State v. Pauly ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/27/2022 08:06 AM CDT
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. PAULY
Cite as 311 Neb. 418State of Nebraska, appellant and cross-appellee,
v. Patrick M. Pauly, appellee and
cross-appellant.
___ N.W.2d ___
Filed April 22, 2022. Nos. S-21-401, S-21-409.
1. Sentences: Appeal and Error. When reviewing a sentence within the
statutory limits, whether for leniency or excessiveness, an appellate
court reviews for an abuse of discretion.
2. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
3. Motions to Dismiss: Jurisdiction: Appeal and Error. In determining
whether the district court erred in denying a party’s motion to dismiss
for lack of subject matter jurisdiction, an appellate court employs a de
novo standard of review.
4. Jury Instructions: Judgments: Appeal and Error. Whether jury
instructions given by a trial court are correct is a question of law. On
a question of law, an appellate court is obligated to reach a conclusion
independent of the determination reached by the court below.
5. Convictions: Appeal and Error. 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.
6. 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
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STATE v. PAULY
Cite as 311 Neb. 418prosecution, any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.
7. Jurisdiction: Appeal and Error. Where a lower court lacks subject
matter jurisdiction to adjudicate the merits of a claim, issue, or question,
an appellate court also lacks the power to determine the merits of the
claim, issue, or question presented to the lower court.
8. Statutes. A court must attempt to give effect to all parts of a statute,
and if it can be avoided, no word, clause, or sentence will be rejected as
superfluous or meaningless.
9. ____. A court must place on a statute a reasonable construction which
best achieves the statute’s purpose, rather than a construction which
would defeat that purpose.
10. Judgments: Appeal and Error. When the record demonstrates that the
decision of the trial court is correct, although such correctness is based
on different grounds from those assigned by the trial court, an appellate
court will affirm.
11. Sentences: Appeal and Error. A sentence imposed by a district court
that is within the statutorily prescribed limits will not be disturbed
on appeal unless there appears to be an abuse of the trial court’s
discretion.
12. Statutes: Sentences: Appeal and Error. While certain guidelines are
set forth by statute, neither the trial court’s sentencing determination nor
an appellate court’s review of that determination for an abuse of discre-
tion is formulaic or simply a matter of doctrine.
13. Sentences: Appeal and Error. It is not the function of an appellate
court to conduct a de novo review of the record to determine whether a
sentence is appropriate.
14. Sentences. Evidence regarding a defendant’s life, character, and previ-
ous conduct, as well as prior convictions, is highly relevant to the deter-
mination of a proper sentence.
15. Convicted Sex Offender: Statutes: Legislature: Intent. The Sex
Offender Registration Act is a civil regulatory scheme intended by the
Legislature to protect the public from the danger posed by sex offenders.
16. Moot Question. Mootness refers to events occurring after the filing of
a suit which eradicate the requisite personal interest in the resolution of
the dispute that existed at the beginning of the litigation.
17. Moot Question: Words and Phrases. A moot case is one which seeks
to determine a question that no longer rests upon existing facts or
rights—i.e., a case in which the issues presented are no longer alive.
18. Rules of the Supreme Court: Appeal and Error. Generally, parties
who wish to secure appellate review of their claims must abide by the
rules of the Nebraska Supreme Court.
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Nebraska Supreme Court Advance Sheets
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STATE v. PAULY
Cite as 311 Neb. 41819. ____: ____. Depending on the particulars of each case, failure to comply
with the mandates of Neb. Ct. R. App. P. § 2-109(D) (rev. 2022) may
result in an appellate court’s waiving the error, proceeding on a plain
error review only, or declining to conduct any review at all.
20. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
Appeals from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed.
R. Scott Earl, Deputy Sarpy County Attorney, for appellant.
Marcus A. Sladek, of Dornan, Troia, Howard, Breitkreutz,
Conway & Dahlquist, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
I. INTRODUCTION
Patrick M. Pauly was convicted of four counts of first
degree sexual assault and sentenced to concurrent terms of
5 years’ probation for each conviction. The State appeals,
arguing the district court handed down excessively lenient
sentences. Pauly cross-appeals, arguing the district court erred
in denying his motion for directed verdict, motion to dismiss,
and proposed jury instructions. For reasons set forth herein, we
affirm Pauly’s convictions and sentences.
II. BACKGROUND
In May 2019, the State filed an information charging Pauly,
who was born in May 1997, with four counts of first degree
sexual assault under Neb. Rev. Stat. § 28-319 (Reissue 2016).
The information was filed the day before Pauly’s 22nd birth-
day. An amended information was filed in July 2020, still alleg-
ing four counts of first degree sexual assault under § 28-319,
but further alleging the incidents occurred between January 1,
2008, and January 1, 2016.
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STATE v. PAULY
Cite as 311 Neb. 4181. Trial
The victim, K.H., was 15 years old at the time of trial in
October 2020. Pauly’s mother babysat K.H. and K.H.’s brother,
J.H., when they were between the ages of 4 and 12. K.H. testi-
fied that she was a repeat victim of sexual assault at the hands
of Pauly. Although she could not recall the exact number of
times she was assaulted, she was able to testify to four separate
incidents where Pauly assaulted her.
(a) Assault No. 1
K.H. testified that the first incident happened in Pauly’s bed-
room, located in the basement of the Pauly residence. At that
time, K.H. and J.H. were in Pauly’s bedroom when Pauly asked
J.H. to get him a soda. After J.H. left the room, Pauly told K.H.
to take her pants off and lie on the bed. Pauly then closed the
door, removed his clothing, lay on top of her, and inserted his
penis into her vagina. On cross-examination, K.H. testified
that she thought she was around 7 years old at the time, but
responded “[m]aybe” when defense counsel asked her if she
was 5 or 6 years old.
(b) Assault No. 2
The next incident occurred while K.H. and J.H. were watch-
ing Pauly play video games in his bedroom which was, at this
point, located in the upstairs area of the home. Pauly asked
J.H. to look out the window to see if anyone was there, then
told K.H. to “pull [her] pants down.” Pauly then pulled his
own pants down, lay on top of her, and put his penis in her
vagina. He began moving up and down after penetrating her.
On cross-examination, K.H. testified that this incident lasted
for about a minute while J.H. was a foot away. K.H. could not
recall how much time had passed between the first and second
incident, but thought that the second incident occurred a couple
of months after the first. J.H. testified that he did not hear any-
thing while standing at the window.
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STATE v. PAULY
Cite as 311 Neb. 418(c) Assault No. 3
The third incident occurred when Pauly penetrated K.H.
with his finger. K.H. testified that Pauly had a “Halloween
finger” he placed over his own finger and told K.H. that “this
is going to feel good.” Pauly instructed K.H. to take off her
pants and lie on the bed. He inserted the “Halloween finger”
into her vagina, causing K.H. to say “ow.” As she began to
scream, Pauly covered her mouth. K.H. could not say when
this incident happened or how old she was at the time, and she
could not recall whether this incident happened before or after
the second incident.
(d) Assault No. 4
The next incident occurred when Pauly’s mother and J.H.
went to the airport. Pauly told K.H. to take her pants off, and
then he lay on top of her and put his penis in her vagina. K.H.
also testified that on another occasion, Pauly told her to per-
form oral sex on him. K.H. could not recall how old she was
when this incident occurred.
(e) Motion for Directed Verdict
At the close of the State’s case, counsel for Pauly made an
oral motion for directed verdict. Counsel also made a “motion
to quash” for lack of jurisdiction. Counsel argued that pursuant
to Neb. Rev. Stat. §§ 43-246.01(1)(d) and 43-247(2) (Reissue
2016), the trial court lacked subject matter jurisdiction over
any allegations that occurred when Pauly was between 11 and
14 years old. The court denied the motion because “matters
such as [a] motion to quash, [a] constitutional challenge to
the face [of] the statute, or as it’s applied . . . are . . . waived
once we [start] the trial.” The court acknowledged that Pauly
may have a “very good argument [for appeal]” but that those
matters needed to be addressed in a pretrial hearing. Pauly
argued that he did not provide notice to the State because he
was not aware that the victim was going to testify that she may
have been 5 or 6 years old at the time of the offenses (which
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STATE v. PAULY
Cite as 311 Neb. 418would put Pauly under 14 years of age at the time). Aside
from the jurisdictional issue, the court overruled the motion
for directed verdict finding there was prima facie evidence of
penetration without consent and prima facie evidence regarding
whether Pauly knew or should have known that the victim was
incapable of resisting. After the motions were denied, Pauly
put on evidence by calling his mother as a witness.
(f ) Testimony of Pauly’s Mother
Pauly’s mother testified that when she would leave to pick
up her sister from the airport, she would always take both
K.H. and J.H. with her, and that she would never leave just
one of them at home. Pauly’s mother also testified that dur-
ing the time Pauly’s bedroom was located in the basement,
K.H. and J.H. were not allowed to go to the basement. Pauly’s
mother further testified that Pauly did not play video games
in his basement/bedroom because he did not have a television
or video game system down there. She also claimed that there
was “no way” Pauly could have closed and latched the base-
ment door because the door was too large for the doorframe
and would not shut.
(g) Jury Instructions and Verdict
Pauly requested the inclusion of two jury instructions regard-
ing the date when the alleged incidents occurred. The first pro-
posed jury instruction stated: “For each count, you must deter-
mine that the act took place on or after May 30, 2011. Source:
Neb. Rev. Stat. 43-261.01 [sic] and Neb. Rev. Stat. 43-247.”
The second proposed jury instruction stated:
The material elements of the crimes of four counts of
First degree sexual assault are:
1. The defendant did subject K.H. to sexual penetration
without consent of the victim, and/or when he knew or
should have known that the victim was mentally or physi-
cally incapable of resisting or appraising the nature of his
or her conduct.
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STATE v. PAULY
Cite as 311 Neb. 4182. The act took place on or after May 30, 2011 through
January 1, 2016.
3. The act took place in Sarpy County, Nebraska.
If you decide that the State proved each element beyond a
reasonable doubt, then you must find the defendant guilty.
Otherwise, you must find the defendant not guilty.
The court denied Pauly’s requested jury instructions and the
case was submitted to the jury, which found Pauly guilty on all
four counts of first degree sexual assault.
Pauly then made a motion for a judgment notwithstand-
ing the verdict, reasserting his jurisdictional argument under
§§ 43-246.01 and 43-247, and also arguing sufficiency of
the evidence. The court overruled the motion and ordered
Pauly to undergo a presentence investigation and a psycho-
sexual evaluation.
(h) Motion for New Trial
Pauly timely filed a motion for reconsideration and/or new
trial, arguing that the denial of his motion to quash, the denial
of his proposed jury instructions, and the denial of his motion
for judgment notwithstanding the verdict were all errors of law
that materially affected his substantial right to a fair trial. His
motion was largely based on his prior jurisdictional arguments
under §§ 43-246.01(1)(d) and 43-247. The court overruled the
motion for new trial.
2. Presentence Investigation Report
The presentence investigation report showed that Pauly had
no criminal record and that he had never been sentenced to
a term of probation or to a period of incarceration. Pauly
reported only one previous sexual encounter with his then-
girlfriend when they were in high school. Pauly admitted that
he has multiple social media accounts, but he denied ever
having a sexual conversation on any of those platforms. Pauly
was administered the “Vermont Assessment of Sex Offender
Risk-2,” which is used to assess recidivism risk among adult
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STATE v. PAULY
Cite as 311 Neb. 418males who have been convicted of at least one qualifying sex
offense. He scored in the “Low Risk Range,” which estimates a
recidivism rate of 2.6 percent in a period of 5 years. Pauly was
also administered the “Sex Offender Treatment Intervention
and Progress Scale,” which is used to assess risk, treatment,
supervision needs, and progress among adult male sex offend-
ers. Pauly was given a combined static and dynamic risk of
“Low,” with an estimated recidivism rate of 0.5 percent in a
1-year period and 1.4 percent in a 3-year period.
A clinical psychological evaluation concluded that Pauly
could be safely managed in the community with appropriate
safeguards. The evaluation recognized that Pauly was around
14 years of age at the time of the offenses and that since age 14,
Pauly has not engaged in any other known or reported forms of
sexual misconduct. According to the evaluation, Pauly does not
have a significant history of antisocial behaviors, of violence,
or of any other instances of sexual misconduct.
3. Sentencing
At sentencing, the State argued for a period of incarcera-
tion, while Pauly argued he was a good candidate for proba-
tion. In sentencing Pauly, the court referenced Neb. Rev. Stat.
§ 29-2204.02(6) (Reissue 2016), which states:
[I]f the defendant was under 18 years of age at the time
he or she committed the crime for which he or she is con-
victed, the court may, in its discretion, instead of impos-
ing the penalty provided for the crime, make such disposi-
tion of the defendant as the court deems proper under the
Nebraska Juvenile Code.
The court emphasized that Pauly was a juvenile at the time
he committed the offenses and that the juvenile code does not
permit incarceration.
The court acknowledged the severity of the crimes, but
also noted that it had to take into consideration the classifi-
cations under § 29-2204.02. The court further explained that
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STATE v. PAULY
Cite as 311 Neb. 418it considered all of the factors, including the circumstances
of the crimes; the history, character, and condition of the
defendant; the presentence investigation report; the statements
received; the letters from the victim’s family; and the State’s
recommendations.
Ultimately, the court sentenced Pauly to concurrent terms
of 5 years’ probation for each of his four convictions and
ordered him to register under the Sex Offender Registration
Act (SORA). The court also sentenced Pauly to serve 90 days
in jail, but gave him credit for the 120 days he already served.
The court further noted that because the State did not pursue
any determination pursuant to Neb. Rev. Stat. § 83-174.03(Cum. Supp. 2020), addressing community supervision, it
would make no finding regarding it.
The State requested and received the Attorney General’s
approval to appeal the sentences as excessively lenient pursu-
ant to Neb. Rev. Stat. §§ 29-2320 and 29-2321 (Reissue 2016).
Pauly cross-appeals. We moved this case to our docket on our
own motion.
III. ASSIGNMENTS OF ERROR
The State assigns, restated and consolidated, that the district
court erred by ordering excessively lenient sentences by (1)
sentencing Pauly to probation and (2) failing to find aggra-
vation under the SORA or, in the alternative, by committing
plain error by failing to make a finding of aggravation under
the SORA.
In his cross-appeal, Pauly assigns, restated, that the trial
court erred in (1) denying his motion for directed verdict, (2)
denying his motion to dismiss for lack of subject matter juris-
diction, and (3) refusing his proposed jury instruction regard-
ing the dates the alleged incidents occurred.
IV. STANDARD OF REVIEW
[1,2] When reviewing a sentence within the statutory lim-
its, whether for leniency or excessiveness, an appellate court
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STATE v. PAULY
Cite as 311 Neb. 418reviews for an abuse of discretion. 1 A judicial abuse of discre-
tion exists only when the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a sub-
stantial right and denying a just result in matters submitted
for disposition. 2
[3] In determining whether the district court erred in deny-
ing a party’s motion to dismiss for lack of subject matter
jurisdiction, an appellate court employs a de novo standard
of review. 3
[4] Whether jury instructions given by a trial court are cor-
rect is a question of law. 4 On a question of law, an appellate
court is obligated to reach a conclusion independent of the
determination reached by the court below. 5
[5,6] In reviewing a criminal conviction, an appellate court
does not resolve conflicts in the evidence, pass on the cred-
ibility of witnesses, or reweigh the evidence. 6 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. 7 When reviewing a criminal convic-
tion 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 pros-
ecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. 8
1
State v. Parminter, 283 Neb. 754, 811 N.W.2d 694 (2012).
2
Id.3
See Aldrich v. Nelson, 290 Neb. 167, 859 N.W.2d 537 (2015).
4
State v. Taylor, 262 Neb. 639, 634 N.W.2d 744 (2001).
5
See id.6
State v. Gartner, 263 Neb. 153, 638 N.W.2d 849 (2002).
7
Id.8
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STATE v. PAULY
Cite as 311 Neb. 418V. ANALYSIS
1. Jurisdiction
[7] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it. 9 Where a lower court
lacks subject matter jurisdiction to adjudicate the merits of
a claim, issue, or question, an appellate court also lacks the
power to determine the merits of the claim, issue, or question
presented to the lower court. 10
On cross-appeal, Pauly argues, in part, that the district court
erred in denying his motion to dismiss for lack of subject
matter jurisdiction. The essence of Pauly’s argument is that
§ 43-246.01(1)(d) grants a juvenile court exclusive original
jurisdiction over any person who commits a felony and was
under 14 years of age at the time of the offense. Therefore,
according to Pauly, the district court lacked jurisdiction over
any offenses that occurred prior to his 14th birthday.
[8,9] Absent a statutory indication to the contrary, words in
a statute will be given their ordinary meaning. 11 An appellate
court will not read anything plain, direct, or unambiguous out
of a statute. 12 A court must attempt to give effect to all parts
of a statute, and if it can be avoided, no word, clause, or sen-
tence will be rejected as superfluous or meaningless. 13 A court
must place on a statute a reasonable construction which best
achieves the statute’s purpose, rather than a construction which
would defeat that purpose. 14
9
Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147(2017).
10
Id.11
State v. Parks, 282 Neb. 454, 803 N.W.2d 761 (2011).
12
Id.13
Id.14
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Nebraska Supreme Court Advance Sheets
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STATE v. PAULY
Cite as 311 Neb. 418Under Neb. Rev. Stat. § 24-302 (Reissue 2016), the district
court has original jurisdiction in all matters “except where
other­wise provided.” Subsection (2) of § 43-247 grants juris-
diction to the juvenile court over any juvenile who committed a
felonious act and who was 11 years of age or older at the time
the act was committed. Subsection (12) of § 43-247 also grants
continuing jurisdiction to the juvenile court over “any indi-
vidual adjudged to be within the provisions of this section until
the individual reaches the age of majority or the court other-
wise discharges the individual from its jurisdiction.” (Emphasis
supplied.) Section 43-246.01(3)(c) further grants concurrent
jurisdiction to the district court and the juvenile court as to
any juvenile described in Neb. Rev. Stat. § 29-1816(1)(a)(ii)
(Reissue 2016), which section includes an “accused [who] was
younger than eighteen years of age and [who] was fourteen
years of age or older when an alleged offense punishable as a
Class I, IA, IB, IC, ID, II, or IIA felony was committed.” For
purposes of the Nebraska Juvenile Code, “[a]ge of majority
means nineteen years of age” and “[j]uvenile means any person
under the age of eighteen.” 15
The common denominator of the preceding statutes is the
use of the word “juvenile.” Thus, when read together, these
statutes support a determination that the juvenile court could
not have exercised jurisdiction over the matter because Pauly
was not a juvenile at the time he was charged.
Such a determination is consistent with the purpose of the
juvenile code, which is to serve the best interests of the juve-
niles who fall within it. 16 This is also consistent with our prior
holding that the juvenile court’s jurisdiction ends when the
juvenile reaches the age of majority, but the district court’s
jurisdiction continues. 17
15
Neb. Rev. Stat. § 43-245(2) and (11) (Reissue 2016).
16
See, generally, In re Interest of Veronica H., 272 Neb. 370, 721 N.W.2d
651 (2006).
17
State v. Parks, supra note 11.
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STATE v. PAULY
Cite as 311 Neb. 418In State v. Parks, 18 a 24-year-old defendant was charged
with first degree sexual assault on a child stemming from
alleged offenses that occurred when the defendant was between
14 and 15 years old. In affirming the district court’s denial of
defendant’s motion to transfer his case to juvenile court, we
concluded that a juvenile court does not have jurisdiction over
a person who has reached the age of majority. The mere fact
that the defendant was a juvenile at the time he or she commit-
ted the offenses does not automatically give the defendant the
right to be tried as a juvenile. 19
Put differently, whether the juvenile court has jurisdiction
over a person is determined not by the person’s age at the
time of the offense, but, rather, by the person’s age at the
time he or she is charged for the offense. Thus, §§ 43-246.01,
43-247, and 29-1816 are not applicable in this case because
Pauly had surpassed the age of majority and was no longer
a juvenile at the time he was charged. Therefore, the district
court had original jurisdiction over the case and did not err in
over­ruling Pauly’s motion to quash/dismiss for lack of subject
matter jurisdiction.
On cross-appeal, Pauly also argues the district court erred
in refusing his proposed jury instructions regarding his age
at the time of the offenses. Pauly contends that the instruc-
tions were necessary because if the jury determined that he
was under 14 years of age at the time of the offenses, the
district court would have no jurisdiction over the matter. In
support of these proposed instructions, Pauly cited Neb. Rev.
Stat. § 43-261.01 (Cum. Supp. 2020) and § 43-247. We take
a moment to note that although Pauly cited § 43-261.01, it
appears Pauly intended to cite § 43-246.01, which addresses
juvenile court jurisdiction. However, as explained above,
because Pauly was not a juvenile at the time he was charged,
18
Id.
19
Id.
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STATE v. PAULY
Cite as 311 Neb. 418the juvenile court could not have exercised jurisdiction over
the matter. Therefore, §§ 43-246.01 and 43-247 are not appli-
cable in this case and the district court did not err in refusing
Pauly’s proposed jury instructions. This assignment of error is
without merit.
2. Excessively Lenient Sentences
(a) Legally Permissible Sentences
All crimes in Nebraska are statutory in nature. 20 Sentences
imposed upon persons convicted of a crime are also statutory. 21
Thus, in order to resolve the question of whether the district
court erred in sentencing Pauly to concurrent terms of 5 years’
probation for each of his four Class II felony convictions, it is
necessary to examine the Nebraska statutes pertaining to crimi-
nal penalties and eligibility for probation.
Section 29-2204.02(6) provides sentencing guidelines for
Class III, IIIA, and IV felonies, and it allows a court to, in its
discretion, sentence a juvenile under the juvenile code instead
of imposing the penalty provided for the crime. Neb. Rev. Stat.
§ 29-2204 (Reissue 2016) likewise gives the sentencing court
the same authority over felonies other than Class III, IIIA, or
IV felonies. At sentencing, the district court cited § 29-2204.02
as giving it the authority to sentence Pauly to a term of proba-
tion, even though Pauly was convicted of four Class II ­felonies.
Even if the district court had instead cited § 29-2204, it would
not have impacted our analysis because regardless, the dis-
trict court lacked the authority to sentence Pauly under the
juvenile code because Pauly was not a juvenile at the time he
was charged.
[10] Nevertheless, the district court was statutorily autho-
rized to sentence Pauly to terms of probation under Neb. Rev.
Stat. § 29-2260 (Reissue 2016). When the record demonstrates
20
State v. Hamik, 262 Neb. 761, 635 N.W.2d 123 (2001).
21
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STATE v. PAULY
Cite as 311 Neb. 418that the decision of the trial court is correct, although such cor-
rectness is based on different grounds from those assigned by
the trial court, an appellate court will affirm. 22
Under Neb. Rev. Stat. § 28-105 (Cum. Supp. 2020), first
degree sexual assault is a Class II felony, punishable by impris-
onment for 1 to 50 years, but with no mandatory minimum.
Subsection (4) of § 28-105 further provides that “[a] person
convicted of a felony for which a mandatory minimum sen-
tence is prescribed shall not be eligible for probation.” In State
v. Hamik, 23 the defendant was convicted of first degree sexual
assault and sentenced to a term of probation. In agreeing with
the defendant that he was eligible for probation, we stated that
§ 28-105(4) is not applicable to a defendant who is convicted
of a Class II felony, for which the law prescribes a minimum
term of incarceration, because a “minimum” sentence is not
equivalent to a “mandatory minimum” sentence, as that term
is used in the statute. To equate a “minimum” sentence with
a “mandatory minimum” sentence would be contrary to our
established principles of statutory interpretation. 24 In arriv-
ing at that conclusion, we also relied on § 29-2260(2), which
allows a district court to impose a period of probation in lieu
of incarceration upon its assessment of certain criteria set forth
therein. Section 29-2260(2) provides:
Whenever a court considers sentence for an offender
convicted of either a misdemeanor or a felony for which
mandatory or mandatory minimum imprisonment is not
specifically required, the court may withhold sentence
of imprisonment unless, having regard to the nature and
circumstances of the crime and the history, character, and
condition of the offender, the court finds that imprison-
ment of the offender is necessary for protection of the
public because:
22
State v. Alarcon-Chavez, 295 Neb. 1014, 893 N.W.2d 706 (2017).
23
State v. Hamik, supra note 20.
24
See id. See, also, State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).
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Cite as 311 Neb. 418(a) The risk is substantial that during the period of
probation the offender will engage in additional crimi-
nal conduct;
(b) The offender is in need of correctional treatment
that can be provided most effectively by commitment to a
correctional facility; or
(c) A lesser sentence will depreciate the seriousness of
the offender’s crime or promote disrespect for law.
Similar to the defendant in Hamik, here, Pauly was convicted
of the crime of first degree sexual assault, a Class II felony, for
which the law prescribes a minimum sentence, but no manda-
tory minimum. Thus, Pauly was eligible to be sentenced to a
term of probation for that crime in lieu of incarceration.
(b) Excessive Leniency
[11] Having concluded that probation was a legally permis-
sible sentence, we turn to the question of whether Pauly’s
sentences were excessively lenient under the facts reflected in
the record. When the State appeals from a sentence, contending
that it is excessively lenient, this court reviews the record for
an abuse of discretion, and a grant of probation will not be dis-
turbed unless there has been an abuse of discretion by the sen-
tencing court. 25 A sentence imposed by a district court that is
within the statutorily prescribed limits will not be disturbed on
appeal unless there appears to be an abuse of the trial court’s
discretion. 26 An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. 27
Neb. Rev. Stat. § 29-2322 (Reissue 2016) provides that
where the State challenges a sentence as excessively lenient,
the appellate court should consider:
25
State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019).
26
Id.27
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Cite as 311 Neb. 418(1) The nature and circumstances of the offense;
(2) The history and characteristics of the defendant;
(3) The need for the sentence imposed;
(a) To afford adequate deterrence to criminal conduct;
(b) To protect the public from further crimes of the
defendant;
(c) To reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense; and
(d) To provide the defendant with needed educational
or vocational training, medical care, or other correctional
treatment in the most effective manner; and
(4) Any other matters appearing in the record which the
appellate court deems pertinent.
In State v. Harrison, 28 we recognized that where the sentence
alleged to be excessively lenient is one of probation, it is also
necessary for the trial court and the reviewing appellate court
to consider the provisions of § 29-2260(2), which we outlined
above, along with subsections (3) and (4), which provide:
The following grounds, while not controlling the discre-
tion of the court, shall be accorded weight in favor of
withholding sentence of imprisonment:
(a) The crime neither caused nor threatened seri-
ous harm;
(b) The offender did not contemplate that his or her
crime would cause or threaten serious harm;
(c) The offender acted under strong provocation;
(d) Substantial grounds were present tending to excuse
or justify the crime, though failing to establish a defense;
(e) The victim of the crime induced or facilitated com-
mission of the crime;
(f ) The offender has compensated or will compensate
the victim of his or her crime for the damage or injury the
victim sustained;
28
State v. Harrison, 255 Neb. 990, 588 N.W.2d 556 (1999).
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Cite as 311 Neb. 418(g) The offender has no history of prior delinquency
or criminal activity and has led a law-abiding life for
a substantial period of time before the commission of
the crime;
(h) The crime was the result of circumstances unlikely
to recur;
(i) The character and attitudes of the offender indicate
that he or she is unlikely to commit another crime;
(j) The offender is likely to respond affirmatively to
probationary treatment; and
(k) Imprisonment of the offender would entail exces-
sive hardship to his or her dependents.
(4) When an offender who has been convicted of a
crime is not sentenced to imprisonment, the court may
sentence him or her to probation.
We agree with the State’s assessment of the severity of the
crimes committed by Pauly. However, based on the evidence
pertaining to the numerous other relevant factors under the
district court’s consideration at sentencing, we cannot conclude
that Pauly’s sentences were untenable, unreasonable, or clearly
against justice or conscience, reason, and evidence.
[12,13] While certain guidelines are set forth by statute, nei-
ther the trial court’s sentencing determination nor our review
of that determination for an abuse of discretion is formulaic
or simply a matter of doctrine. 29 The sentencing court is not
limited in its discretion to any mathematically applied set of
factors. 30 The appropriateness of a sentence is necessarily a
subjective judgment and includes the sentencing judge’s obser-
vation of the defendant’s demeanor and attitude and all the
facts and circumstances surrounding the defendant’s life. 31
It is not the function of an appellate court to conduct a de novo
29
State v. Gibson, supra note 25.
30
Id.31
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Cite as 311 Neb. 418review of the record to determine whether a sentence is appro-
priate. 32 Put differently, the standard is not what sentence we
would have imposed. 33
These were very serious crimes with an egregious set of
facts. Still, the seriousness of the crimes committed against
K.H., which weighs in favor of imprisoning Pauly, does not,
by itself, lead to the conclusion that the district court abused
its discretion in sentencing Pauly to concurrent terms of 5
years’ probation for each conviction in lieu of incarcera-
tion. Although the seriousness of these crimes is not lost on
this court, a sentence should fit the offender and not merely
the crime. 34
In State v. Gibson, 35 we recently considered a sentence of
probation in lieu of incarceration for a conviction of a Class
II felony. In that case, the defendant pled guilty to attempted
first degree sexual assault of a child and was sentenced to 180
days’ incarceration and 5 years’ probation. The defendant was
also subject to SORA. In finding that the defendant’s sentence
of probation was not excessively lenient, we recognized other
cases involving Class II felonies of first degree sexual assault
and sexual assault of a child, where a sentence of 5 years’ pro-
bation with strict and demanding terms had been found to not
be excessively lenient where the defendants were considered
to be neither pedophiles nor sexual predators, had generally
otherwise been law-abiding citizens, were remorseful, and
were at a low risk to offend. 36 In finding that the sentence of
probation in Gibson was not excessively lenient, we empha-
sized that the presentence investigation report demonstrated
32
Id.33
Id.34
Id.35
Id.36
Id. (citing State v. Antoniak, 16 Neb. App. 445, 744 N.W.2d 508 (2008),
and State v. Thompson, 15 Neb. App. 764, 735 N.W.2d 818 (2007)).
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Cite as 311 Neb. 418that the defend­ant led an exemplary life, had no criminal
record, and was at a low risk to reoffend.
Like the defendant in Gibson, here, the presentence investi-
gation report demonstrates that Pauly does not have a criminal
record and is at a low risk to reoffend. Further, the psycho­
logical evaluation concluded that Pauly does not have a signifi-
cant history of antisocial behaviors, of violence, or of any other
instances of sexual misconduct. Additionally, Pauly was around
14 years old at the time he committed these offenses.
To the extent the State contends the district court gave
improper consideration to Nebraska’s juvenile jurisdiction stat-
utes, we disagree. Although the juvenile jurisdiction statutes
are not applicable here, Pauly’s age at the time the offenses
were committed was a relevant and proper factor for the dis-
trict court to consider as it goes directly to the nature and
circumstances of the offense, as well as to the history and char-
acteristics of the defendant. 37
[14] While there is temptation on a visceral level to con-
clude that anything less than incarceration depreciates the seri-
ousness of crimes, it is the function of the sentencing judge,
in the first instance, to evaluate the crime and the offender. 38
Evidence regarding a defendant’s life, character, and previous
conduct, as well as prior convictions, is highly relevant to the
determination of a proper sentence. 39
The sentences imposed by the district court were lenient,
but we cannot conclude that the court abused its discretion
by issuing sentences that were excessively lenient. In light
of all the relevant sentencing considerations, the sentences
were not untenable, unreasonable, or clearly against justice
or conscience, reason, and evidence. Therefore, because the
37
See § 29-2322(1) and (2).
38
State v. Gibson, supra note 25.
39
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Cite as 311 Neb. 418district court did not impose excessively lenient sentences, this
assignment of error is without merit.
(c) SORA
[15] It is undisputed that as a result of his convictions for
first degree sexual assault, Pauly is subject to SORA. SORA is
a civil regulatory scheme intended by the Legislature to protect
the public from the danger posed by sex offenders. 40 Generally,
SORA requires individuals that plead guilty to or are convicted
of certain enumerated offenses to register with the county sher-
iff in the counties where they reside, work, and attend school. 41
Pauly was convicted of four counts of first degree sexual
assault under § 28-319, which convictions make him subject to
SORA’s requirements. 42
Those persons to whom SORA requirements apply generally
must register “during any period of supervised release, proba-
tion, or parole” and then must continue to comply with SORA
for a registration period following “discharge from probation,
parole, or supervised release or release from incarceration,
whichever date is most recent.” 43 Neb. Rev. Stat. § 29-4005(1)
(Reissue 2016) sets forth three different registration periods.
Relevant to this appeal, the registration period is for life if the
offender was convicted of a registrable offense punishable by
imprisonment for more than 1 year and was convicted of an
aggravated offense. 44
SORA defines an “[a]ggravated offense” as
[a]n offense under [§] 29-4003 which involves the pen-
etration of, direct genital touching of, oral to anal contact
40
State v. Wilson, 306 Neb. 875, 947 N.W.2d 704 (2020).
41
Id. (citing State v. Ratumaimuri, 299 Neb. 887, 911 N.W.2d 270 (2018)).
See, generally, Neb. Rev. Stat. § 29-4004 (Reissue 2016).
42
See Neb. Rev. Stat. § 29-4003(1)(a)(i)(C) (Cum. Supp. 2020).
43
Neb. Rev. Stat. § 29-4005(1)(a) (Reissue 2016).
44
§ 29-4005(1)(b)(iii).
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Cite as 311 Neb. 418with, or oral to genital contact with (a) a victim age thir-
teen years or older without the consent of the victim, (b)
a victim under the age of thirteen years, or (c) a victim
who the sex offender knew or should have known was
mentally or physically incapable of resisting or appraising
the nature of his or her conduct. 45
The State argues the district court erred by failing to make
a finding of aggravation. In response, Pauly asserts the State’s
argument is moot because he was, in fact, directed by the
Nebraska State Patrol to register under SORA for life.
[16,17] Mootness refers to events occurring after the filing
of a suit which eradicate the requisite personal interest in the
resolution of the dispute that existed at the beginning of the
litigation. 46 A moot case is one which seeks to determine a
question that no longer rests upon existing facts or rights—i.e.,
a case in which the issues presented are no longer alive. 47 The
central question in a mootness analysis is whether changes in
circumstances that prevailed at the beginning of litigation have
forestalled any occasion for meaningful relief. 48
In its reply brief, the State concedes the issue is moot if
the Nebraska State Patrol “is the proper agency to make this
[duration] determination.” 49 Prior to statutory amendments to
SORA in 2009, there was no question that a sentencing court
was to make a determination as to whether a registrable offense
under SORA rose to the level of an aggravated offense. 50 Prior
to 2009, that authority was made clear by a provision within
SORA that expressly directed sentencing courts to make the
45
Neb. Rev. Stat. § 29-4001.01 (Reissue 2016).
46
Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012).
47
Id.48
Id.49
Reply brief for appellant at 9.
50
See State v. Wilson, supra note 40. See, also, State v. Hamilton, 277 Neb.
593, 763 N.W.2d 731 (2009).
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Cite as 311 Neb. 418finding of an aggravated offense part of the sentencing order. 51
However, the 2009 amendments to SORA removed this provi-
sion from the statute. 52
Then, in State v. Wilson, 53 a sentencing court found that the
defendant had committed an aggravated offense, pursuant to
his conviction for first degree sexual assault, and stated that
the defendant was required to register under SORA for life.
On appeal, the State argued that pursuant to the 2009 SORA
amendments, the Nebraska State Patrol was now responsible
for making the aggravation determination, while the defendant
argued that sentencing courts must make that determination.
In support of its argument, the State pointed to Neb. Rev. Stat.
§ 29-4013(5) (Reissue 2016), which provides that certain offi-
cials within the State Patrol “shall have access to all documents
that are generated by any governmental agency that may have
bearing on sex offender registration and community notifica-
tion.” Section 29-4013(5) also provides that “[a]ccess to such
documents will ensure that a fair determination of what is an
appropriate registration period is completed using the totality
of all information available.”
This court cautioned that it was difficult to reconcile the
State’s position with the provision of SORA providing that
when sentencing a person for a registrable offense under
SORA, the court has a duty to provide the defendant with
written notification of the duty to register, and that the written
notification shall, among other things, inform the defendant of
“the duration of time he or she will be subject to the act.” 54
We declined to reconcile §§ 29-4013(5) and 29-4007(1)(a)(i)
and declined to decide whether a sentencing court meets its
51
See § 29-4005(2) (Reissue 2008).
52
Compare § 29-4005(2) (Reissue 2008), with § 29-4005 (Reissue 2016).
See, also, 2009 Neb. Laws, L.B. 285, § 6.
53
See State v. Wilson, supra note 40.
54
Neb. Rev. Stat. § 29-4007(1)(a)(i) (Cum. Supp. 2020).
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Cite as 311 Neb. 418obligation under § 29-4007(1)(a)(i) by providing the defendant
with only a range of possible registration periods. 55 Instead,
we found it sufficient to hold that a sentencing court has the
authority to find that the defendant committed an aggravated
offense and that the State Patrol lacks the authority to subse-
quently make a different determination. 56
The instant case again asks this court to determine the scope
of the State Patrol’s authority under SORA, but doing so is
unnecessary. The parties agree that Pauly is subject to lifetime
registration under SORA, and as such, the issue is moot.
3. Cross-Appeal
(a) Brief on Cross-Appeal
[18,19] Generally, parties who wish to secure appellate
review of their claims must abide by the rules of the Nebraska
Supreme Court. 57 Any party who fails to properly identify and
present its claim does so at its own peril. 58 Depending on the
particulars of each case, failure to comply with the mandates
of Neb. Ct. R. App. P. § 2-109(D) (rev. 2022) may result in an
appellate court’s waiving the error, proceeding on a plain error
review only, or declining to conduct any review at all. 59
A cross-appeal must be properly designated, pursuant to
§ 2-109(D)(4), if affirmative relief is to be obtained. 60 A
cross-appeal is properly designated by noting it on the cover
of the appellee brief and setting it forth in a separate division
of the brief. 61 This separate section “shall be headed ‘Brief
55
See State v. Wilson, supra note 40.
56
Id.57
Great Northern Ins. Co. v. Transit Auth. of Omaha, 308 Neb. 916, 958
N.W.2d 378 (2021), disapproved on other grounds, Clark v. Sargent Irr.
Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).
58
Id.59
Id.60
Id.61
Id. See § 2-109(D)(4).
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Cite as 311 Neb. 418on Cross-Appeal’ and shall be prepared in the same manner
and under the same rules as the brief of appellant.” 62 Under
§ 2-109(D)(1), the brief of appellant must include, in part, (1)
a statement of the basis of jurisdiction, (2) a statement of the
case, (3) a separate assignment of errors section, (4) proposi-
tions of law, (5) a statement of facts, (6) a summary of the
argument, and (7) the argument.
Here, Pauly’s cross-appeal fails to fully abide with the rules
for the brief of an appellant because his brief on cross-appeal
fails to set forth a separate (1) statement of the basis of jurisdic-
tion on cross-appeal, (2) statement of the case on cross-appeal,
(3) assignments of error on cross-appeal, (4) propositions of
law on cross-appeal, (5) statement of facts on cross-appeal,
and (6) summary of the argument on cross-appeal. The decisive
particulars governing how we treat failures to fully abide with
the rules for the brief of an appellant depend on the nature of
the noncompliance. 63 In this appeal, we elect to proceed to
review for plain error.
[20] Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judicial
process. 64 As we have already addressed Pauly’s assignments
of error regarding his motion to quash/dismiss and his pro-
posed jury instructions, the only remaining assignment of error
is the court’s overruling of his motion for directed verdict.
(b) Motion for Directed Verdict
Pauly assigns the district court erred in denying his motion
for directed verdict at the conclusion of the State’s case.
However, after his motion for directed verdict was denied,
Pauly called his mother to the stand to testify on his behalf. A
defendant who moves for a directed verdict at the close of the
62
§ 2-109(D)(4).
63
See Great Northern Ins. Co. v. Transit Auth. of Omaha, supra note 57.
64
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Cite as 311 Neb. 418evidence 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 a directed verdict, but
may challenge sufficiency of the evidence for the defendant’s
conviction. 65 As such, there is no plain error supporting this
assignment of error.
Pauly also argues that the court erred in overruling his
motion for a directed verdict because the prosecution presented
insufficient evidence to warrant his convictions. He asserts that
there were numerous discrepancies in K.H.’s testimony, that no
other witnesses could corroborate K.H.’s claims, that there was
contradictory testimony from other witnesses, that there was
a lack of physical evidence to support K.H.’s claims, and that
there was overall uncertainty surrounding K.H.’s claims.
Regardless of whether the evidence is direct, circumstantial,
or a combination thereof, and regardless of whether the issue
is labeled as a failure to direct a verdict, insufficiency of the
evidence, or failure to prove a prima facie case, the standard
is the same: In reviewing a criminal conviction, an appellate
court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction. 66
Accordingly, we will not review the credibility of K.H. or
any of the other witnesses, resolve the conflicts in K.H.’s tes-
timony, or reweigh the evidence of Pauly’s guilt; these were
determinations appropriate only for the trier of fact. 67 K.H.
65
State v. Gartner, supra note 6.
66
State v. Jedlicka, 297 Neb. 276, 900 N.W.2d 454 (2017).
67
See id.- 444 -
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Cite as 311 Neb. 418testified that Pauly sexually assaulted her on four separate
occasions. Along with the other evidence admitted at trial, all
viewed in favor of the State, there was sufficient evidence for
a rational jury to find beyond a reasonable doubt that Pauly
was guilty of four counts of first degree sexual assault. We
find no plain error in the district court’s finding of prima facie
evidence to deny Pauly’s motion for a directed verdict. This
assignment of error is without merit.
VI. CONCLUSION
For the foregoing reasons, we affirm Pauly’s convictions
and sentences.
Affirmed.