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.
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.
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
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
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.
Circumstantial Evidence: Proof. A fact
proved by circumstantial evidence is nonetheless a proven
Circumstantial Evidence. Circumstantial
evidence is not inherently less probative than direct
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
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
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
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.
Sentences. When a sentence orally pronounced
at the sentencing hearing differs from a later written
sentence, the former prevails.
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
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
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
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.
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.
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. 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.
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
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. 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.
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
objections to this testimony.
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.
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.
evidence showed A.M. referred to Olbricht as
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.
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.
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.
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.
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.
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.
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 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." That court laid out its reasoning as
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
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
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
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 ...