State v. Samayoa

- 334 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
State of Nebraska, appellee, v.
M axiliamo Cano Samayoa, appellant.
___ N.W.2d ___
Filed December 31, 2015. No. S-14-762.
1. Criminal Law: Evidence: Appeal and Error. In reviewing a suffi-
ciency of the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same: An appellate
court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for the finder
of fact. 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 reason-
able doubt.
2. Appeal and Error. An appellate court always reserves the right to note
plain error which was not complained of at trial or on appeal.
3. Rules of Evidence: Appeal and Error. When 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. When judicial discretion is not a factor, whether
the underlying facts satisfy the legal rules governing the admissibility of
such evidence is a question of law, subject to de novo review.
4. Appeal and Error. To the extent issues of law are presented, an appel-
late court has an obligation to reach independent conclusions irrespec-
tive of the determinations made by the court below.
5. Criminal Law: Statutes. It is a fundamental principle of statutory con-
struction that penal statutes be strictly construed.
6. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
7. Trial: Appeal and Error. On appeal, a defendant may not assert a dif-
ferent ground for his objection than was offered at trial.
8. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
- 335 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
9. Criminal Law: Statutes: Time. The exact time when a criminal offense
is committed is not an essential element of a crime unless the statute
defining the offense makes a date or time an indispensable element of
the crime charged.
Appeal from the District Court for Scotts Bluff County:
R andall L. Lippstreu, Judge. Affirmed as modified.
Bernard J. Straetker, Scotts Bluff County Public Defender,
for appellant.
Douglas J. Peterson, Attorney General, and Kimberly A.
Klein for appellee.
Heavican, C.J., Wright, Connolly, McCormack, Miller-
Lerman, and Cassel, JJ.
Wright, J.
I. NATURE OF CASE
Maxiliamo Cano Samayoa (Cano) appeals his convictions
on one count of third degree sexual assault of a child and
three counts of first degree sexual assault of a child at least
12 years of age but less than 16 years of age. He argues that
the evidence was insufficient to support his convictions. He
also assigns that the district court erred in admitting certain
testimony and in advising the jury that with respect to count I,
“[t]he exact time when a criminal offense is committed is not
an essential element of the crime.” We affirm as modified.
II. SCOPE OF REVIEW
[1] In reviewing a sufficiency of the evidence claim,
whether the evidence is direct, circumstantial, or a combina-
tion thereof, the standard is the same: An appellate court does
not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact. State v. Dominguez, 290 Neb. 477, 860 N.W.2d
- 336 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
732 (2015). 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. Id.
[2] An appellate court always reserves the right to note plain
error which was not complained of at trial or on appeal. State
v. Robinson, 271 Neb. 698, 715 N.W.2d 531 (2006). Plain
error may be found on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and
fairness of the judicial process. State v. Howell, 284 Neb. 559,
822 N.W.2d 391 (2012).
[3] When the Nebraska Evidence Rules commit the eviden-
tiary question at issue to the discretion of the trial court, an
appellate court reviews the admissibility of evidence for an
abuse of discretion. State v. Dominguez, supra. When judicial
discretion is not a factor, whether the underlying facts satisfy
the legal rules governing the admissibility of such evidence is
a question of law, subject to de novo review. State v. Parker,
276 Neb. 661, 757 N.W.2d 7 (2008).
[4] To the extent issues of law are presented, an appellate
court has an obligation to reach independent conclusions irre-
spective of the determinations made by the court below. State
v. Merheb, 290 Neb. 83, 858 N.W.2d 226 (2015).
III. FACTS
1. Background
The victim in this case, P.L., is Cano’s niece. P.L.’s mother
and Cano’s wife are sisters. Cano was born in May 1981. P.L.
was born in December 1997.
In February 2014, P.L. told her parents that Cano had been
sexually assaulting her for some time. Her parents reported the
allegations to the police and took P.L. to be interviewed at a
child advocacy center in Scottsbluff, Nebraska. The contents
of the interview are not contained in our record.
- 337 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
2. Charges
After P.L.’s interview, the police arrested Cano. He was
charged with one count of third degree sexual assault of a
child (count I) for subjecting P.L. “to sexual contact, not
causing serious personal injury” during “the year 2008.” He
was also charged with three counts of first degree sexual
assault of a child at least 12 years of age but less than 16
years of age. Count II alleged that “on or about October,
2012 through November, 2012,” Cano committed first degree
sexual assault of a child by subjecting P.L. “to sexual penetra-
tion.” Counts III and IV were identical to count II, except
that they alleged the sexual penetration occurred “on or about
December, 2012,” and “during the years 2010 or 2011,”
respectively. Cano pleaded not guilty to all four counts, and a
jury trial was scheduled.
3. Trial
(a) P.L.’s Testimony
The State’s principal witness at trial was P.L. She described
in detail four incidents between her and Cano. Each incident
corresponded to a count in the information.
P.L. testified that the first incident (count I) occurred in
the living room of Cano’s house while her mother and aunt
were out picking up pizza. P.L. stated that Cano approached
her while she was lying on the couch watching television, sat
down next to her, and started “[r]ubbing” her “butt” with his
hands. He also exposed his penis to her, grabbed her hand,
and made her hand touch his penis. Although P.L. could not
identify the exact date when this happened, she testified that
it occurred sometime after she started seventh grade in August
2010 but before the birth of Cano’s youngest daughter in
July 2012.
The second incident between P.L. and Cano (count IV)
occurred while she was painting the trim in her bedroom. P.L.
testified that Cano entered her bedroom and forced her to per-
form oral sex on him. P.L. could not identify the exact date
when this second incident happened. However, she testified
- 338 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
that it occurred after she and her family moved into their
house on 12th Avenue in Scottsbluff but before 2012. She fur-
ther stated that they moved into the 12th Avenue house while
she was in eighth grade and that she started eighth grade in
August 2011.
P.L. testified that the third incident (count II) happened in
the kitchen at Cano’s house. She said that he followed her
into the kitchen when she went to get a drink, “pushe[d] [her]
toward the seat,” and “pull[ed] [her] down.” P.L. “told him
no.” But he “told [her] to suck it again” and positioned her
head to perform oral sex, which she did. At various times,
P.L. testified that this occurred in “the year 2012,” before her
youngest cousin was born in July 2012 and before the final
incident in February 2012.
P.L. testified that the fourth and final incident (count III)
occurred in February 2012 while she was “putting lights up in
[her] room.” She described how Cano “pushe[d] [her] on the
bed,” “pull[ed] down his pants again,” and told her to perform
oral sex. On this occasion, Cano also pulled P.L.’s pants down
and attempted to insert his penis into her vagina. P.L. testi-
fied that his penis “didn’t go all the way” but “just touched”
her vagina.
In addition to these four incidents, P.L. also briefly testified,
over Cano’s objection, to a fifth encounter. Because the admis-
sibility of this testimony is raised on appeal, we reproduce the
relevant exchange in full:
[Prosecutor:] Can you estimate when this happened,
this incident that you’re talking about on 12th Avenue in
the kitchen?
[P.L.:] Like, close to two years now.
[Prosecutor:] Okay. Was there another time when this
happened?
[P.L.:] Before that when [Cano] lived on 12th and I
was in [his oldest daughter’s] room and I was picking up
the toys and they were on the —
[Cano’s attorney]: I’m going to object to materiality on
one of the charges.
- 339 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
THE COURT: Overruled.
[Prosecutor:] Go ahead.
[P.L.:] Then I was in there and he just comes in and he
just rubs me again from the back, then he just leaves.
(b) Cano’s Testimony
Cano testified in his own behalf. He denied the allegations
against him, and he specifically testified that he had never been
alone with P.L. Cano also stated that in 2008, when the infor-
mation alleged count I occurred, he was living in Texas.
(c) Motions for Directed Verdict
At the conclusion of the State’s evidence and again at the end
of the evidence portion of the trial, Cano moved for a directed
verdict on counts I through III. He argued that the dates alleged
in those counts were inconsistent with the State’s evidence.
Specifically, he argued that (1) the information alleged count I
happened in 2008 but that the evidence showed Cano was liv-
ing in Texas in 2008 and (2) the information alleged counts II
and III occurred between October and December 2012 but that
P.L. testified all of the incidents with Cano occurred while she
was in seventh or eighth grade—that is, between August 2010
and May 2012. On both occasions, the district court overruled
Cano’s motion for a directed verdict.
(d) Jury Instructions
The district court instructed the jury on the elements of each
crime charged and on the State’s duty to prove these elements
beyond a reasonable doubt. In the case of each count, one of
the elements listed was that Cano engaged the underlying con-
duct at the time alleged in the information.
(e) Question From Jury
During deliberations, the jury submitted the following ques-
tion to the judge: “Is the date of 2008 and [sic] exact stipu-
lation to the account [sic], and if so can we convict on this
account [sic] if we believe the event happened but not on that
date on account [sic?]” The parties argue, and we agree, that
- 340 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
this question related only to count I of the information, which
alleged that Cano committed third degree sexual assault of a
child “[d]uring the year 2008 . . . .”
After consulting with counsel, the district court advised the
jury that “[t]he exact time when a criminal offense is commit-
ted is not an essential element of the crime.” The court did so
over Cano’s objection.
4. Verdicts and Sentencing
The jury returned verdicts of guilty on all counts, and the
district court entered judgment accordingly. The court sen-
tenced Cano to 1 to 3 years’ imprisonment on the third degree
sexual assault of a child conviction and concurrent terms of
35 to 40 years’ imprisonment for each first degree sexual
assault of a child conviction. At the sentencing hearing, the
court stated that first degree sexual assault of a child carried
a mandatory minimum of 25 years’ imprisonment. But in the
sentencing order, the court stated that the mandatory minimum
was 15 years’ imprisonment.
Cano timely appeals. Pursuant to our statutory authority to
regulate the dockets of the appellate courts of this state, we
moved the case to our docket. See Neb. Rev. Stat. § 24-1106(3)
(Reissue 2008).
IV. ASSIGNMENTS OF ERROR
Cano argues that the evidence was insufficient to support
his convictions. He also assigns that the district court erred in
admitting evidence of other bad acts or uncharged conduct, in
violation of Neb. Rev. Stat. § 27-404(2) (Cum. Supp. 2014),
and in advising the jury that the exact time of the commission
of the offense alleged in count I was not an essential element
of the crime of third degree sexual assault of a child.
V. ANALYSIS
1. Sufficiency of Evidence
Cano argues that there was insufficient evidence to sustain
his convictions. In reviewing a sufficiency of the evidence
- 341 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
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. State v. Dominguez, 290 Neb. 477,
860 N.W.2d 732 (2015). The relevant question for an appellate
court is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt. Id.
(a) Essential Elements
[5,6] Cano was charged with three counts of first degree
sexual assault of a child at least 12 years of age but less than
16 years of age and one count of third degree sexual assault
of a child. The essential elements of these crimes are estab-
lished by statute. It is a fundamental principle of statutory
construction that penal statutes be strictly construed. State v.
Smith, 282 Neb. 720, 806 N.W.2d 383 (2011). It is not within
the province of the courts to read a meaning into a statute
that is not there or to read anything direct and plain out of a
statute. State v. Medina-Liborio, 285 Neb. 626, 829 N.W.2d
96 (2013).
The crime of first degree sexual assault of a child at least
12 years of age but less than 16 years of age is defined by
Neb. Rev. Stat. § 28-319.01(1) (Cum. Supp. 2014), which
provides:
A person commits sexual assault of a child in the first
degree:
....
(b) When he or she subjects another person who is at
least twelve years of age but less than sixteen years of age
to sexual penetration and the actor is twenty-five years of
age or older.
For purposes of this statute,
[s]exual penetration means sexual intercourse in its ordi-
nary meaning, cunnilingus, fellatio, anal intercourse, or
- 342 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
any intrusion, however slight, of any part of the actor’s or
victim’s body or any object manipulated by the actor into
the genital or anal openings of the victim’s body which
can be reasonably construed as being for nonmedical or
nonhealth purposes. Sexual penetration shall not require
emission of semen.
Neb. Rev. Stat. § 28-318(6) (Cum. Supp. 2014). Fellatio is
“oral stimulation of the penis.” See State v. Bruna, 12 Neb.
App. 798, 830, 686 N.W.2d 590, 615 (2004).
Pursuant to Neb. Rev. Stat. § 28-320.01(1) (Reissue 2008),
“[a] person commits sexual assault of a child in the second or
third degree if he or she subjects another person fourteen years
of age or younger to sexual contact and the actor is at least
nineteen years of age or older.” Section 28-318(5) defines the
term “sexual contact” as follows:
Sexual contact means the intentional touching of the vic-
tim’s sexual or intimate parts or the intentional touching
of the victim’s clothing covering the immediate area of
the victim’s sexual or intimate parts. Sexual contact shall
also mean the touching by the victim of the actor’s sexual
or intimate parts or the clothing covering the immediate
area of the actor’s sexual or intimate parts when such
touching is intentionally caused by the actor. Sexual con-
tact shall include only such conduct which can be reason-
ably construed as being for the purpose of sexual arousal
or gratification of either party. Sexual contact shall also
include the touching of a child with the actor’s sexual or
intimate parts on any part of the child’s body for purposes
of sexual assault of a child under sections 28-319.01
and 28-320.01.
The distinguishing factor between second and third degree
sexual assault of a child is “serious personal injury to the vic-
tim.” See § 28-320.01(2) and (3). Third degree sexual assault,
the specific crime with which Cano was charged in count I,
occurs when “the actor does not cause serious personal injury
to the victim.” See § 28-320.01(3).
- 343 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
Given the statutory definitions of first and third degree
sexual assault of a child, we reject Cano’s argument that the
exact date of offense is an essential element of those crimes.
Neither under federal law nor under Nebraska law is the
exact time of the commission of an offense regarded as a
substantive element in the charge or proof thereof, unless the
statute involved makes it so or is clearly intended to have
that effect. Huffman v. Sigler, 352 F.2d 370 (8th Cir. 1965).
See, also, State v. Wehrle, 223 Neb. 928, 395 N.W.2d 142
(1986); State v. Harig, 192 Neb. 49, 218 N.W.2d 884 (1974).
In the case of sexual assault of a child, the statutes involved
do not make the time or date of the offense an element of
the crime. Sections 28-319.01(1) and 28-320.01 require proof
that the sexual penetration or sexual contact occurred when
the defendant and victim were certain ages. But they do not
require proof that such event occurred on a specific date. We
therefore conclude that the exact date of commission is not
a substantive element of first, second, or third degree sexual
assault of a child.
This holding is consistent with our previous determination
in State v. Wehrle, supra, that the date of commission is not an
essential element of first degree sexual assault, which can also
require proof of the defendant’s and victim’s ages. See Neb.
Rev. Stat. § 28-319(1) (Reissue 2008). It also recognizes and
accommodates the unique circumstances surrounding young
victims, who “are often unsure of the date on which the
assault or assaults occurred” and “may have no meaningful
reference point of time or detail by which to distinguish one
specific act from another.” See State v. Martinez, 250 Neb.
597, 600, 550 N.W.2d 665, 658 (1996). See, also, Sledge v.
State, 903 S.W.2d 105 (Tex. App. 1995).
In summary, the essential elements of first degree sexual
assault of a child at least 12 years of age but less than 16 years
of age are (1) that the defendant subjected the victim to sexual
penetration, (2) that the defendant was 25 years of age or older
when the sexual penetration occurred, and (3) that the victim
- 344 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
was at least 12 years of age but less than 16 years of age when
the sexual penetration occurred. See § 28-319.01(1)(b).
The essential elements of third degree sexual assault of a
child are (1) that the defendant subjected the victim to sexual
contact without causing serious personal injury to the victim,
(2) that the defendant was at least 19 years of age or older
when the sexual contact occurred, (3) and that the victim was
14 years of age or younger when the sexual contact occurred.
See § 28-320.01(1) and (3).
(b) Evidence Against Cano
We now review the State’s evidence against Cano to deter-
mine whether any rational trier of fact could have found the
essential elements of first and third degree sexual assault of a
child beyond a reasonable doubt. See State v. Dominguez, 290
Neb. 477, 860 N.W.2d 732 (2015). We conclude that based on
the testimony of P.L., the State’s principal witness, a rational
trier of fact could have found that Cano committed third degree
sexual assault of a child on one occasion and first degree sex-
ual assault of a child on three distinct occasions.
(i) Third Degree Sexual Assault of Child
P.L. testified to an incident when Cano rubbed her “butt”
over her clothing and forced her hand to touch his exposed
penis. She did not testify that this contact caused her physical
injury, and the State did not allege that it did.
P.L. stated that this incident occurred in the living room of
Cano’s house after she started seventh grade in August 2010
but before the birth of Cano’s youngest daughter in July 2012.
It is undisputed that Cano was born in May 1981 and that P.L.
was born in December 1997. Consequently, between August
2010 and July 2012, Cano was 29 to 31 years of age and P.L.
was 12 to 14 years of age. She did not turn 15 until December
2012, several months after the latest date in the timeframe
established by her testimony.
From this evidence, a rational trier of fact could have found
that Cano subjected P.L. to sexual contact in two separate
- 345 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
ways: (1) by intentionally touching the “clothing covering the
immediate area of [P.L.’s] sexual or intimate parts,” which
includes the buttocks, or (2) by intentionally causing P.L. to
touch his “sexual or intimate parts.” See § 28-318(2) and (5).
A rational trier of fact also could have found that this contact
occurred at a time when Cano was over the age of 19 years and
P.L. was 14 years of age or younger. We therefore conclude
that there was sufficient evidence to convict Cano of third
degree sexual assault of a child.
(ii) First Degree Sexual Assault of Child
P.L. testified to three separate incidents when Cano forced
her to perform oral sex on him—one in the kitchen at Cano’s
house, another while she was “putting lights up in [her] room,”
and a third while she was painting the trim in her bedroom.
During closing argument, the State explained that these inci-
dents corresponded to the allegations in counts II, III, and
IV, respectively.
P.L. testified that two of the incidents of oral sex occurred
close together. She unequivocally identified the date of the
incident involving lights as February 2012. She testified that
the incident in the kitchen occurred prior to that time but still
in the year 2012. As such, from P.L.’s testimony it could be
ascertained that the incident in the kitchen occurred in January
or February 2012, followed by the incident with the lights later
in February. In both January and February 2012, Cano was 30
years of age and P.L. was 14 years of age.
As to the incident of oral sex connected to painting the trim
in her bedroom, P.L. could not identify the exact date when
it happened. However, she testified that it occurred after she
and her family moved into their house on 12th Avenue but
before the year 2012. Elsewhere in her testimony, she stated
that they moved into the 12th Avenue house while she was
in eighth grade and that she started eighth grade in August
2011. Taking all of this testimony together, the timeframe
of the incident involving the trim in the bedroom, as estab-
lished by P.L.’s testimony, was sometime between August and
- 346 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
December 2011. At any point during that timeframe, Cano
would have been 30 years of age. P.L. would have been 13 or
14 years of age.
Cano argues that P.L.’s testimony as to these incidents
contained too many inconsistencies to support his convic-
tions. But this argument goes to the credibility of P.L. as a
witness, which we do not consider. An appellate court does
not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact. State v. Dominguez, 290 Neb. 477, 860 N.W.2d
732 (2015).
If the trier of fact believed P.L.’s testimony, it could
have found that on three separate occasions, Cano subjected
P.L. to oral sex, which constitutes sexual penetration under
§ 28-318(6). The trier of fact also could have concluded that
each of these incidents of oral sex occurred at a time when
Cano was 25 years of age or older and P.L. was at least 12
years of age but less than 16 years of age. Accordingly, there
was sufficient evidence to convict Cano of three distinct
counts of first degree sexual assault of a child.
2. A dmission of Other Bad Acts
[7] Cano claims the district court erred by admitting evi-
dence of other bad acts/uncharged misconduct, in violation
of § 27-404(2). Cano objects to P.L.’s testimony about a fifth
possible incident, because it was “prior bad acts evidence
that was admitted without the protection and safeguards of
[§] 27-404(2).” See brief for appellant at 18. Although Cano
objected to this testimony at trial, he did not state § 27-404(2)
as the ground for his objection. He objected on materiality
grounds. Therefore, we agree with the State that Cano failed
to preserve his § 27-404 objection for review by failing to
object on this basis during the trial. On appeal, a defendant
may not assert a different ground for his objection than was
offered at trial. State v. Watt, 285 Neb. 647, 832 N.W.2d
459 (2013).
- 347 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
3. A nswer to Jury’s Question
A bout Time of Assault
Cano next claims that the district court committed error
when it advised the jury that the exact time of the commission
of the offense alleged in count I was not an essential element
of the crime of third degree sexual assault.
[8] Whether jury instructions given by a trial court are cor-
rect is a question of law. When dispositive issues on appeal
present questions of law, an appellate court has an obligation to
reach an independent conclusion irrespective of the decision of
the court below. In an appeal based on a claim of an erroneous
jury instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. State v. Robinson,
278 Neb. 212, 769 N.W.2d 366 (2009).
During the course of its deliberations, the jury submitted a
question to the court: “Is the date of 2008 and [sic] exact stip-
ulation to the account [sic], and if so can we convict on this
account [sic] if we believe the event happened but not on that
date on account [sic?]” The trial court responded: “The exact
time when a criminal offense is committed is not an essential
element of the crime.” In essence, Cano concedes that there
was no argument regarding the sufficiency of the charges con-
tained in the information or concerns about double jeopardy.
The question raised by Cano was whether the State established
all the elements of the offense beyond a reasonable doubt. The
allegation was that the abuse occurred within the broad time-
frame of the year 2008. In the instructions to the jurors, they
were provided with the elements of the offense, along with the
State’s burden to prove each of the elements of each offense
by proof beyond a reasonable doubt.
The district court instructed the jury as follows:
The elements of third degree sexual assault of a child
as charged in count I are:
1. That [Cano] subjected [P.L.] to sexual contact with-
out causing serious personal injury to her; and
- 348 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
2. That [Cano] was nineteen years of age or older at
the time; and
3. That [P.L.] was fourteen years of age or younger at
the time; and
4. That [Cano] did so during the year 2008 in Scotts
Bluff County, Nebraska.
Cano asserts that the district court’s response to the jury’s
question was in conflict with its instructions to the jury and
allowed the jury to ignore its instructions and convict Cano of
an offense that had been alleged to have occurred when he was
living in the State of Texas. Cano asserts that the trial court
should have instructed the jury to continue to deliberate and
base its decision on the facts it found and the law contained in
the jury instructions.
We have previously determined that based on P.L.’s testi-
mony on the incident in Cano’s living room, a rational trier of
fact could have found that Cano committed third degree sexual
assault of a child. Neb. Rev. Stat. § 29-1501 (Reissue 2008)
provides in relevant part:
No indictment shall be deemed invalid, nor shall the trial,
judgment or other proceedings be stayed, arrested or in
any manner affected . . . for omitting to state the time at
which the offense was committed in any case where time
is not of the essence of the offense; nor for stating the
time imperfectly . . . .
[9] In State v. Wehrle, 223 Neb. 928, 931, 395 N.W.2d 142,
145 (1986), we held that “the exact time when a criminal
offense is committed is not an essential element of a crime
unless the statute defining the offense makes a date or time an
indispensable element of the crime charged.” Cano does not
appear to be complaining that he was deprived of notice of the
allegations. He only alleges that the instruction was incorrect
and somehow conflicted with the rest of the instructions and
that the district court should have told the jury to continue to
deliberate, apparently without any supplemental instructions
from the court.
- 349 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
The instruction given by the district court was not incor-
rect. The exact time is not an essential element of third degree
sexual assault. The supplemental instruction given by the dis-
trict court was a correct statement of the law, and Cano has
not proved that the questioned instruction was prejudicial or
otherwise adversely affected a substantial right of Cano.
4. Sentences
The State has pointed out, and we agree, that there was
plain error in the sentences given by the district court. Plain
error may be found on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and
fairness of the judicial process. State v. Howell, 284 Neb. 559,
822 N.W.2d 391 (2012). As noted by the State, the district
court sentenced Cano to 1 to 3 years’ imprisonment for third
degree sexual assault of a child and 35 to 40 years’ imprison-
ment for each of the three first degree sexual assault of a child
convictions, all of which were to run concurrently. The district
court then said that “25 of those [years] will be a mandatory
minimum before the good time statutes are applicable.” Section
28-319.01 provides:
(2) Sexual assault of a child in the first degree is a
Class IB felony with a mandatory minimum sentence of
fifteen years in prison for the first offense.
(3) Any person who is found guilty of sexual assault of
a child in the first degree under this section and who has
previously been convicted (a) under this section . . . shall
be guilty of a Class IB felony with a mandatory minimum
sentence of twenty-five years in prison.
There was no allegation in the information that Cano had a
prior conviction for sexual assault or attempted sexual assault
of a child. All his convictions for that offense occurred in
this trial, which resulted from the same information filed
by the State. The plain language of the statute requires that
- 350 -
Nebraska A dvance Sheets
292 Nebraska R eports
STATE v. SAMAYOA
Cite as 292 Neb. 334
Cano had been previously convicted of a sexual assault or
attempted sexual assault as provided in § 28-319.01(3). Since
Cano was convicted of the three felonies of first degree sexual
assault of a child arising out of a single information, he was
not previously convicted as required by § 28-319.01(3) of
sexual assault or attempted sexual assault of a child. Statutory
interpretation is a question of law, which this court decides
independently of the lower courts. See State v. Piper, 289
Neb. 364, 855 N.W.2d 1 (2014). The district court erred in
pronouncing that Cano will have a mandatory 25-year mini-
mum sentence before the good time statutes will apply. Since
this is Cano’s first offense for sexual assault of a child, he
must serve a mandatory minimum of 15 years before the good
time statutes apply.
We therefore amend Cano’s sentences by reducing the man-
datory minimum sentence that Cano must serve before he is
eligible for good time from 25 years imposed by the district
court to 15 years as provided by § 28-319.01(2). With that
amendment, we affirm the sentences of Cano to 1 to 3 years’
imprisonment for third degree sexual assault of a child and 35
to 40 years’ imprisonment for each of the three first degree
sexual assault of a child convictions, all of which are to
run concurrently.
VI. CONCLUSION
We affirm the judgments of conviction, and we affirm the
sentences as modified.
A ffirmed as modified.