Appeal from the District Court for Scotts Bluff County: RANDALL L. LIPPSTREU, Judge.
Leonard G. Tabor for appellant.
Douglas J. Peterson, Attorney General, and George R. Love for appellee.
MOORE, Chief Judge, and IRWIN and INBODY, Judges.
[23 Neb.App. 608] Irwin, Judge.
Cody Olbricht, also known as Cody Olbrich, appeals his conviction and sentence for knowing and intentional child abuse resulting in serious bodily injury. On appeal, Olbricht argues that there was insufficient evidence to support his conviction, the trial court erred in overruling his motions for directed verdict and new trial, the trial court erred in making numerous evidentiary rulings, and Olbricht received an excessive sentence. Upon our review, we find that there was insufficient evidence to support Olbricht's conviction. Accordingly, we reverse Olbricht's conviction and vacate his sentence.
On September 28, 2014, a 3-year-old child, A.M., was admitted to an emergency room in Scottsbluff, Nebraska. A.M. had bruising on her face, torso, arms, and legs. Doctors also observed that A.M. was not interactive, appeared sleepy, and had bleeding in the white part of her left eye. Due to A.M.'s symptoms, doctors suspected she might be suffering from a " subdural hemorrhage" (brain bleed). A CAT scan revealed a brain bleed and infarct in A.M.'s brain. Further examination revealed that A.M. also had a laceration on the [23 Neb.App. 609] left lobe of her liver. Due to the severity of her brain injury, she was transferred by helicopter to a hospital in Denver, Colorado, for treatment.
A.M. had been transported to the emergency room by her maternal grandmother, Lynelle Pahl. Cassandra Miller, who is A.M.'s mother, and Olbricht, who is Miller's boyfriend, also came to the emergency room shortly after A.M. was admitted. Olbricht is not A.M.'s biological father, but Olbricht, Miller, and A.M. lived together, along with the couple's son.
Olbricht and Miller informed the doctors at the emergency room that A.M. had not been feeling well for the past week. They explained that A.M. was less active, had a headache, and had vomited throughout the week. Olbricht and Miller also expressed their belief that A.M. might have a bleeding disorder that caused her bruises. Laboratory tests revealed that she did not suffer from a bleeding disorder that would have caused her bruising or the brain bleed.
The emergency room doctor suspected that A.M. may have been abused and notified the authorities. Olbricht was subsequently charged with knowing and intentional child abuse resulting in serious bodily injury to A.M. See Neb. Rev. Stat. § 28-707(1) and (7) (Cum. Supp. 2014).
The matter proceeded to a bench trial held on March 20, 23, and 24, 2015. The State subpoenaed Miller to testify. Miller testified that she and Olbricht had been " boyfriend and girl-friend" for 2 1/2 years. According to Miller, A.M. referred to Olbricht as " daddy."
Miller testified that A.M. had previously received various injuries while in Olbricht's care. First, Miller testified that in March 2014, A.M. cut her bottom lip while Olbricht was watching her. In another incident that Miller said she believed occurred in September 2014, A.M. received burns to her lip and face while under Olbricht's
supervision. With regard to the burning incident, Miller testified that A.M. was in the shower when Miller got home and that A.M.'s face was red. Miller next testified that A.M. suffered bruises to her right hip in [23 Neb.App. 610] September 2014. During that incident, A.M. was home with Olbricht while Miller was at work. Olbricht told Miller that A.M. had fallen playing on rocks in the backyard. Next, Miller testified that she was at work on September 20 while Olbricht cared for A.M. When Miller returned home, she noticed the white of A.M.'s left eye was red.
Miller also testified regarding the events of the day before A.M. was admitted to the emergency room, September 27, 2014. Miller testified that she worked outside the home from approximately 10 a.m. to 3:40 p.m. while Olbricht watched A.M., the couple's son, and Olbricht's two other children. According to Miller, A.M. received a bruise to her cheek just after Miller got off work while A.M. was playing with the other children. Miller testified that she and Olbricht were in another room when one of Olbricht's children yelled that another child had hit A.M.
Miller testified that Olbricht took his other children back to their mother's care at some point after Miller returned home from work. Miller testified that she and Olbricht then took A.M. to a fast-food restaurant " to get something to eat" and drove her to a babysitter in Lyman, Nebraska. Miller testified that just as they arrived at the gas station in Lyman to drop A.M. off with the babysitter, A.M. vomited. According to the ...