State v. Olbricht ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2016 09:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
STATE v. OLBRICHT
Cite as 294 Neb. 974
State of Nebraska, appellee, v.
Cody Olbricht, also known as
Cody Olbrich, appellant.
___ N.W.2d ___
Filed October 14, 2016. No. S-15-404.
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. Evidence: Appeal and Error. In reviewing 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 credibility of witnesses, or reweigh the
evidence; such matters are for the finder of fact. The relevant question
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.
3. Criminal Law: Minors: Proof. The provisions of Neb. Rev. Stat.
§ 28-707 (Cum. Supp. 2014) do not require the State to prove a minor
child was in the exclusive care or custody of the defendant when the
child abuse occurred.
4. 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.
5. Criminal Law: Minors: Circumstantial Evidence: Proof. Evidence
showing a child was in the defendant’s sole care during the timeframe
when the child suffered injuries is circumstantial evidence from which
it can reasonably be inferred that the defendant caused such injuries,
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but proof of sole or exclusive care is not a necessary prerequisite to
proving child abuse.
6. Circumstantial Evidence: Proof. A fact proved by circumstantial evi-
dence is nonetheless a proven fact.
7. Circumstantial Evidence. Circumstantial evidence is not inherently
less probative than direct evidence.
8. Courts: Appeal and Error. Upon reversing a decision of the Nebraska
Court of Appeals, the Nebraska Supreme Court may consider, as it
deems appropriate, some or all of the assignments of error the Court of
Appeals did not reach.
9. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A
defendant who moves for dismissal or a directed verdict at the close of
the evidence in the State’s case in chief in a criminal prosecution, and
who, when the court overrules the dismissal or directed verdict motion,
proceeds with trial and introduces evidence, waives the appellate right
to challenge correctness in the trial court’s overruling the motion for
dismissal or a directed verdict but may still challenge the sufficiency of
the evidence.
10. Appeal and Error. An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the error to be
considered by an appellate court.
11. Criminal Law: Motions for New Trial: Appeal and Error. In a crimi-
nal case, a motion for new trial is addressed to the discretion of the trial
court, and unless an abuse of discretion is shown, the trial court’s deter-
mination will not be disturbed.
12. Sentences. When a sentence orally pronounced at the sentencing hearing
differs from a later written sentence, the former prevails.
13. ____. Imposing a sentence within statutory limits is a matter entrusted to
the discretion of the trial court.
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 unrea-
sonable or if its action is clearly against justice or conscience, reason,
and evidence.
16. Sentences. When imposing a sentence, a sentencing judge should 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
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well as (7) the nature of the offense and (8) the amount of violence
involved in the commission of the crime.
Petition for further review from the Court of Appeals, Moore,
Chief Judge, and Irwin and Inbody, Judges, on appeal thereto
from the District Court for Scotts Bluff County, R andall L.
Lippstreu, Judge. Judgment of Court of Appeals reversed, and
cause remanded with directions.
Leonard G. Tabor for appellant.
Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Stacy, J.
NATURE OF CASE
After a bench trial in the district court for Scotts Bluff
County, Cody Olbricht, also known as Cody Olbrich, was
convicted of knowing and intentional child abuse resulting in
serious bodily injury. The Nebraska Court of Appeals reversed
the conviction and vacated the sentence, holding the evi-
dence was insufficient to support the conviction.1 We granted
the State’s petition for further review. Because we conclude
the evidence was sufficient to sustain the conviction, we
reverse the Court of Appeals’ decision and remand the matter
with directions to affirm Olbricht’s conviction and sentence,
as modified.
FACTS
On September 28, 2014, 3-year-old A.M. was admitted to
an emergency room in Scottsbluff, Nebraska, with bruising
on her face, torso, arms, and legs. A.M. was not interactive,
appeared sleepy, and had bleeding in the white part of her left
1
State v. Olbricht, 23 Neb. Ct. App. 607, 875 N.W.2d 868 (2016).
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eye. Due to A.M.’s symptoms, doctors suspected she was suf-
fering from a subdural hemorrhage (brain bleed). A CAT scan
revealed a brain bleed and infarct in A.M.’s brain. Further
examination revealed A.M. had a laceration on the left lobe
of her liver. She was transferred by helicopter to a hospital in
Denver, Colorado, for further treatment.
The emergency room doctor in Scottsbluff suspected A.M.
had been abused and notified the authorities. Olbricht, the
live-in boyfriend of A.M.’s mother, was subsequently charged
with knowing and intentional child abuse resulting in serious
bodily injury.2 The operative information alleged the crime
occurred “[o]n or about March, 2014 through September,
2014.” Olbricht waived a jury trial, and the matter was tried
to the court.
Evidence at Trial
Cassandra Miller, A.M.’s mother, testified for the State. In
addition to testifying about the events leading up to A.M.’s
hospitalization, Miller testified about prior injuries A.M. had
received while in Olbricht’s care. According to Miller, in
March 2014, A.M. sustained a cut to her bottom lip while in
Olbricht’s care. And in separate instances in September, A.M.
incurred burns to her lips and face, various bruises on her
cheek and hips, and retinal bleeding while in Olbricht’s care.
There were no rule 4043 objections to this testimony.
On the evening of September 27, 2014, the day before A.M.
was admitted to the hospital, Miller and Olbricht took A.M. to
a fast-food restaurant and then to a babysitter. A.M. vomited
after leaving the restaurant. Miller changed A.M.’s clothes,
and then she and Olbricht left A.M. with the babysitter for
the night.
The babysitter noticed A.M. had bruises on her face, neck,
and back. According to the babysitter, A.M. was lethargic and
2
Neb. Rev. Stat. § 28-707(1) and (7) (Cum. Supp. 2014).
3
Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014).
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vomited several more times that night. The babysitter took
a photograph of A.M.’s bruises and sent it to A.M.’s grand-
mother, Lynelle Pahl. Pahl was at work when she received the
photograph via text message and said she would take A.M. to
the hospital first thing in the morning if A.M. was not better.
The babysitter also testified, over objection, that when she
informed A.M. that her grandmother was going to pick her up,
A.M. became very upset and seemed scared to go home:
She seemed terrified and she didn’t want to go home. She
kept expressing to me she didn’t want to go home.
....
. . . And then when I asked her if somebody was hurt-
ing her at home and she explained to me that, yes, and I
said who and she said, “daddy.” And I said, “where does
daddy hurt you?” She pointed to her shin and she pointed
to her foot. And I had rubbed her head and I felt lumps
all along her head and I said, “did he hit your head, too,”
and she said yes.
The evidence showed A.M. referred to Olbricht as “daddy.”
A.M.’s regular daycare provider testified that between
March and September 2014, A.M. regularly came to daycare
with bruises on her face, arms, back, and legs. When Olbricht
came to pick up A.M. from daycare, A.M. would become
upset and cry, because she did not want to go home with
him. In April, after noticing A.M.’s face was “really swol-
len,” seeing bruises down her back, and seeing a distinctive
mark across her left buttocks, A.M.’s daycare provider called
the Department of Health and Human Services to report her
concerns. The provider testified that after A.M. was released
from the hospital into Pahl’s care, she has had no injuries
or bruises.
Two doctors testified for the State. Dr. Jeffrey Salisbury,
A.M.’s emergency room doctor, testified that the subdural
hemorrhage and infarct in A.M.’s brain and the laceration to
A.M.’s liver were injuries that presented a substantial risk of
death. According to Dr. Salisbury, there was no way to tell
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exactly how old A.M.’s brain injury was, but it was his opinion
that the brain injury was “acute,” meaning it could have been
anywhere from 5 minutes to 2 weeks old.
Dr. Andrew Sirotnak, a forensic pediatrician and a mem-
ber of the medical team that treated A.M. at the hospital
in Denver, testified that in his opinion, A.M.’s brain injury
occurred “a day or two” or a “few days” prior to her hospi-
talization. Dr. Sirotnak testified that A.M.’s brain injury was
“clearly something that was inflicted” and that the injury was
likely the result of being “thrown from something or thrown
by something.” Dr. Sirotnak could not tell when the liver
injury occurred. Dr. Sirotnak diagnosed A.M. as a “battered
child,” meaning “a child that’s been injured in a multi system
manner over time.” According to Dr. Sirotnak, A.M.’s injuries
were likely nonaccidental because some occurred over soft tis-
sue and others displayed a bruising pattern that indicated they
were inflicted with an object. It was Dr. Sirotnak’s opinion
that A.M. had been hit with a wire hanger because the bruises
on her legs and hip were triangular in shape. With respect to
what caused the liver laceration, Dr. Sirotnak testified it was
likely caused by blunt trauma akin to the amount of force seen
in a car accident. Dr. Sirotnak opined that based on A.M.’s
medical history, there was no accidental explanation for her
liver injury.
At the close of the State’s case, Olbricht moved for a
directed verdict. The court overruled the motion, and Olbricht
proceeded to call numerous family members and acquaintances
who testified that A.M. was always healthy, happy, and clean
and that Olbricht had never abused her. Olbricht also called
Miller to testify for the defense. Miller testified that, in addi-
tion to the times A.M. was injured while in Olbricht’s care,
A.M. also had been injured while in Miller’s care. Miller testi-
fied that in August or September 2014, she and Olbricht were
home when A.M. fell down the stairs. Miller also testified that
on September 16, she was with A.M. at the park when A.M.
was hit in the head by a swing.
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STATE v. OLBRICHT
Cite as 294 Neb. 974
Olbricht testified in his own defense. He did not dispute
that A.M. had a history of prior injuries while in his care as
described by other witnesses. Instead, Olbricht denied that he
caused A.M.’s injuries and offered a variety of explanations
for how the injuries occurred, all of which either suggested
A.M. was responsible for her own injuries or another child had
inflicted the injuries.
The district court found the brain bleed and the liver lacera-
tion created a substantial risk of death and were serious bodily
injuries. The court recounted the evidence and concluded that
the injuries were nonaccidental and that “[t]he majority, if not
all, of [A.M.’s] documented injuries occurred when she was in
the sole physical care of . . . Olbricht.” Based on this evidence,
the court found Olbricht guilty of knowing and intentional
child abuse resulting in serious bodily injury.
After the court imposed sentence, Olbricht timely appealed,
assigning that the trial court erred in (1) finding him guilty,
(2) denying his motion for directed verdict, (3) overruling his
evidentiary objections, (4) overruling his motion for new trial,
and (5) imposing an excessive sentence.
Court of A ppeals
The Court of Appeals held the evidence was insufficient to
support Olbricht’s conviction, “because the evidence presented
never showed, directly or circumstantially, that A.M.’s seri-
ous bodily injuries occurred during a discrete timeframe when
Olbricht was the only adult in her presence.”4 That court laid
out its reasoning as follows:
According to the evidence at trial, the timeframe in
which A.M.’s serious bodily injuries were inflicted was
broad. Specifically, Dr. Salisbury testified that A.M.’s
brain injury was “acute,” meaning it could have occurred
anywhere from 5 minutes to 2 weeks before she came to
the emergency room. Dr. Sirotnak testified that A.M.’s
4
State v. Olbricht, supra note 1, 23 Neb. Ct. App. at 615, 875 N.W.2d at 874.
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brain injury occurred within “a day or two” of her hos-
pitalization. Neither doctor provided a specific timeframe
in which the liver injury occurred.
A.M. was not in Olbricht’s sole care for the week
or the “day or two” before she was hospitalized. For
example, Miller was with both Olbricht and A.M. dur-
ing the afternoon and evening of September 27, 2014,
the day before A.M. was hospitalized. Additionally, A.M.
was alone with Pahl for approximately an hour 6 days
before her hospitalization. Furthermore, the night before
her hospitalization, A.M. was in the care of the babysitter
and neither Olbricht nor Miller was present. Therefore,
pursuant to Dr. Sirotnak’s opinion that the injury occurred
within “a day or two” of A.M.’s hospitalization, Olbricht,
Miller, and the babysitter cared for A.M. during the rel-
evant timeframe. Pursuant to Dr. Salisbury’s opinion that
A.M.’s brain injury was between 5 minutes and 2 weeks
old, Olbricht, Miller, the babysitter, and Pahl all cared
for A.M. during the relevant timeframe. With respect to
A.M.’s liver injury, neither doctor provided a timeframe
during which the injury was inflicted, thereby making
it impossible to establish that Olbricht was A.M.’s sole
caregiver when the liver laceration occurred. . . . Here,
the lack of evidence that Olbricht had exclusive custody
of A.M. during the time when her substantial injuries
were inflicted prevents the conclusion that Olbricht com-
mitted child abuse.5
The Court of Appeals acknowledged there was circum-
stantial evidence that Olbricht had caused A.M.’s injuries,
but found that this evidence was insufficient to support the
conviction:
It is true that Olbricht and Miller testified about a number
of injuries that occurred while Olbricht was supervising
A.M. However, the record does not support a finding
5
Id. at 618-19, 875 N.W.2d at 875-76.
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that Olbricht caused either of the two injuries that could
have supported his conviction: A.M.’s brain bleed and
lacerated liver. Specifically, the State failed to adduce
evidence that A.M. was in Olbricht’s sole care at the time
she received the injuries that led to the brain bleed or
lacerated liver.
We note that there was some circumstantial evidence
that A.M. was afraid of Olbricht, that she said Olbricht
hurt her, and that she had previously suffered injuries
while in Olbricht’s care. However, this evidence is insuf-
ficient to overcome the fact that at least two other indi-
viduals could not be excluded as having caused the
brain bleed and lacerated liver that are of significance in
this case.6
Because the Court of Appeals concluded the evidence at
trial was legally insufficient, it held the Double Jeopardy
Clause barred retrial. And because it reversed Olbricht’s con-
viction and vacated the sentence, it did not address his other
assignments of error.
We granted the State’s timely petition for further review.
ASSIGNMENT OF ERROR
The State assigns that the Court of Appeals erred in conclud-
ing the evidence was insufficient to support the conviction.
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.7
6
Id. at 619, 875 N.W.2d at 876.
7
State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014); State v. McGuire,
286 Neb. 494, 837 N.W.2d 767 (2013).
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ANALYSIS
Sufficiency of Evidence
The State charged Olbricht with knowing and intentional
child abuse resulting in serious bodily injury under § 28-707.
That statute provides in relevant part:
(1) A person commits child abuse if he or she know-
ingly, intentionally, or negligently causes or permits a
minor child to be:
....
(b) Cruelly confined or cruelly punished;
....
(7) Child abuse is a Class II felony if the offense is
committed knowingly and intentionally and results in
serious bodily injury as defined in . . . section [28-109].
Under Neb. Rev. Stat. § 28-109(20) (Reissue 2008), “[s]eri-
ous bodily injury” is defined as “bodily injury which involves
a substantial risk of death, or which involves substantial risk of
serious permanent disfigurement, or protracted loss or impair-
ment of the function of any part or organ of the body.”
As such, because Olbricht was charged with intentional
child abuse resulting in serious bodily injury, the State was
required to prove beyond a reasonable doubt that (1) Olbricht
caused or permitted A.M. to be cruelly confined or cruelly
punished; (2) he did so knowingly and intentionally; (3) he did
so on, about, or between March and September 2014, in Scotts
Bluff County, Nebraska; (4) at the time Olbricht did so, A.M.
was a minor child; and (5) as a result, A.M. sustained a serious
bodily injury.
Olbricht’s appellate brief does not point to any material ele-
ment of the crime which lacked evidentiary support, but instead
argues generally that the circumstantial evidence adduced at
trial lacked probative value. Through a variety of arguments,
Olbricht emphasizes that he was not the only person to have
access to A.M. during the timeframe when her injuries likely
occurred, and he suggests the testimony of Miller and Pahl was
not credible.
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[2] As is often the case in child abuse prosecutions, the
evidence at trial was largely circumstantial. But whether the
evidence is direct, circumstantial, or a combination thereof,
our standard of review is the same: An appellate court does
not resolve conflicts in the evidence, pass on credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact.8 The relevant question 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.9
In analyzing the sufficiency of the evidence in the present
case, the Court of Appeals reasoned that “the lack of evidence
that Olbricht had exclusive custody of A.M. during the time
when her [serious bodily] injuries were inflicted prevents the
conclusion that Olbricht committed child abuse.”10 The Court
of Appeals thus implied that proof of exclusive custody or care
is required to support a conviction for knowing and intentional
child abuse resulting in serious bodily injury. But no such
requirement is found in the child abuse statute, and no such
requirement is compelled by precedent.
[3,4] The provisions of § 28-707 do not contain any require-
ment that the State must prove a minor child was in the
exclusive care or custody of the defendant when the child
abuse occurred. To the contrary, under 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 sup-
plied.) 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.
8
State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).
9
Id.
10
State v. Olbricht, supra note 1, 23 Neb. App. at 619, 875 N.W.2d at 876.
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Nor have our cases reviewing child abuse convictions
imposed an exclusive care requirement. In its analysis, the
Court of Appeals cited to several cases in which we affirmed
child abuse convictions.11 In those cases, we noted there was
evidence that the child had been in the sole care of the defend­
ant during the timeframe when the injuries occurred, but we
did so in the context of analyzing whether the evidence, con-
strued in the light most favorable to the State, would permit
a rational trier of fact to find the essential elements of the
crime beyond a reasonable doubt. In those cases, we did not
hold that, absent proof of exclusive or sole care, the evidence
would have been insufficient to support a finding of guilt.
And recently, in State v. Cullen,12 we affirmed a conviction
for knowing and intentional child abuse resulting in death,
despite evidence that the defendant was not the only person
with access to the child during the timeframe when the fatal
injuries occurred.
[5] As such, our prior holdings illustrate that evidence show-
ing a child was in the defendant’s sole care during the time-
frame when the child suffered injuries is circumstantial evidence
from which it can reasonably be inferred that the defendant
caused such injuries,13 but that proof of sole or exclusive care
is not a necessary prerequisite to proving child abuse.14
In this case, the Court of Appeals acknowledged there
was circumstantial evidence that Olbricht caused A.M.’s seri-
ous bodily injuries, including evidence that A.M. was afraid
of Olbricht, that A.M. said Olbricht hurt her, that A.M. had
suffered previous injuries while in Olbricht’s care, and that
11
See, State v. Chavez, 281 Neb. 99, 793 N.W.2d 347 (2011); State v.
Robinson, 278 Neb. 212, 769 N.W.2d 366 (2009); State v. Kuehn, 273
Neb. 219, 728 N.W.2d 589 (2007); State v. Leibhart, 266 Neb. 133, 662
N.W.2d 618 (2003).
12
State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
13
See cases cited supra note 11.
14
See State v. Cullen, supra note 12.
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Olbricht had cared for A.M. during the timeframe when she
sustained serious bodily injuries. But it concluded this circum-
stantial evidence was “insufficient to overcome the fact that
at least two other individuals could not be excluded as having
caused the brain bleed and lacerated liver that are of signifi-
cance in this case.”15 In other words, the Court of Appeals con-
cluded the circumstantial evidence was insufficient to support
the conviction, because the State had not disproved the pos-
sibility that others with access to A.M. may have caused the
injuries. The suggestion that the State has a different or more
onerous burden of proof in order to convict on circumstantial
evidence is one with which appellate courts, including this
court, have struggled historically.
Prior to 1981, when reviewing circumstantial evidence
on appeal, we followed what was often referred to as the
“accused’s rule.”16 That rule required an appellate court to
apply the inference most favorable to the accused when con-
fronted with two inferences deducible from circumstantial evi-
dence.17 The accused’s rule had the effect of requiring the State
“to disprove every hypothesis of nonguilt in order to convict”
using circumstantial evidence.18
But in State v. Buchanan,19 we expressly overruled the
accused’s rule, observing that it “‘lead[s] to serious departures
from the proper appellate role in evaluating the sufficiency
of evidence.’” In rejecting the accused’s rule, we recognized
“[c]ircumstantial evidence is entitled to be treated by the trier
of facts in the same manner as direct evidence” and “‘“the
implied distrust of circumstantial evidence is not warranted.”
. . .’”20 We then stated:
15
State v. Olbricht, supra note 1, 23 Neb. App. at 619, 875 N.W.2d at 876.
16
See State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).
17
Id.
18
Id. at 545, 537 N.W.2d at 329.
19
State v. Buchanan, 210 Neb. 20, 26, 312 N.W.2d 684, 688 (1981).
20
Id.
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We believe that we must once and for all abandon
any notion that before an accused may be convicted
on the basis of circumstantial evidence alone, the State
must disprove every hypothesis but that of guilt. One
accused of a crime may be convicted on the basis of
circumstantial evidence if, taken as a whole, the evi-
dence establishes guilt beyond a reasonable doubt. The
State is not required to disprove every hypothesis but
that of guilt.21
Despite our strong language in Buchanan, the accused’s
rule crept back into our jurisprudence in State v. Trimble,22
prompting us to again reject the rule in State v. Morley,23 where
we noted:
[O]n occasion the ghost of a dead rule of law returns to
temporarily haunt the halls of justice. In an effort to exor-
cise this mischievous spirit, we hereby reject the Trimble
language which improvidently proclaims that a criminal
conviction based solely on circumstantial evidence can
stand only if the State has disproved every hypothesis but
that of guilt.
Even after our pronouncement in Morley, the accused’s rule
proved difficult to eliminate. More than once, when review-
ing convictions premised only on circumstantial evidence, we
breathed life back into the discredited rule by evaluating cir-
cumstantial evidence using a standard of review which required
inferences from such evidence to be construed in favor of the
accused.24 Under such a standard, we reversed criminal con-
victions premised on circumstantial evidence unless we were
21
Id. at 28, 312 N.W.2d at 689.
22
State v. Trimble, 220 Neb. 639, 371 N.W.2d 302 (1985), overruled, State
v. Morley, 239 Neb. 141, 474 N.W.2d 660 (1991).
23
State v. Morley, supra note 22, 239 Neb. at 149, 474 N.W.2d at 667.
24
See, State v. Skalberg, 247 Neb. 150, 526 N.W.2d 67 (1995), overruled,
State v. Pierce, supra note 16; State v. Dawson, 240 Neb. 89, 480 N.W.2d
700 (1992), abrogated, State v. Pierce, supra note 16.
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able to conclude the inference of guilt was stronger than the
inference of nonguilt.25
[6,7] In State v. Pierce,26 we were confronted with our
inconsistent holdings. We chronicled the history of our efforts
to eliminate the accused’s rule and acknowledged that after
expressly rejecting the rule in Buchanan and Morley, we
had allowed it to reenter our jurisprudence. We then, once
again, rejected the accused’s rule and expressly overruled
those cases which had applied the rule in one form or another.
We explained:
“‘Courts following the [accused’s] rule exhibit a notice-
able tendency to divide the evidence into separate lines
of proof, and analyze and test each line of proof inde-
pendently of others rather than considering the evidence
as an interrelated whole. The sufficiency of the evidence
is often tested against theoretical and speculative possi-
bilities not fairly raised by the record, and inferences are
sometimes considered which, though entirely possible or
even probable, are drawn from evidence which the jury
may have disbelieved.’”27
We noted in Pierce that “a fact prove[d] by circumstantial evi-
dence is nonetheless a proven fact,”28 and we emphasized:
Circumstantial evidence is not inherently less probative
than direct evidence. . . . Whether evidence is circum-
stantial or direct, “a jury is asked to weigh the chances
that the evidence correctly points to guilt against the pos-
sibility of inaccuracy or ambiguous inference.” . . . “If
the jury is convinced beyond a reasonable doubt, we can
require no more.”29
25
Id.
26
State v. Pierce, supra note 16.
27
Id. at 547, 537 N.W.2d at 330, quoting State v. Buchanan, supra note 19.
28
State v. Pierce, supra note 16, 248 Neb. at 547, 537 N.W.2d at 330.
29
Id. (citations omitted).
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And finally, we reiterated in Pierce that the proper standard
of review is the same whether we are reviewing a conviction
based on direct or circumstantial evidence:
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, insuf-
ficiency 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 properly admitted evidence, viewed and construed
most favorably to the State, is sufficient to support the
conviction.”30
In the present case, the Court of Appeals’ analysis revived
the accused’s rule by requiring the State to disprove every
hypothesis of nonguilt in order to convict Olbricht using cir-
cumstantial evidence. For all the reasons we articulated in
Buchanan,31 Morley,32 and Pierce,33 we again reject the sug-
gestion that a different standard of review should be applied to
circumstantial evidence in a criminal case.
Applying the correct standard of review and considering
the material elements of the offense, we find the evidence
was sufficient to support Olbricht’s conviction for knowing
and intentional child abuse resulting in serious bodily injury.
Medical testimony supported a finding that A.M. was a bat-
tered child who had been injured in a multisystem manner
30
Id. at 548, 537 N.W.2d at 330-31.
31
State v. Buchanan, supra note 19.
32
State v. Morley, supra note 22.
33
State v. Pierce, supra note 16.
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over time. Medical testimony indicated her injuries were
intentional and not accidental. Evidence showed A.M.’s brain
bleed and liver laceration were serious bodily injuries. The
evidence also showed A.M. received a variety of suspicious
prior injuries while in Olbricht’s care, and her serious bodily
injuries were inflicted during a timeframe when she was in
Olbricht’s care. The babysitter testified that when she asked
A.M. who hurt her, A.M. said her “daddy” did. Since being
removed from Olbricht’s care, A.M. has not suffered bruising
or other injuries. While Olbricht offered numerous explana-
tions for A.M.’s various injuries, it can be presumed from the
court’s verdict that it did not find Olbricht’s testimony in that
regard credible.
Viewing this evidence in the light most favorable to the
prosecution, we find it is sufficient to support the verdict. We
therefore reverse the Court of Appeals’ decision.
[8] Upon reversing a decision of the Court of Appeals, we
may consider, as we deem appropriate, some or all of the
assignments of error the Court of Appeals did not reach.34 We
thus proceed to consider Olbricht’s remaining assignments
of error.
Directed Verdict
[9] Olbricht asserts the trial court erred in denying his
motion for directed verdict at the close of the State’s case.
The record confirms that after the motion was denied, Olbricht
proceeded to put on evidence. A defendant who moves for
dismissal or a directed verdict at the close of the evidence in
the State’s case in chief in a criminal prosecution, and who,
when the court overrules the dismissal or directed verdict
motion, proceeds with trial and introduces evidence, waives
the appellate right to challenge correctness in the trial court’s
34
State v. Simnick, 279 Neb. 499, 779 N.W.2d 335 (2010); State v. Hausmann,
277 Neb. 819, 765 N.W.2d 219 (2009).
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overruling the motion for dismissal or a directed verdict but
may still challenge the sufficiency of the evidence.35
By proceeding to introduce evidence after the motion for
directed verdict was overruled, Olbricht waived the right to
challenge the trial court’s ruling on appeal.
Evidentiary Objections
Olbricht’s brief cites to six instances in the record where
testimony was allowed, or exhibits were received, over his
objections. He assigns these evidentiary rulings as error, but
presents no argument as to how or why the court erred, or how
he was prejudiced thereby.
[10] An alleged error must be both specifically assigned
and specifically argued in the brief of the party asserting the
error to be considered by an appellate court.36 This require-
ment is not designed to impede appellate review, but to facili-
tate it by preventing parties from shifting to appellate courts
the critical tasks of searching the record for relevant facts,
identifying possible error, and articulating a legal ration­
ale that supports the assigned error.37 Olbricht’s assignment
of error regarding the district court’s evidentiary rulings is
not properly presented for appellate review, and we do not
address it further.
Motion for New Trial
[11] Olbricht asserts the district court erred in refusing to
grant his motion for new trial. In a criminal case, a motion for
new trial is addressed to the discretion of the trial court, and
unless an abuse of discretion is shown, the trial court’s deter-
mination will not be disturbed.38
35
State v. Graff, 282 Neb. 746, 810 N.W.2d 140 (2011).
36
State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015); State v. Filholm, 287
Neb. 763, 848 N.W.2d 571 (2014).
37
State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).
38
State v. Parnell, ante p. 551, 883 N.W.2d 652 (2016).
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Our record on appeal does not contain Olbricht’s motion
for new trial, so we are unable to determine whether it was
timely filed or on what grounds a new trial was requested. It
is incumbent upon the defendant who appeals his or her con-
viction to present a record which supports the errors assigned;
absent such a record, as a general rule, the decision of the
lower court as to those errors will be affirmed.39
Excessive Sentence
Olbricht claims his indeterminate prison sentence of 18
to 30 years is excessive. Before considering this assignment
of error, we pause to address a sentencing issue raised by
the State.
During the sentencing hearing, the court announced a sen-
tence of incarceration for a term “of not less than 15 years,
not more than 30 years.” The subsequently filed written order,
however, reflects a sentence of imprisonment “for a period of
not less than 18 yrs, nor more than 30 yrs.”
[12] We have held that when a sentence orally pronounced
at the sentencing hearing differs from a later written sentence,
the former prevails.40 Thus, on this record, the law requires
that the minimum term of Olbricht’s prison sentence be mod­
ified to reflect the district court’s oral pronouncement of
15 years.
[13-15] Olbricht was convicted of a Class II felony.41 A
sentence of 15 to 30 years’ imprisonment is within the statu-
tory limits for such a conviction.42 Imposing a sentence within
statutory limits is a matter entrusted to the discretion of the
trial court.43 Where a sentence imposed within the statutory
39
State v. Abbink, 260 Neb. 211, 616 N.W.2d 8 (2000).
40
State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009).
41
See § 28-707(7).
42
See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014).
43
See State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011).
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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.44 An abuse of discretion occurs when
a trial court’s decision is based upon reasons that are unten-
able or unreasonable or if its action is clearly against justice
or conscience, reason, and evidence.45
[16] With regard to the relevant factors that must be con-
sidered and applied, we have stated that when imposing a sen-
tence, 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 amount of violence
involved in the commission of the crime.46
Here, the presentence investigation report indicated Olbricht
was 25 years of age at the time of sentencing. He had com-
pleted the ninth grade and was unemployed. His criminal
history included juvenile delinquency adjudications and an
unsatisfactory release from juvenile probation. As an adult,
Olbricht had been convicted of several misdemeanors, includ-
ing third degree domestic assault and third degree assault. He
had another unrelated felony charge pending in district court at
the time of sentencing, and the presentence investigation report
scored him as a “‘Very High’” risk to reoffend.
The district court indicated it had read and considered the
information contained in the presentence investigation report,
had considered all the evidence adduced at trial, and had con-
sidered the relevant sentencing criteria. The court emphasized
44
State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016); State v. Dixon,
286 Neb. 334, 837 N.W.2d 496 (2013).
45
State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).
46
State v. Carpenter, supra note 44.
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the serious nature of the crime and the serious and lasting
nature of the injuries inflicted on A.M., and it concluded this
was not an appropriate case for a sentence of probation.
We find no abuse of discretion in Olbricht’s sentence of 15
to 30 years’ imprisonment.
CONCLUSION
For the foregoing reasons, we find the evidence was suf-
ficient to sustain the conviction, and we reverse the Court of
Appeals’ decision. We find no merit to Olbricht’s remaining
assignments of error. The matter is remanded with directions
to affirm Olbricht’s conviction and modify his sentence to
reflect the district court’s oral pronouncement of a term of
incarceration of 15 to 30 years.
R eversed and remanded with directions.