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State v. Olbricht

Supreme Court of Nebraska

October 14, 2016

State of Nebraska, appellee,
Cody Olbricht, also known as Cody Olbrich, 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. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: An appellate court does not resolve conflicts in the evidence, pass on 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 reasonable doubt.

         3. Criminal Law: Minors: Proof. The provisions of Neb. Rev. Stat. § 28-707 (Cum. Supp. 2014) do not require the State to prove a minor child was in the exclusive care or custody of the defendant when the child abuse occurred.

         4. Criminal Law: Minors: Intent. There is no requirement under Nebraska law that the defendant be physically present when the child abuse occurs, or that the defendant be the only person present, so long as he or she knowingly, intentionally, or negligently permits the child abuse.

         5. Criminal Law: Minors: Circumstantial Evidence: Proof. Evidence showing a child was in the defendant's sole care during the timeframe when the child suffered injuries is circumstantial evidence from which it can reasonably be inferred that the defendant caused such injuries, [294 Neb. 975] but proof of sole or exclusive care is not a necessary prerequisite to proving child abuse.

         6. Circumstantial Evidence: Proof. A fact proved by circumstantial evidence is nonetheless a proven fact.

         7. Circumstantial Evidence. Circumstantial evidence is not inherently less probative than direct evidence.

         8. Courts: Appeal and Error. Upon reversing a decision of the Nebraska Court of Appeals, the Nebraska Supreme Court may consider, as it deems appropriate, some or all of the assignments of error the Court of Appeals did not reach.

         9. Motions to Dismiss: Directed Verdict: Waiver: Appeal and Error. A defendant who moves for dismissal or a directed verdict at the close of the evidence 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 dismissal or a directed verdict but may still challenge the sufficiency of the evidence.

         10. Appeal and Error. An alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error to be considered by an appellate court.

         11. Criminal Law: Motions for New Trial: Appeal and Error. In a criminal case, a motion for new trial is addressed to the discretion of the trial court, and unless an abuse of discretion is shown, the trial court's determination will not be disturbed.

         12. Sentences. When a sentence orally pronounced at the sentencing hearing differs from a later written sentence, the former prevails.

         13. __. Imposing a sentence within statutory limits is a matter entrusted to the discretion of the trial court. 14. Sentences: Appeal and Error. Where a sentence imposed within the statutory limits is alleged on appeal to be excessive, the appellate court must determine whether the sentencing court abused its discretion in considering and applying the relevant factors as well as any applicable legal principles in determining the sentence to be imposed.

         15. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court's decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, and evidence.

         16. Sentences. When imposing a sentence, a sentencing judge should consider the defendant's (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or record of law-abiding conduct, and (6) motivation for the offense, as [294 Neb. 976] well as (7) the nature of the offense and (8) the amount of violence involved in the commission of the crime.

         Petition for further review from the Court of Appeals, Moore. Chief Judge, and Irwin and Inbody, Judges, on appeal thereto 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.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Stacy, J.


         After a bench trial in the district court for Scotts Bluff County, Cody Olbricht, also known as Cody Olbrich, was convicted of knowing and intentional child abuse resulting in serious bodily injury. The Nebraska Court of Appeals reversed the conviction and vacated the sentence, holding the evidence was insufficient to support the conviction.[1] We granted the State's petition for further review. Because we conclude the evidence was sufficient to sustain the conviction, we reverse the Court of Appeals' decision and remand the matter with directions to affirm Olbricht's conviction and sentence, as modified.


         On September 28, 2014, 3-year-old A.M. was admitted to an emergency room in Scottsbluff, Nebraska, with bruising on her face, torso, arms, and legs. A.M. was not interactive, appeared sleepy, and had bleeding in the white part of her left [294 Neb. 977] eye. Due to A.M.'s symptoms, doctors suspected she was suffering from a subdural hemorrhage (brain bleed). A CAT scan revealed a brain bleed and infarct in A.M.'s brain. Further examination revealed A.M. had a laceration on the left lobe of her liver. She was transferred by helicopter to a hospital in Denver, Colorado, for further treatment.

         The emergency room doctor in Scottsbluff suspected A.M. had been abused and notified the authorities. Olbricht, the live-in boyfriend of A.M.'s mother, was subsequently charged with knowing and intentional child abuse resulting in serious bodily injury.[2] The operative information alleged the crime occurred "[o]n or about March, 2014 through September, 2014." Olbricht waived a jury trial, and the matter was tried to the court.

         Evidence at Trial

         Cassandra Miller, A.M.'s mother, testified for the State. In addition to testifying about the events leading up to A.M.'s hospitalization, Miller testified about prior injuries A.M. had received while in Olbricht's care. According to Miller, in March 2014, A.M. sustained a cut to her bottom lip while in Olbricht's care. And in separate instances in September, A.M. incurred burns to her lips and face, various bruises on her cheek and hips, and retinal bleeding while in Olbricht's care. There were no rule 404[3] objections to this testimony.

         On the evening of September 27, 2014, the day before A.M. was admitted to the hospital, Miller and Olbricht took A.M. to a fast-food restaurant and then to a babysitter. A.M. vomited after leaving the restaurant. Miller changed A.M.'s clothes, and then she and Olbricht left A.M. with the babysitter for the night.

         The babysitter noticed A.M. had bruises on her face, neck, and back. According to the babysitter, A.M. was lethargic and [294 Neb. 978] vomited several more times that night. The babysitter took a photograph of A.M.'s bruises and sent it to A.M.'s grandmother, Lynelle Pahl. Pahl was at work when she received the photograph via text message and said she would take A.M. to the hospital first thing in the morning if A.M. was not better. The babysitter also testified, over objection, that when she informed A.M. that her grandmother was going to pick her up, A.M. became very upset and seemed scared to go home:

She seemed terrified and she didn't want to go home. She kept expressing to me she didn't want to go home.
. . .
And then when I asked her if somebody was hurting her at home and she explained to me that, yes, and I said who and she said, "daddy." And I said, "where does daddy hurt you?" She pointed to her shin and she pointed to her foot. And I had rubbed her head and I felt lumps all along her head and I said, "did he hit your head, too, " and she said yes.

         The evidence showed A.M. referred to Olbricht as "daddy."

         A.M.'s regular daycare provider testified that between March and September 2014, A.M. regularly came to daycare with bruises on her face, arms, back, and legs. When Olbricht came to pick up A.M. from daycare, A.M. would become upset and cry, because she did not want to go home with him. In April, after noticing A.M.'s face was "really swollen, " seeing bruises down her back, and seeing a distinctive mark across her left buttocks, A.M.'s daycare provider called the Department of Health and Human Services to report her concerns. The provider testified that after A.M. was released from the hospital into Pahl's care, she has had no injuries or bruises.

         Two doctors testified for the State. Dr. Jeffrey Salisbury, A.M.'s emergency room doctor, testified that the subdural hemorrhage and infarct in A.M.'s brain and the laceration to A.M.'s liver were injuries that presented a substantial risk of death. According to Dr. Salisbury, there was no way to tell [294 Neb. 979] exactly how old A.M.'s brain injury was, but it was his opinion that the brain injury was "acute, " meaning it could have been anywhere from 5 minutes to 2 weeks old.

         Dr. Andrew Sirotnak, a forensic pediatrician and a member of the medical team that treated A.M. at the hospital in Denver, testified that in his opinion, A.M.'s brain injury occurred "a day or two" or a "few days" prior to her hospitalization. Dr. Sirotnak testified that A.M.'s brain injury was "clearly something that was inflicted" and that the injury was likely the result of being "thrown from something or thrown by something." Dr. Sirotnak could not tell when the liver injury occurred. Dr. Sirotnak diagnosed A.M. as a "battered child, " meaning "a child that's been injured in a multi system manner over time." According to Dr. Sirotnak, A.M.'s injuries were likely nonaccidental because some occurred over soft tissue and others displayed a bruising pattern that indicated they were inflicted with an object. It was Dr. Sirotnak's opinion that A.M. had been hit with a wire hanger because the bruises on her legs and hip were triangular in shape. With respect to what caused the liver laceration, Dr. Sirotnak testified it was likely caused by blunt trauma akin to the amount of force seen in a car accident. Dr. Sirotnak opined that based on A.M.'s medical history, there was no accidental explanation for her liver injury.

         At the close of the State's case, Olbricht moved for a directed verdict. The court overruled the motion, and Olbricht proceeded to call numerous family members and acquaintances who testified that A.M. was always healthy, happy, and clean and that Olbricht had never abused her. Olbricht also called Miller to testify for the defense. Miller testified that, in addition to the times A.M. was injured while in Olbricht's care, A.M. also had been injured while in Miller's care. Miller testified that in August or September 2014, she and Olbricht were home when A.M. fell down the stairs. Miller also testified that on September 16, she was with A.M. at the park when A.M. was hit in the head by a swing.

         [294 Neb. 980] Olbricht testified in his own defense. He did not dispute that A.M. had a history of prior injuries while in his care as described by other witnesses. Instead, Olbricht denied that he caused A.M.'s injuries and offered a variety of explanations for how the injuries occurred, all of which either suggested A.M. was responsible for her own injuries or another child had inflicted the injuries.

         The district court found the brain bleed and the liver laceration created a substantial risk of death and were serious bodily injuries. The court recounted the evidence and concluded that the injuries were nonaccidental and that "[t]he majority, if not all, of [A.M.'s] documented injuries occurred when she was in the sole physical care of. . . Olbricht." Based on this evidence, the court found Olbricht guilty of knowing and intentional child abuse resulting in serious bodily injury.

         After the court imposed sentence, Olbricht timely appealed, assigning that the trial court erred in (1) finding him guilty, (2) denying his motion for directed verdict, (3) overruling his evidentiary objections, (4) overruling his motion for new trial, and (5) imposing an excessive sentence.

         Court of Appeals

         The Court of Appeals held the evidence was insufficient to support Olbricht's conviction, "because the evidence presented never showed, directly or circumstantially, that A.M.'s serious bodily injuries occurred during a discrete timeframe when Olbricht was the only adult in her presence."[4] That court laid out its reasoning as follows:

According to the evidence at trial, the timeframe in which A.M.'s serious bodily injuries were inflicted was broad. Specifically, Dr. Salisbury testified that A.M.'s brain injury was "acute, " meaning it could have occurred anywhere from 5 minutes to 2 weeks before she came to the emergency room. Dr. Sirotnak testified that A.M.'s [294 Neb. 981] brain injury occurred within "a day or two" of her hospitalization. Neither doctor provided a specific timeframe in which the liver injury occurred.
A.M. was not in Olbricht's sole care for the week or the "day or two" before she was hospitalized. For example, Miller was with both Olbricht and A.M. during the afternoon and evening of September 27, 2014, the day before A.M. was hospitalized. Additionally, A.M. was alone with Pahl for approximately an hour 6 days before her hospitalization. Furthermore, the night before her hospitalization, A.M. was in the care of the babysitter and neither Olbricht nor Miller was present. Therefore, pursuant to Dr. Sirotnak's opinion that the injury occurred within "a day or two" of A.M. 's hospitalization, Olbricht, Miller, and the babysitter cared for A.M. during the relevant timeframe. Pursuant to Dr. Salisbury's opinion that A.M.'s brain injury was between 5 minutes and 2 weeks old, Olbricht, Miller, the babysitter, and Pahl all cared for A.M. during the relevant timeframe. With respect to A.M.'s liver injury, neither doctor provided a timeframe during which the injury was inflicted, thereby making it impossible to establish that Olbricht was A.M.'s sole caregiver when the liver laceration occurred. . . . Here, the lack of evidence that Olbricht had exclusive custody of A.M. during the time when her substantial injuries were inflicted prevents the conclusion that Olbricht committed child abuse.[5]

         The Court of Appeals acknowledged there was circumstantial evidence that Olbricht had caused A.M.'s injuries, but found that this evidence was insufficient to support the conviction:

It is true that Olbricht and Miller testified about a number of injuries that occurred while Olbricht was supervising A.M. However, the record does not support a finding [294 Neb. 982] that Olbricht caused either of the two injuries that could have supported his conviction: A.M.'s brain bleed and lacerated liver. Specifically, the State failed to adduce evidence that A.M. was in Olbricht's sole care at the time she received the injuries that led to the brain bleed or lacerated liver.
We note that there was some circumstantial evidence that A.M. was afraid of Olbricht, that she said Olbricht hurt her, and that she had previously suffered injuries while in Olbricht's care. However, this evidence is insufficient to overcome the fact that at least two other individuals could not be excluded as having caused ...

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