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State v. Osborne

Supreme Court of Nebraska

June 28, 2013

State of Nebraska, appellee,
v.
Dean L. Osborne, appellant.

1. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, the relevant question for an appellate court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

2. 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.

3. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective assistance of counsel claim will not be addressed on direct appeal if it requires an evidentiary hearing.

Petition for further review from the Court of Appeals, Irwin, Pirtle, and Riedmann, Judges, on appeal thereto from the District Court for Saunders County, Mary C. Gilbride, Judge, on appeal thereto from the County Court for Saunders County, Marvin V. Miller, Judge.

Cynthia R. Lamm, of Law Office of Cynthia R. Lamm, for appellant.

[286 Neb. 155] Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Heavican, C.J., Wright, Stephan, and Miller-Lerman, JJ.

PER CURIAM.

NATURE OF CASE

This case is before us on further review of the decision of the Nebraska Court of Appeals. See State v. Osborne, 20 Neb.App. 553, 826 N.W.2d 892 (2013). Dean L. Osborne was convicted in the county court for Saunders County of third degree sexual assault and admitting a minor to an obscene motion picture, show, or presentation. The district court affirmed. The Court of Appeals affirmed the third degree sexual assault conviction, but reversed the obscenity-related count. We granted Osborne's petition for further review; neither party challenges the reversal of the obscenity-related conviction on further review. Osborne claims that the Court of Appeals erred when it failed to find that (1) there was not sufficient evidence to support his conviction for third degree sexual assault and (2) he received ineffective assistance of trial counsel. We affirm the decision of the Court of Appeals.

STATEMENT OF FACTS

The underlying facts of this case are set forth in greater detail in the Court of Appeals' opinion. See id. Generally, Osborne was convicted in the county court for Saunders County of third degree sexual assault, Neb. Rev. Stat. § 28-320(1) (Reissue 2008), and admitting a minor to an obscene motion picture, show, or presentation, Neb. Rev. Stat. § 28-809 (Reissue 2008). The charges against Osborne arose from events involving the alleged victim, A.H., which occurred during the second half of 2009. The district court affirmed his convictions.

On appeal to the Court of Appeals, Osborne claimed that the district court erred in various respects, including when it found that there was sufficient evidence to support his convictions and when it determined that the record was insufficient to review his claims of ineffective assistance of trial counsel. The Court of Appeals concluded that there was not sufficient evidence [286 Neb. 156] to support Osborne's conviction for admitting a minor to an obscene motion picture, show, or presentation. The Court of Appeals reversed this conviction and remanded the cause with directions to dismiss the charge. The Court of Appeals, however, concluded that there was sufficient evidence to support the conviction for third degree sexual assault and affirmed that conviction. The Court of Appeals did not address Osborne's other claims, including the claim related to ineffective assistance of trial counsel. One member of the three-judge panel dissented from that portion of the opinion which affirmed the third degree ...


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