State v. Draper ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/28/2016 09:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. DRAPER
Cite as 295 Neb. 88
State of Nebraska, appellee, v.
Peter Francis Draper, appellant.
___ N.W.2d ___
Filed October 28, 2016. No. S-15-1222.
1. Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
dence claim, whether the evidence is direct, circumstantial, or a com-
bination 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.
2. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
3. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence
Rules commit the evidentiary question at issue to the discretion of the
trial court, an appellate court reviews the admissibility of evidence for
an abuse of discretion.
4. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion
by the trial court.
5. 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.
6. Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
dence claim, an appellate court does not pass on the credibility of wit-
nesses—that is for the trier of fact.
7. ____: ____. In reviewing a sufficiency of the evidence claim, the rel-
evant question for an appellate court is whether, after viewing the evi-
dence 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.
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8. Convictions: Witnesses. A defendant’s conviction of a crime may be
based on uncorroborated testimony of a single witness.
9. Verdicts: Juries: Appeal and Error. Harmless error review looks to
the basis on which the jury actually rested its verdict; the inquiry is
not whether in a trial that occurred without the error, a guilty verdict
would surely have been rendered, but whether the actual guilty verdict
rendered was surely unattributable to the error.
10. Trial: Evidence: Appeal and Error. Generally, erroneous admission of
evidence is harmless error and does not require reversal if the evidence
is cumulative and other relevant evidence, properly admitted, supports
the finding by the trier of fact.
11. Sentences: Appeal and Error. In reviewing a sentence imposed within
the statutory limits, an appellate court considers whether the sentenc-
ing 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.
12. 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.
13. ____. Traditionally, a sentencing court is accorded very wide discretion
in determining an appropriate sentence.
Appeal from the District Court for Franklin County: Stephen
R. Illingworth, Judge. Affirmed.
Charles D. Brewster, of Anderson, Klein, Brewster & Brandt,
for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Cassel, J.
I. INTRODUCTION
In this direct appeal, Peter Francis Draper challenges his
convictions for intentional child abuse resulting in death and
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intentional child abuse resulting in serious bodily injury. He
alleges that there was insufficient evidence to support either
conviction, that improper opinion and rule 4041 testimony was
allowed into evidence, and that he received excessive sen-
tences. Finding no merit in his arguments, we affirm.
II. BACKGROUND
Draper was convicted of intentional child abuse resulting
in death and intentional child abuse resulting in serious bodily
injury in connection with the untimely death of his 2-year-old
grandson. For the second time, Draper has appealed these con-
victions to this court. On the first direct appeal, after finding
cumulative error concerning the testimony of Draper’s wife,
Nancy Draper (Nancy), we reversed Draper’s convictions and
remanded the cause for a new trial.2 The case is now before us
on direct appeal from the second trial. We briefly summarize
those proceedings.
1. Joe Jr.’s Injuries and Death
Joseph Rinehart, Jr. (Joe Jr.), died on April 30, 2012. He
was 2 years old. At the time of his death, Joe Jr. lived with
his mother, Laura Rinehart (Rinehart), his maternal grand-
parents, Draper and Nancy, and his three siblings in a small
three-­bedroom trailer home. Joe Jr.’s father was separated from
Rinehart and had not had contact with Joe Jr. or any of the
Rinehart children for the year leading up to Joe Jr.’s death. At
all times when Joe Jr. would have sustained his injuries, the
only adults to have unchecked access to him were Rinehart,
Draper, and Nancy.
On April 30, 2012, at approximately 6 p.m., Joe Jr. was
brought to the community hospital by Rinehart and Nancy
after Rinehart noticed red in his vomit. He had shown flu-
like symptoms—lethargy, diarrhea, and vomiting—for the last
1
Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014).
2
State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).
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several days. At the hospital, the physician on call performed
an examination and concluded that the child had a swollen
stomach. The physician then ordered an x ray of his abdomen
to determine the cause of the swelling. The x ray showed no
signs of injuries but did show possible signs of constipation.
At that point, the physician treated Joe Jr. for constipation and
sent him home.
Approximately 1 hour after Joe Jr. was discharged from the
hospital, Rinehart and Nancy brought him back to the emer-
gency room. He was not breathing and had no heartbeat. The
hospital staff attempted to revive him for 45 minutes but were
never able to find a heartbeat. The treating physician declared
Joe Jr.’s time of death at approximately 8:41 p.m.
Because the cause of death was unexplained, the hospi-
tal staff notified law enforcement of Joe Jr.’s death. Law
enforcement officials then initiated a death investigation for
the purpose of collecting information to determine the cause
of death.
Law enforcement officials interviewed Rinehart, Draper,
and Nancy late in the evening on April 30, 2012. At no point
did Rinehart or Draper mention concerns of abuse. Draper
did tell the interviewing officer that he believed the autopsy
would show no signs of violence but may show signs of a rare
“bone disease.”
An autopsy was performed on Joe Jr., and the pathologist
concluded that the cause of death was multiple blunt force
trauma of the head, trunk, and extremities. The manner of
death was ruled to be homicide. Post mortem CT scans showed
old rib fractures, a recent skull fracture, a recent pelvic frac-
ture, strain injuries on the arms and shoulders, and a ruptured
bowel. The perforated bowel was likely associated with the
recent pelvic fracture.
Medical experts determined that these injuries were likely
the result of abuse or outer trauma, because Joe Jr. did not
have any bone disease or other contributing disability. The
pathologist who performed the autopsy additionally identified
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several bruises on the child’s knees, elbows, shoulders, and
thighs and dated several of them as less than 24 hours old.
2. A rrest and Charges
After the autopsy, law enforcement officials interviewed
Rinehart, Draper, and Nancy again and ultimately arrested all
three. The lead investigator noted probable cause arose “based
on the amount of injury on [Joe Jr.], [and] given the small size
of the residence, . . . it was [not] reasonable that there could
be that amount of injury to a small child and any of the adults
wouldn’t have some knowledge that that was occurring.” Once
detained, Rinehart shared her belief that Draper had abused
Joe Jr. She then entered a plea agreement with the State for
a reduced charge in exchange for testifying against Draper
at trial. Based on this information, Draper was subsequently
charged with child abuse resulting in death, allegedly commit-
ted on or between April 23 and 30, 2012, as well as child abuse
resulting in serious bodily injury on or between July 12, 2011,
and April 22, 2012.
3. Trial Evidence
At trial, the State presented testimony of several health
professionals to describe Joe Jr.’s various injuries and the pos-
sible sources of the injuries. None of the professionals were
able to point to a particular individual who committed the
abuse. Rinehart was the only witness to specifically testify
to Draper’s alleged physical abuse of Joe Jr. and to explain
the events leading up to his death. Several other witnesses
also testified to their interactions with Draper to confirm his
control of the household and substantiate Rinehart’s claims.
Draper did not testify in his behalf or present any witnesses
of his own.
(a) Rinehart’s Testimony
Rinehart testified that after her husband left the home,
Draper became the primary disciplinarian of her children.
His disciplinary techniques supposedly included timeouts that
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STATE v. DRAPER
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could last from “a couple minutes to a couple hours to a couple
of days.” Rinehart’s other children, aged 4 to 8 at the time of
the trial, would be “disciplined” for crying and would be made
to stand in a corner and sometimes would have to lift weights
over their heads.
According to Rinehart, Draper generally handled Joe Jr.
roughly—dragging him or yanking him by the arm. She also
described specific instances of physical abuse of Joe Jr. by
Draper. She testified that Draper once pushed Joe Jr. down
repeatedly so that his head hit the floor until the child’s head
was swollen and his eyes were black and blue. On that occa-
sion, Rinehart was not allowed to take Joe Jr. to the hospital,
because Draper warned her that Child Protective Services
would get involved.
Rinehart recalled one specific instance of abuse that she
believed caused the injuries resulting in Joe Jr.’s death. She
testified to have had witnessed Draper kneel on Joe Jr.’s abdo-
men with Joe Jr. on his back on the bed in the back bedroom.
At the same time, Draper held Joe Jr.’s arms above his head
and pressed one hand down on the child’s chest. Apparently,
Draper was attempting to get the child to say “‘yes, sir,’” and
held the child down in this position for several minutes while
exerting more pressure with his hand or knee when the child
did not immediately say what he wanted. Rinehart testified that
it was within a couple days of this incident that Joe Jr. started
to get sick and began to vomit a brown liquid.
After Rinehart described this incident she witnessed in
the back bedroom, the State questioned her about the cause
of a bruise above Joe Jr.’s ear that was discovered during
the autopsy:
Q (By [the State]) Exhibit 104, there’s an injury above
[Joe Jr.’s] ear. Do you see that?
A Yes, ma’am.
Q Do you know how that occurred?
A I believe that happened on one of the bars that was
on the bed. The railings.
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Cite as 295 Neb. 88
Q Are you speculating or do you know? Did you see
it happen?
A No, I didn’t.
Draper timely objected to Rinehart’s response as mere specu-
lation. However, the court overruled this objection, noting
that “she didn’t testify your client did it. She said she thought
it happened on the bed. . . . If she said [Draper] did something
to cause it on the bed, then we — I’d reconsider your objec-
tion. But she didn’t say that.”
On cross-examination, Draper questioned Rinehart about
missed opportunities to report the abuse of Joe Jr. earlier and
her plea agreement. Rinehart admitted that she did not ini-
tially speak about Draper’s abuse of Joe Jr. until after she was
arrested and faced with a Class IB felony charge. Rinehart
claimed that she was afraid of what Draper would do if she
told anyone about the abuse and that she felt safer talking
about it once he was arrested.
(b) Rule 404 Evidence
The State’s case heavily relied upon Rinehart’s testimony,
because she was the only one to tie Draper to the cause of
Joe Jr.’s death. To corroborate Rinehart’s fear of Draper, the
State elicited testimony from two child development social
workers and one Children and Family Services (CFS) initial
assessment worker who had negative encounters with Draper
when visiting the Draper residence.
(i) Child Development Social
Workers’ Testimony
Prosecution sought to elicit testimony from two child devel-
opment social workers who had testified in the first case
concerning the signs of child abuse they had witnessed at the
Draper residence and their confrontation with Draper during
an unscheduled child welfare checkup. Before either witness
was called to the stand, however, Draper objected to their tes-
timony as improper character evidence. The court considered
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STATE v. DRAPER
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this objection as a motion in limine outside the presence of
the jury.
Draper was primarily concerned with the two social workers’
testimony concerning the confrontation that occurred outside
the Draper residence and believed it would be disproportion-
ately prejudicial character evidence. When questioned about
whether it was limited-purpose evidence, Draper suggested it
would be difficult for the jury to follow such an instruction.
The court was not convinced and allowed the testimony with
the intent to give a limited-purpose instruction.
When the two social workers were called to the stand, they
each testified to have witnessed Joe Jr. with one large bruise
on his face with three long lines of bruising across it. The
family was not able to provide them with any explanation for
how Joe Jr. got the bruise. The social workers each separately
explained that after that visit, they were very concerned with
what they saw and that when they left the house that day, they
were crying. The second social worker additionally testified to
calling the child abuse hotline that evening.
When the second social worker to testify said that the social
workers cried after leaving, Draper objected on the grounds of
relevance and foundation. He had not objected earlier when
the first social worker testified to leaving the house in tears. In
ruling on his objection, the court allowed the testimony in over
the objection, because it was “consistent with the evidence pre-
sented by the other witness that they cried.”
The social workers also both testified about the unsched-
uled home visit where they had the altercation with Draper
outside of his home. Draper timely renewed his objections
in the presence of the jury, and the court gave the limiting
instruction for the testimony that the jury was not to “consider
it in relation to the character of . . . Draper, but [that they
could] consider it for the limited purpose of other issues of
what was going on in that house and who was in control in
that house.”
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STATE v. DRAPER
Cite as 295 Neb. 88
After not hearing from the family or about the status of
their report for a few weeks, the social workers dropped by
the Draper residence and one of them approached the fence
surrounding the trailer home. Draper arrived at the gate before
the social worker and would not let the social worker past
the gate. He was very angry and aggressive when he spoke,
because he believed that the social workers had reported
his family to Child Protective Services. After an unpleasant
exchange, Draper told the social workers to “get the [exple-
tive] off of his property and to never come back.” The social
workers did not return to the property or ever hear back from
the family.
(ii) CFS Worker’s Testimony
On a separate occasion where a report on the Draper resi-
dence was made to the child abuse hotline, one CFS worker
made an unscheduled visit to follow up on the report and
assess the family. The CFS worker testified that he pulled
up to the house in a car with a “‘Department of Health and
Human Services’” decal on the side and approached the fence
surrounding the property. At that point, Draper stopped the
CFS worker at the gate and asked him who he was and why he
was there. When the CFS worker explained why he was there,
Draper was upset and initially did not want to let him inside.
Draper eventually let the CFS worker inside but would not
allow him full access to the home—he allowed the worker to
observe the rooms but only from behind him while he stood in
front of the doorway.
The CFS worker testified that during his assessment,
Draper “had control of answering the questions and really
control of the whole conversation.” He also explained that he
was unable to speak with Rinehart, Draper, and Nancy sepa-
rately—as was his practice—because Draper “didn’t think . . .
that it was necessary. He had said that . . . they had nothing
to hide . . . .” The CFS worker also testified that he had to
instruct Draper to allow Rinehart to answer his questions,
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because Draper would interject with a comment before she
could answer the questions.
When the State asked the CFS worker whether he had “any
concerns with the way in which . . . Draper treated [Rinehart]
during the interview,” Draper objected on relevance, founda-
tion, and rule 404. Without discussion, the court overruled his
objection. In answering the question, the CFS worker testified:
[T]here was a point where [Draper] explained to me that
[Rinehart] was not a good parent. Was not a good mother.
He had made the statement that because of [Rinehart’s]
being a bad parent, now he and Nancy had to help with
bringing up the children. He had stated that Nancy’s job
now was to care for the children. And she was not going
to date or have a social life until after the children gradu-
ated from high school. He had made the statement that
was kind of concerning that he didn’t want [Rinehart] out
whoring around while she had children at home.
The court gave no limiting instruction to the CFS worker’s
testimony as it had given for the two social workers’ testimony.
At the end of the trial, the court did give the following written
limiting instruction: “During the trial I called your attention
to some evidence that was received for specified limited pur-
poses; you must consider that evidence only for those limited
purposes and for no other. The limited purpose evidence may
not be considered by you as evidence of [Draper’s] charac-
ter.” The last line of that instruction was specifically edited to
address Draper’s earlier objection that some testimony may be
construed as evidence of his character.
4. Convictions and Sentences
The jury found Draper guilty on both counts—intentional
child abuse resulting in death and intentional child abuse
resulting in serious bodily injury. Intentional child abuse
resulting in death is a Class IB felony3 and is punishable
3
Neb. Rev. Stat. § 28-707(6) (Cum. Supp. 2010).
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by 20 years’ to life imprisonment.4 Intentional child abuse
resulting in serious bodily injury is a Class II felony5 and is
punishable by 1 to 50 years’ imprisonment.6 The district court
sentenced Draper to 60 years’ to life imprisonment on the first
count and 49 to 50 years’ imprisonment on the second count,
with the sentences to be served consecutively. According to
the district court’s sentencing advisement, Draper will not be
eligible for parole until 2066.
III. ASSIGNMENTS OF ERROR
Draper alleges that the district court erred in (1) finding
sufficient evidence to convict him of child abuse resulting
in death beyond a reasonable doubt; (2) finding sufficient
evidence to convict him of child abuse resulting in serious
bodily injury beyond a reasonable doubt; (3) overruling his
objection on the basis of speculation and foundation about lay
testimony concerning the cause of an injury to the victim’s
ear; (4) allowing improper rule 404 evidence to be adduced
concerning his character; (5) allowing testimony concerning
the emotional reaction of witnesses without proper foundation,
and over his relevancy objection; and (6) giving him exces-
sive sentences.
IV. STANDARD OF REVIEW
[1] 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 the credibility of witnesses,
or reweigh the evidence; such matters are for the finder
of fact.7
4
Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014).
5
§ 28-707(5).
6
§ 28-105 (Reissue 2008 & Cum. Supp. 2014).
7
State v. Newman, 290 Neb. 572, 861 N.W.2d 123 (2015).
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STATE v. DRAPER
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[2,3] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by such
rules; judicial discretion is involved only when the rules
make discretion a factor in determining admissibility.8 Where
the Nebraska Evidence Rules commit the evidentiary ques-
tion at issue to the discretion of the trial court, an appellate
court reviews the admissibility of evidence for an abuse
of discretion.9
[4,5] We will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial
court.10 An abuse of discretion occurs when a trial court’s deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.11
V. ANALYSIS
1. Sufficiency of Evidence
Draper alleges that there was insufficient evidence to sup-
port either of his convictions, because they were “based solely
on the testimony of . . . Rinehart,” and that “her testimony
was unbelievable insomuch as she made incredible claims
about what [Draper] did and how he did it.”12 He essentially
argues that since Rinehart also could have caused the injuries
to Joe Jr., she lacks credibility and that, as a result, her testi-
mony is insufficient to sustain his conviction.
[6,7] This argument contradicts our standard of review. In
reviewing a sufficiency of the evidence claim, we do not pass
on the credibility of witnesses—that is for the trier of fact.13
8
State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016).
9
Id.
10
State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).
11
Id.
12
Brief for appellant at 9.
13
See State v. Newman, supra note 7.
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The relevant question for an appellate court is whether, after
viewing the evidence in the light most favorable to the pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.14
[8] In addition to Rinehart’s testimony, the State presented
testimony of seven medical experts, two law enforcement
officials, and four social workers to corroborate Rinehart’s
testimony concerning the alleged abuse and Joe Jr.’s injuries.
Though Rinehart was the only witness to specifically point
to Draper as the perpetrator of the abuse, this alone does not
make the evidence insufficient. In fact, Nebraska has a long-
standing rule that a defendant’s conviction of a crime may be
based on uncorroborated testimony of a single witness.15 Here,
Rinehart’s testimony was corroborated and it was not rebuked
by any contrary testimony.
Viewed in the light most favorable to the State, and with-
out passing on the credibility of witnesses, we find that there
was sufficient evidence for any rational juror to find Draper
guilty beyond a reasonable doubt for the crimes for which he
was convicted. Accordingly, Draper’s assignment of error is
without merit.
2. A lleged Improper Testimony
Draper assigns error to a few instances of testimony admitted
over objection. We review them in the context of a 6-day trial
and a record of over 700 pages. And whether they are viewed
individually or collectively, we reach the same conclusion.
(a) Testimony Concerning Ear Injury
Draper assigns that the district court erred in allowing
Rinehart to testify as to the cause of an injury above Joe Jr.’s
ear. Rinehart admitted that she did not see the injury occur,
14
Id.
15
See, e.g., State v. Ellis, 281 Neb. 571, 799 N.W.2d 267 (2011); State v.
Loveless, 234 Neb. 463, 451 N.W.2d 692 (1990). See, also, State v. Sims,
258 Neb. 357, 603 N.W.2d 431 (1999).
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and for that reason, Draper argues her statement that the
injury was caused by the bed railing was mere speculation and
improper lay opinion testimony.
[9] Assuming without deciding that it was error for the
district court to overrule Draper’s objection to the testimony,
the error was harmless. Harmless error review looks to the
basis on which the jury actually rested its verdict; the inquiry
is not whether in a trial that occurred without the error, a
guilty verdict would surely have been rendered, but whether
the actual guilty verdict rendered was surely unattributable to
the error.16
Here, the guilty verdict was surely unattributable to any
error in admitting the evidence regarding the bruise above
Joe Jr.’s ear. The State presented evidence of old rib frac-
tures, a recent skull fracture, a recent pelvic fracture, strain
injuries on the arms and shoulders, and a ruptured bowel
to support its allegations of child abuse resulting in serious
bodily injury and death. Additionally, medical experts testi-
fied that the cause of the injuries was likely the result of
abuse or outer trauma. The identification of additional bruis-
ing was merely collateral. Accordingly, any error in allowing
Rinehart’s statement concerning the cause of the bruise into
evidence was harmless.
(b) Rule 404 Evidence
At trial, two social workers were allowed to testify to an
interaction with Draper during an unscheduled visit where
Draper was angry and hostile because he believed they had
reported his family to Child Protective Services. Prior to their
testimony, Draper had unsuccessfully argued that their testi-
mony should be excluded as improper character evidence. A
CFS worker also testified to a separate unscheduled visit to
the Draper residence. Over Draper’s relevance, foundation, and
rule 404 objections, the CFS worker was allowed to testify as
16
State v. Cullen, supra note 10.
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to his concern for a few comments Draper made about Rinehart
as a mother.
Draper assigns that the district court erred in overruling his
objections to the testimony of these three witnesses and argues
that the testimony should have been excluded. He alleges that
the testimony was not relevant, was unduly inflammatory and
prejudicial, and could only have been offered to portray him as
a “vi[le] and aggressive individual.”17
Again, assuming without deciding that it was error for the
district court to overrule Draper’s objections, the error was
harmless. The guilty verdict was surely unattributable to any
error in admitting the allegedly improper character evidence.
(c) Testimony Concerning Emotional
Reaction of Witnesses
Draper also assigns that the district court erred in allow-
ing the second social worker to testify, over his objection,
that the social workers left the Draper residence and cried
after one home visit. Assuming without deciding that it was
error for the district court to overrule his objection, the error
was harmless.
[10] The first social worker had already testified to the
same—that the social workers left the residence in tears—
and Draper did not object at that time. Generally, errone-
ous admission of evidence is harmless error and does not
require reversal if the evidence is cumulative and other
relevant evidence, properly admitted, supports the finding
by the trier of fact.18 Because Draper failed to object to the
first social worker’s similar testimony, it was harmless error
for the district court to allow the second social worker’s
testimony concerning their emotional reaction after the
home visit.
17
Brief for appellant at 12.
18
State v. Jenkins, 294 Neb. 475, 883 N.W.2d 351 (2016).
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3. Excessive Sentences
Lastly, Draper alleges that he received excessive sentences
because the district court “essentially imposed a double life
sentence.”19 He was convicted of one count of intentional child
abuse resulting in death—a Class IB felony,20 punishable by
20 years’ to life imprisonment21—and one count of intentional
child abuse resulting in serious bodily injury—a Class II
felony,22 punishable by 1 to 50 years’ imprisonment.23 He was
sentenced to consecutive terms of 60 years’ to life imprison-
ment and 49 to 50 years’ imprisonment for the first and second
counts, respectively. As such, his sentences are within the
statutory limits.
[11,12] In reviewing a sentence imposed within the statu-
tory limits, an appellate court considers whether the sentenc-
ing 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.24 When imposing a
sentence, the sentencing court is to 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.25
Draper argues that the sentences were “somewhat exces-
sive” based on his current circumstances and his lack of
a criminal record.26 At the time of sentencing, Draper was
19
Brief for appellant at 17.
20
§ 28-707(6).
21
§ 28-105 (Cum. Supp. 2014).
22
§ 28-707(5).
23
§ 28-105 (Reissue 2008 & Cum. Supp. 2014).
24
See State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016).
25
Id.
26
Brief for appellant at 17.
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Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
STATE v. DRAPER
Cite as 295 Neb. 88
51 years old, with no prior criminal record. At trial, Draper
elicited testimony from his family physician confirming that
he suffered from multiple sclerosis and was taking several
medications to treat the symptoms of the disease. He also
presented evidence that he had limited mobility and had
decreased vision and deafness from the disease.
[13] The evidence also clearly establishes the severity of
the offense and the violence necessary to cause the fatal inju-
ries to the 2-year-old child in this case. As there is no evidence
that the district court failed to consider these factors in deter-
mining Draper’s sentences, and given that, traditionally, a sen-
tencing court is accorded very wide discretion in determining
an appropriate sentence,27 we find that the court did not abuse
its discretion in imposing Draper’s sentences.
VI. CONCLUSION
We conclude that the jury’s verdicts were supported by the
evidence, that any error in admitting testimony over Draper’s
objections was harmless, and that the district court’s sentences
did not constitute an abuse of discretion. For these reasons, we
affirm the judgment of the district court.
A ffirmed.
27
State v. Miller, 284 Neb. 498, 822 N.W.2d 360 (2012).