree or four” times with the belt,
“but one lash went . . . right above” her backside and struck her
lower back instead. That strike left a red “healing welt” on her
lower back, and she stated that it began hurting the next day
before she went to the school counselor. She described that the
spot where she was hit on her back did not hurt “very bad, but
it hurt.” The counselor called the Omaha Police Department.
Officers spoke with Kilgore’s daughter and photographed the
mark left on her lower back by the belt, and these photographs
are included as an exhibit in the record. During her testimony,
Kilgore’s daughter affirmed that the welt faded at some point
after she reported to the school counselor.
On September 30, 2019, the State filed a criminal complaint
in the county court charging Kilgore with one count of care-
taker neglect, in violation of Omaha Mun. Code, ch. 20, art.
IV, § 20-97 (2004), and one count of disorderly conduct, in
violation of Omaha Mun. Code, ch. 20, art. III, § 20-42 (1980),
both alleged to have occurred on August 27. Following a bench
trial held on January 28, 2020, the county court found Kilgore
guilty on the charge of caretaker neglect and not guilty on the
charge of disorderly conduct. At a sentencing hearing held on
May 28, the court sentenced Kilgore to 21 days in jail.
Kilgore appealed his conviction and sentence to the district
court. A statement of errors was filed with the district court
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Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. KILGORE
Cite as 30 Neb. App. 273on June 26, 2020, alleging that (1) the evidence was insuf-
ficient to sustain his conviction, (2) the county court erred
in “admitting evidence of character . . . or habit [regarding
Kilgore’s prior act of using a belt for disciplinary purposes]
when the State failed to properly file a motion in limine seek-
ing to introduce such evidence,” (3) the county court erred in
“admitting [the same] evidence of habit under Neb. Rev. Stat.
§ 27-406 [(Reissue 2016)] in place of character evidence prof-
fered by the State under Neb. Rev. Stat. § 27-404 [(Reissue
2016)],” (4) the county court erred in “admitting [the same]
evidence of character or habit because its probative value was
substantially outweighed by the potential for unfair prejudice,”
and (5) the county court erred in holding that “the only force
that can be used by a parent for corporal punishment is spank-
ing by hand and not by a physical instrument.”
In the order entered on November 12, 2020, the district court
found that the county court abused its discretion in admitting
testimony by an Omaha police officer regarding Kilgore’s
specific prior act of using a belt to discipline his children. The
district court nonetheless affirmed Kilgore’s conviction and
sentence, concluding that “there was sufficient independent
evidence to support the [county court’s] finding of guilt, with-
out including the evidence wrongfully admitted.”
Kilgore appeals from the district court’s order.
ASSIGNMENT OF ERROR
Kilgore claims the district court erred in affirming the
county court’s finding of guilt, because there was insufficient
evidence to prove beyond a reasonable doubt that he was guilty
of caretaker neglect.
STANDARD OF REVIEW
[1-4] In an appeal of a criminal case from the county court,
the district court acts as an intermediate court of appeals, and
its review is limited to an examination of the record for error
or abuse of discretion. State v. Collins, 307 Neb. 581, 950
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STATE v. KILGORE
Cite as 30 Neb. App. 273N.W.2d 89 (2020). Both the district court and a higher appel-
late court generally review appeals from the county court for
error appearing on the record. Id. When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. Id. When deciding appeals from criminal convic-
tions in county court, we apply the same standards of review
that we apply to decide appeals from criminal convictions in
district court. Id.[5] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction. State v. Price, 306 Neb. 38,
944 N.W.2d 279 (2020).
ANALYSIS
Kilgore was convicted of caretaker neglect under § 20-97
of the Omaha Municipal Code. A copy of this ordinance is
included as part of the record before this court. As relevant
to the facts of this appeal, this ordinance provides in part that
“[a] person commits caretaker neglect if he or she negligently
causes or permits [a] minor child to be placed in a situation
that endangers his or her life or physical or mental health” or
“to be cruelly confined or cruelly punished.”
[6-8] Kilgore claims on appeal that his conduct could not
satisfy the elements of caretaker neglect, and he further argues
that his use of a belt to punish his children falls within the
protection afforded to parents under Neb. Rev. Stat. § 28-1413- 278 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
STATE v. KILGORE
Cite as 30 Neb. App. 273(Reissue 2016) to use force in disciplining their minor chil-
dren. Section 28-1413(1) provides that the use of force upon or
toward the person of another is justifiable if
[T]he actor is the parent or guardian or other person simi-
larly responsible for the general care and supervision of
a minor or a person acting at the request of such parent,
guardian, or other responsible person and:
(a) Such force is used for the purpose of safeguarding
or promoting the welfare of the minor, including the pre-
vention or punishment of his or her misconduct; and
(b) Such force is not designed to cause or known to
create a substantial risk of causing death, serious bodily
harm, disfigurement, extreme pain or mental distress, or
gross degradation.
Section 28-1413(1) codifies the common-law defense against
criminal liability for a parent’s use of force in, among other
circumstances, punishing his or her child’s misbehavior. See
Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919
N.W.2d 841 (2018). At common law, a parent, or one stand-
ing in the relation of parent, was not liable either civilly or
criminally for moderately and reasonably correcting a child,
but it was otherwise if the correction was immoderate and
unreasonable. Id. See, also, State v. Sinica, 220 Neb. 792, 372
N.W.2d 445 (1985) (observing that cruel punishment, as con-
templated by Neb. Rev. Stat. § 27-707(1) (Cum. Supp. 1984),
which codified elements of child abuse, is distinct from and
does not include reasonable disciplinary measures). The ques-
tion of whether such discipline was reasonable, and therefore
protected under § 28-1413(1), presents a question of fact for
the fact finder. See State v. Miner, 216 Neb. 309, 343 N.W.2d
899 (1984).
Kilgore claims that his conduct in disciplining his daughter
with a belt “did not place her in danger of her life, physical
health, or mental health,” because the extent of her injury did
not rise to such a level of danger. Brief for appellant at 8. He
further argues that his conduct was “readily distinguishable
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STATE v. KILGORE
Cite as 30 Neb. App. 273from cruel punishment,” given the disciplinary context of his
actions, because his daughter’s “testimony demonstrates that
she understood that she misbehaved and that her misbehavior
[was] why she was punished.” Id. at 9. He also notes that the
welt left on her lower back “later disappeared” and that her
testimony further indicated that “it did not hurt much.” Id.
[9] As we have set forth previously, this court, in reviewing
the sufficiency of the evidence, does not resolve conflicts in
the evidence, pass on the credibility of witnesses, or reweigh
the evidence; such matters are for the finder of fact. See State
v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020). The relevant
question for this 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. See State v. Figures, 308 Neb. 801,
957 N.W.2d 161 (2021).
The testimony of both children indicated that they were each
struck multiple times by Kilgore with a belt. The daughter tes-
tified that, of the “[t]hree or four” strikes, one lash hit her on
the lower back and left a red mark that began to cause her pain
the following day. She described this pain as “not very bad,
but it hurt.” She also testified that before she or her brother
would be spanked, there was generally a process of escalating
punishments for misbehavior, stating that their parents would
first “usually talk to [them]” and then “ground [them] from
[privileges] like . . . the television or playing a video game”
if they continued to misbehave. Kilgore’s son testified that the
day he and his sister were spanked, Kilgore only gave them
warnings to finish their chores before proceeding to spank
them both with a belt. Both children testified that they were not
afraid of Kilgore before or after this incident, and Kilgore’s son
indicated that this was not the only time in 2019 that he or his
sister was spanked with a belt.
The specific facts of this case indicate that Kilgore’s daugh-
ter was struck on her back with a belt, leaving a red welt
and pain sufficient to cause her to report the incident to her
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STATE v. KILGORE
Cite as 30 Neb. App. 273school counselor the following day. Consequently, the evidence
was sufficient for a rational trier of fact to find that Kilgore’s
actions negligently placed his daughter in a situation that
endangered her physical or mental health. While use of force
as punishment for a child’s misconduct may be protected under
§ 28-1413(1) as Kilgore argues, a rational fact finder, based
on the evidence of Kilgore’s daughter’s injury, could find that
Kilgore’s use of a belt to discipline his daughter was not rea-
sonable or moderate and carried with it a substantial risk of
causing extreme pain or mental distress. A fact finder could
thus conclude that the type of force used here did not qualify
for protection under § 28-1413(1).
When viewing this record in the light most favorable to the
State, we find that a rational finder of fact could have found
the essential elements of caretaker neglect under § 20-97 of the
Omaha Municipal Code beyond a reasonable doubt. A rational
finder of fact could have also found that Kilgore’s use of a belt
multiple times to discipline his daughter to the point of leaving
a red welt and causing pain sufficient to cause her to report the
incident to the school counselor the following day was not pro-
tected by § 28-1413(1). The evidence was therefore sufficient
to sustain his conviction.
CONCLUSION
For the reasons set forth above, we affirm the district court’s
order affirming Kilgore’s conviction and sentence.
Affirmed.