State v. Fernando , 32 Neb. Ct. App. 289 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
09/26/2023 08:09 AM CDT
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STATE V. FERNANDO
Cite as 32 Neb. App. 289State of Nebraska, appellee, v.
Shawna J. Fernando, appellant.
___ N.W.2d ___
Filed September 26, 2023. No. A-22-896.
1. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: An appellate 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. 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 essen-
tial elements of the crime beyond a reasonable doubt.
2. Criminal Law: Minors: Intent. There is no requirement under Nebraska
law that the defendant be physically present when the child abuse
occurs, or that the defendant be the only person present, so long as he or
she knowingly, intentionally, or negligently permits the child abuse.
3. Criminal Law: Intent: Words and Phrases. In the context of a crimi-
nal statute, that which is done willfully or purposefully rather than acci-
dentally or involuntarily is done intentionally; being a state of mind, the
intent operative at the time of an action may be inferred from the words
and acts of an accused and from the facts and circumstances surrounding
the conduct.
4. Appeal and Error. Plain error may be found on appeal when an error
unasserted or uncomplained of at trial is plainly evident from the
record, affects a litigant’s substantial right, and, if uncorrected, would
result in damage to the integrity, reputation, and fairness of the judi-
cial process.
Appeal from the District Court for Douglas County: Todd
O. Engleman, Judge. Affirmed as modified.
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Cite as 32 Neb. App. 289James K. McGough, of McGoughLaw, P.C., L.L.O., for
appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Pirtle, Chief Judge, and Moore and Riedmann, Judges.
Riedmann, Judge.
INTRODUCTION
This is Shawna J. Fernando’s direct appeal from her convic-
tions of two counts of intentional child abuse and one count
of accessory to first degree sexual assault of a child following
a bench trial in Douglas County District Court. On appeal,
Fernando assigns that the evidence was insufficient to convict
her of the crimes charged. Following our review, we affirm
Fernando’s convictions. However, because the district court
committed plain error in sentencing Fernando to a term of post-
release supervision, we modify the sentencing order.
BACKGROUND
Fernando is the mother of the victim, who was born in
2006. Fernando had six other children and was married to
Pedro Fernando Flores, although at the time of trial, she was
in the process of divorcing him; Flores was born in 1989.
Prior to March 2021, Fernando stayed home with her children
while Flores worked and provided financial support to the
family. Flores was not the victim’s biological father, but he
came into her life when she was very young and she called
him “‘Dad.’”
The victim was 15 years old at the time she testified at
trial. According to the victim, when she was in fifth grade and
11 years old, Flores entered her bedroom while she was sleep-
ing and put his penis in her vagina. The next day, the victim
told Fernando that Flores “had sex” with her, and Fernando
left the room to speak with Flores. The victim could not
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Cite as 32 Neb. App. 289understand what the two were saying, although it sounded as
though they were yelling.
After the victim told Fernando what had happened, Flores
continued to live with the victim and continued to sexually
penetrate her. When the victim was in sixth grade, the family
moved to another apartment, and Flores continued to assault
the victim in the same manner; the victim did not tell her
mother that Flores was continuing to do so. At some point later
in her sixth grade year, when the victim was 12 years old, she
and her family moved into a house in Omaha, Nebraska, where
Flores continued the sexual assaults. By this time, the victim
had begun menstruating, although she could not remember
exactly how old she was when it first occurred.
The victim testified that when she was in sixth grade,
toward the end of the school year, Fernando asked her if she
had gotten her period that month and she told her she had not.
Shortly thereafter, Fernando had the victim do a home preg-
nancy test, which was positive. Fernando inquired who the
father was, and the victim told her that it was Flores. Fernando
called Flores on the phone, he came home, and Fernando and
Flores spoke on the back porch of the home, but the victim did
not remember what was said.
A couple of days later, Fernando called an abortion clinic
and handed the phone to the victim, who made an appointment.
Fernando, along with her sister, took the victim to the abortion
clinic and instructed the victim to say that the father of her
unborn child was “a boy from school.” At the clinic, the victim
filled out the necessary paperwork herself, as required by staff,
despite not understanding all the questions or words on the
form. Fernando signed a release of liability form at the clinic,
as well as a notarized parental consent form.
According to the victim, she took a pill at the clinic and
was given a prescription for another pill to take the next day.
The next day was a Sunday, and Fernando and the rest of
the family went to church while she was left home alone to
take the remainder of the medication. The abortion caused
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Cite as 32 Neb. App. 289her to have painful cramps. When the family returned home,
Fernando checked on her but left the house again, and Flores
comforted her and gave her some pain medication.
After the abortion, Flores continued to reside with the family
and continued to sexually penetrate the victim. At Fernando’s
suggestion, the victim began using birth control pills. At some
point, Fernando had the victim take a second pregnancy test
because her period was late, but the results were negative.
At that time, the victim again told Fernando what Flores was
doing to her. After the second pregnancy test, Flores continued
to reside with the victim and sexually assault her.
Contrary to the victim’s trial testimony that she told
Fernando on three different occasions what Flores was doing,
defense counsel impeached her several times with her prior
statements in which she claimed to have told her mother on
only two occasions. This included statements made during
her child advocacy center interview, trial testimony during a
juvenile court proceeding, deposition testimony in a criminal
proceeding against Flores, and deposition testimony in the cur-
rent case.
The victim testified that prior to the abortion, she would
track her period using an application on her phone. She would
tell Fernando when she needed feminine hygiene products.
Fernando would also track the victim’s periods and would ask
the victim about them.
In January 2021, the victim told a friend what had been
happening, and this led to the police coming to the family’s
home. This was close in time to the last instance of sexual pen-
etration. When the police first arrived, Fernando retrieved the
victim from her room, told her why the police were there, and
instructed the victim to tell the police it was not true.
According to the investigating officers, the victim was ner-
vous to speak with them because Fernando and Flores were
present. At the suggestion of one of the officers, the victim
spoke privately with an officer in his cruiser. When they
returned to the house, Fernando did not attempt to comfort the
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Cite as 32 Neb. App. 289victim despite her being obviously distressed. It was agreed
that Flores would leave the home and spend the night else-
where. When Flores left, Fernando hugged him.
The victim was to go to a child advocacy center the next
day, and according to the victim, Fernando told her to say that
“it was all a lie” and that if she did not say it was a lie, the
children would go into foster care. The next day, Fernando
and her sister took the victim to the child advocacy center for
an interview.
According to an investigator assigned to the case, Fernando
was also interviewed that day. After Fernando was taken into
custody and her phone was confiscated, Flores attempted to
call Fernando’s phone. The investigator asked Fernando if
she would be willing to call or text Flores to determine his
whereabouts, but she declined. Pursuant to a search warrant
for the phone’s content, investigators discovered period track-
ers on her phone, as well as an attempt by Fernando to call
Flores shortly after the police had left the residence the previ-
ous night.
Fernando testified that she tracked the victim’s period
because she needed to know when to buy hygiene products,
because the victim would have “accidents” when she first
started menstruating. Fernando explained that the family had
a tight budget and that she needed to make sure to have
money for the items. She said she had asked the victim to
keep track of her own periods, but the victim would some-
times forget.
Fernando stated that when she discovered the victim was
pregnant, the victim would not tell her who the father was.
Fernando claimed she asked the victim over the course of the
week about it, and eventually asked if it was a certain boy
from the church they attended, and the victim said that it was.
Fernando said it was the victim’s decision to have an abor-
tion. She also testified that the abortion clinic recommended
that the victim start birth control because it would be good
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Cite as 32 Neb. App. 289for her hormones; that is why the victim was started on birth
control after the abortion.
Fernando claimed the first time she was aware of the
allegations of sexual assault by Flores was when the police
came to the home on January 31, 2021. She stated that some-
time after Thanksgiving 2020, the victim told her that Flores
had “smacked [the victim’s] butt” and the victim felt it was
inappropriate. Fernando claimed she spoke with Flores, who
denied it. She stated that shortly thereafter, she convinced
Flores to go to Mexico to visit family, which he did, and he
returned a week or so before police came to the home.
Fernando admitted that she knew the family of the boy she
claimed the victim said was the father of her unborn child,
but that she did not speak with the family. According to
Fernando, “[the victim] just didn’t want everyone to know, it
was [the victim’s] business. It was her [sic] for her to tell.”
Fernando said she told the victim she would not tell anyone
it was the boy’s unborn child and that the victim expressed
“[a] little bit” of concern about Fernando’s contacting the
boy’s family.
Following the review of written closing arguments, the dis-
trict court found the victim to be “very credible,” and Fernando
to be less so. It found Fernando guilty of two counts of inten-
tional child abuse, each a Class IIIA felony, and one count of
accessory to a felony, a Class IIA felony. For each convic-
tion of intentional child abuse, Fernando received a sentence
of 2 to 3 years’ imprisonment, with 12 months’ post-release
supervision. For her conviction of accessory to first degree
sexual assault of a child, she received a sentence of 10 to 14
years’ imprisonment. The sentences were ordered to be served
concurrently, and Fernando was given credit for 2 days’ time
served. Fernando appeals.
ASSIGNMENTS OF ERROR
Fernando assigns that there was insufficient evidence to
convict her of intentional child abuse when there was no
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Cite as 32 Neb. App. 289evidence that she intentionally placed the victim in a situa-
tion to be sexually abused. She also assigns that there was
insufficient evidence to support the conviction of accessory
to first degree sexual assault of a child, because there was no
evidence to determine the father of the unborn child and the
evidence demonstrated that the victim decided to proceed with
the abortion.
STANDARD OF REVIEW
[1] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same: 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. State v. Thelen, 305 Neb. 334,
940 N.W.2d 259 (2020). 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 rea-
sonable doubt. Id.ANALYSIS
Intentional Child Abuse.
Fernando was charged with two counts of intentional child
abuse. To be found guilty, the State was required to prove
that Fernando knowingly and intentionally caused or permit-
ted the victim to be placed in a situation that endangered her
life or physical or mental health or to be placed in a situation
to be sexually abused as defined in Neb. Rev. Stat. § 28-319,
§ 28-319.01, or § 28-320.01 (Reissue 2016). See Neb. Rev.
Stat. § 28-707 (Cum. Supp. 2022). Section 28-319.01 pro-
vides that a person commits first degree sexual assault of a
child if a person at least 19 years of age subjects a person
under 12 years of age to sexual penetration, or if a person 25
years of age or older subjects a person at least 12 years of
age, but less than 16 years of age, to sexual penetration.
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Cite as 32 Neb. App. 289Here, the State presented evidence from which a rational
trier of fact could conclude that Fernando knew that the vic-
tim was being sexually assaulted by Flores and permitted the
victim to be placed in that situation. The victim testified that
when she was 11 years old, Flores subjected her to sexual
penetration, and that he continued to do this when she was
age 12 and older. Flores was always over the age of 25 when
the assaults occurred. The victim told Fernando about Flores’
actions after the first assault, when she became pregnant, and
after she took a second pregnancy test; however, Fernando did
nothing, thereby permitting the victim to be placed in a situa-
tion in which the sexual assaults continued for years.
Fernando paraphrases § 28-707(e) as follows: “A person
commits child abuse if he or she knowingly, intentionally, or
negligently causes or permits a minor child to be placed in
a situation to be sexually abused.” Brief for appellant at 13
(emphasis omitted). She argues that viewing the evidence in
the light most favorable to the State, the evidence showed
that she disregarded a substantial and unjustifiable risk by
not removing the victim or her husband from the home. She
asserts that this shows she acted recklessly with respect to the
potential harm against the victim, which “is the very defini-
tion of negligent child abuse described in § 28-707(9).” Brief
for appellant at 14 (emphasis in original). She concludes that
inaction may constitute negligence or recklessness but does not
constitute an intentional act because “[i]naction is not an overt,
intentional act that places someone in a dangerous position
they otherwise would not have found themselves in.” Id.
We find Fernando’s rationale flawed. If her inaction can
be the basis for a finding of negligent child abuse, as she
admits it can, it necessarily follows that it can be a basis for
a finding of intentional child abuse. Action, or lack thereof,
is not what differentiates intentional child abuse from neg-
ligent child abuse. The proscribed conduct for each offense
is exactly the same; it is the actor’s state of mind which dif-
ferentiates the offenses. State v. Blair, 272 Neb. 951, 726
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Cite as 32 Neb. App. 289N.W.2d 185 (2007). If the abuse is committed knowingly and
intentionally, it is a felony; if committed negligently, it is a
misdemeanor. Id.[2] Section 28-707 applies to persons who either “cause”
or “permit” a minor child to be placed in a situation to be
sexually abused. By its very nature, the statute governs both
action and inaction. No overt act is required when one per-
mits a child to be placed in a situation to be sexually abused;
rather, one can permit it to happen by failing to take action to
prevent it. As explained by the New Mexico Supreme Court,
“‘causing’ and ‘permitting’ child abuse are distinct theories,
one premised upon active abuse (causing), the other upon
‘the passive act of allowing the abuse to occur’ (permitting).”
State v. Nichols, 2016 NMSC 001, ¶ 32, 363 P.3d 1187, 1192
(2015). As it relates to child abuse, the Nebraska Supreme
Court has stated:
[U]nder Nebraska law, one can commit child abuse if he
or she “knowingly, intentionally, or negligently causes or
permits a minor child” to be abused in one of the ways
prohibited under § 28-707(1). (Emphasis supplied.) There
is no requirement under Nebraska law that the defendant
be physically present when the child abuse occurs, or that
the defendant be the only person present, so long as he or
she knowingly, intentionally, or negligently permits the
child abuse.
State v. Olbricht, 294 Neb. 974, 984, 885 N.W.2d 699, 707
(2016) (emphasis in original).
[3] Based upon the evidence presented, a rational trier
of fact could find that Fernando was made aware of Flores’
actions on three occasions, yet she permitted the victim to be
placed in a situation to be continually sexually assaulted.
In the context of a criminal statute, that which is done
willfully or purposefully rather than accidentally or
involuntarily is done intentionally; being a state of mind,
the intent operative at the time of an action may be
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Cite as 32 Neb. App. 289inferred from the words and acts of an accused and from
the facts and circumstances surrounding the conduct.
State v. Meyer, 236 Neb. 253, 255, 460 N.W.2d 656, 658
(1990).
Fernando made an intentional decision to keep the victim
and her assailant under the same roof. There was nothing acci-
dental or involuntary involved. The district court did not err
in finding Fernando guilty of intentional child abuse, and we
reject her argument to the contrary.
Accessory to First Degree Sexual Assault of Child.
Fernando argues that there was insufficient evidence to sup-
port the conviction of accessory to first degree sexual assault
of a child and that there was no evidence to determine the
father of the unborn child. To convict Fernando of the charge,
the State was required to prove that Fernando, with intent to
interfere with, hinder, delay, or prevent the discovery, appre-
hension, prosecution, conviction, or punishment of another
person for the offense of first degree sexual assault of a child,
did harbor or conceal a felon, or provide or aid in avoid-
ing the discovery or apprehension of the felon, or conceal or
destroy evidence of the crime, tamper with a witness, inform­
ant, document or other source of information, regardless of
its admissibility into evidence. See Neb. Rev. Stat. § 28-204(Reissue 2016).
Here, there was evidence that Fernando, upon learning that
her 12-year-old daughter was pregnant by Flores, had the vic-
tim undergo an abortion and told the victim to tell people that
the father of the unborn child was a boy from school. After
the police were made aware of the abuse, Fernando told the
victim to tell the police and interviewers at the child advocacy
center that “it was all a lie.” It can be inferred from the cir-
cumstances surrounding the situation that Fernando’s actions
were taken with the intent to prevent the discovery of the
crime and the prosecution of Flores. This was sufficient for
the district court to find Fernando guilty of accessory to first
degree sexual assault of a child.
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Cite as 32 Neb. App. 289Fernando argues the victim made the decision to terminate
the pregnancy, that the clinic ultimately and independently
administered and prescribed the medication, and that when
coupled with the lack of any evidence to prove that Flores was
the father and that Fernando took any action knowing that fact,
there was insufficient evidence to support the accessory con-
viction. We disagree.
The victim testified she told Fernando that Flores was the
father of her unborn child and that it was Fernando’s idea
for the victim to get an abortion. The victim testified that
Fernando told her to tell other people that the father of her
unborn child was a boy from her school. Years later, Fernando
told the victim to tell police and the staff at the child advocacy
center that “it was all a lie.” Although Fernando claimed at
trial that the victim told her the father was a boy from church,
Fernando did not attempt to contact the boy’s family or take
any action to follow up on her belief that her 12-year-old
daughter was pregnant by another child. The district court spe-
cifically stated that it found Fernando to be less credible than
the victim. We do not resolve conflicts in the evidence, pass
on the credibility of witnesses, or reweigh the evidence. See
State v. Thelen, 305 Neb. 334, 940 N.W.2d 259 (2020).
The evidence was sufficient to support the conviction of
accessory to first degree sexual assault of a child. This assign-
ment of error fails.
Plain Error in Sentencing.
[4] The State directs our attention to a matter of potential
plain error in the imposition of Fernando’s sentences. Plain
error may be found on appeal when an error unasserted or
uncomplained of at trial is plainly evident from the record,
affects a litigant’s substantial right, and, if uncorrected, would
result in damage to the integrity, reputation, and fairness of the
judicial process. State v. Guzman, 305 Neb. 376, 940 N.W.2d
552 (2020).
Fernando was convicted of two Class IIIA felonies. A
Class IIIA felony is punishable by a maximum sentence of
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Cite as 32 Neb. App. 2893 years’ imprisonment and 18 months’ post-release supervi-
sion, a $10,000 fine, or both, with no minimum sentence of
imprisonment required, although if imprisonment is imposed,
a minimum of 9 months’ post-release supervision is required.
See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2022). However, if
a person is sentenced to imprisonment for a Class IIIA felony
and is sentenced concurrently or consecutively to imprison-
ment for a Class IIA felony, that person shall not be subject to
post-release supervision. See § 28-105(6).
Fernando was sentenced for her convictions of Class IIIA
felonies concurrently to her conviction of a Class IIA felony.
Thus, she should not have been sentenced to a term of post-
release supervision. We strike that portion of the sentencing
order imposing a term of post-release supervision and the cor-
responding order for post-release supervision.
CONCLUSION
We find the evidence was sufficient to support the convic-
tions of intentional child abuse and accessory to first degree
sexual assault of a child. We modify the sentencing order to
strike the portion that ordered Fernando to serve a term of
post-release supervision and the corresponding order for post-
release supervision. We affirm the order of the district court in
all other respects.
Affirmed as modified.