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 the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact.
Rules of Evidence. In proceedings where the
Nebraska Evidence Rules apply, the admissibility of evidence
is controlled by such rules; judicial discretion is involved
only when the rules make discretion a factor in determining
Rules of Evidence: Appeal and Error. Where
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
Sentences: Appeal and Error. An appellate
court will not disturb a sentence imposed within the
statutory limits absent an abuse of discretion by the trial
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: Appeal and Error. In reviewing a
sufficiency of the evidence claim, an appellate court does
not pass on the credibility of witnesses-that is for the
trier of fact.
_: In reviewing a sufficiency of the evidence claim, 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.
Neb. 89] 8. Convictions:
Witnesses. A defendant's conviction of a crime
may be based on uncorroborated testimony of a single witness.
Verdicts: Juries: Appeal and Error. Harmless
error review looks to the basis on which the jury actually
rested its verdict; the inquiry is not whether in a trial
that occurred without the error, a guilty verdict would
surely have been rendered, but whether the actual guilty
verdict rendered was surely unattributable to the error.
Trial: Evidence: Appeal and Error.
Generally, erroneous admission of evidence is harmless error
and does not require reversal if the evidence is cumulative
and other relevant evidence, properly admitted, supports the
finding by the trier of fact.
Sentences: Appeal and Error. In reviewing a
sentence imposed within the statutory limits, an appellate
court considers 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.
Sentences. When imposing a sentence, the
sentencing court is to 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
well as (7) the nature of the offense and (8) the amount of
violence involved in the commission of the crime.
13. _ .
Traditionally, a sentencing court is accorded very wide
discretion in determining an appropriate sentence.
from the District Court for Franklin County: Stephen R.
Illingworth, Judge. Affirmed.
Charles D. Brewster, of Anderson, Klein, Brewster &
Brandt, for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust for
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
direct appeal, Peter Francis Draper challenges his
convictions for intentional child abuse resulting in death
and [295 Neb. 90] intentional child abuse resulting in
serious bodily injury. He alleges that there was insufficient
evidence to support either conviction, that improper opinion
and rule 404 testimony was allowed into evidence, and
that he received excessive sentences. Finding no merit in his
arguments, we affirm.
was convicted of intentional child abuse resulting in death
and intentional child abuse resulting in serious bodily
injury in connection with the untimely death of his
2-year-old grandson. For the second time, Draper has appealed
these convictions to this court. On the first direct appeal,
after finding cumulative error concerning the testimony of
Draper's wife, Nancy Draper (Nancy), we reversed
Draper's convictions and remanded the cause for a new
trial. The case is now before us on direct appeal
from the second trial. We briefly summarize those
Jr.'s Injuries and Death
Rinehart, Ir. (Joe Ir.), died on April 30, 2012. He was 2
years old. At the time of his death, Joe Ir. lived with his
mother, Laura Rinehart (Rinehart), his maternal grandparents,
Draper and Nancy, and his three siblings in a small
three-bedroom trailer home. Joe Ir.'s father was
separated from Rinehart and had not had contact with Joe Ir.
or any of the Rinehart children for the year leading up to
Joe Ir.'s death. At all times when Joe Ir. would have
sustained his injuries, the only adults to have unchecked
access to him were Rinehart, Draper, and Nancy.
April 30, 2012, at approximately 6 p.m., Joe Ir. was brought
to the community hospital by Rinehart and Nancy after
Rinehart noticed red in his vomit. He had shown flulike
symptoms-lethargy, diarrhea, and vomiting-for the last [295
Neb. 91] several days. At the hospital, the physician on call
performed an examination and concluded that the child had a
swollen stomach. The physician then ordered an x ray of his
abdomen to determine the cause of the swelling. The x ray
showed no signs of injuries but did show possible signs of
constipation. At that point, the physician treated Joe Jr.
for constipation and sent him home.
1 hour after Joe Jr. was discharged from the hospital,
Rinehart and Nancy brought him back to the emergency room. He
was not breathing and had no heartbeat. The hospital staff
attempted to revive him for 45 minutes but were never able to
find a heartbeat. The treating physician declared Joe
Jr.'s time of death at approximately 8:41 p.m.
the cause of death was unexplained, the hospital staff
notified law enforcement of Joe Jr.'s death. Law
enforcement officials then initiated a death investigation
for the purpose of collecting information to determine the
cause of death.
enforcement officials interviewed Rinehart, Draper, and Nancy
late in the evening on April 30, 2012. At no point did
Rinehart or Draper mention concerns of abuse. Draper did tell
the interviewing officer that he believed the autopsy would
show no signs of violence but may show signs of a rare
autopsy was performed on Joe Jr., and the pathologist
concluded that the cause of death was multiple blunt force
trauma of the head, trunk, and extremities. The manner of
death was ruled to be homicide. Post mortem CT scans showed
old rib fractures, a recent skull fracture, a recent pelvic
fracture, strain injuries on the arms and shoulders, and a
ruptured bowel. The perforated bowel was likely associated
with the recent pelvic fracture.
experts determined that these injuries were likely the result
of abuse or outer trauma, because Joe Jr. did not have any
bone disease or other contributing disability. The
pathologist who performed the autopsy additionally identified
[295 Neb. 92] several bruises on the child's knees,
elbows, shoulders, and thighs and dated several of them as
less than 24 hours old.
Arrest and Charges
the autopsy, law enforcement officials interviewed Rinehart,
Draper, and Nancy again and ultimately arrested all three.
The lead investigator noted probable cause arose "based
on the amount of injury on [Joe Jr.], [and] given the small
size of the residence, ... it was [not] reasonable that there
could be that amount of injury to a small child and any of
the adults wouldn't have some knowledge that that was
occurring." Once detained, Rinehart shared her belief
that Draper had abused Joe Jr. She then entered a plea
agreement with the State for a reduced charge in exchange for
testifying against Draper at trial. Based on this
information, Draper was subsequently charged with child abuse
resulting in death, allegedly committed on or between April
23 and 30, 2012, as well as child abuse resulting in serious
bodily injury on or between July 12, 2011, and April 22,
trial, the State presented testimony of several health
professionals to describe Joe Jr.'s various injuries and
the possible sources of the injuries. None of the
professionals were able to point to a particular individual
who committed the abuse. Rinehart was the only witness to
specifically testify to Draper's alleged physical abuse
of Joe Jr. and to explain the events leading up to his death.
Several other witnesses also testified to their interactions
with Draper to confirm his control of the household and
substantiate Rinehart's claims. Draper did not testify in
his behalf or present any witnesses of his own.
testified that after her husband left the home, Draper became
the primary disciplinarian of her children. His disciplinary
techniques supposedly included timeouts that [295 Neb. 93]
could last from "a couple minutes to a couple hours to a
couple of days." Rinehart's other children, aged 4
to 8 at the time of the trial, would be
"disciplined" for crying and would be made to stand
in a corner and sometimes would have to lift weights over
to Rinehart, Draper generally handled Joe Jr.
roughly-dragging him or yanking him by the arm. She also
described specific instances of physical abuse of Joe Jr. by
Draper. She testified that Draper once pushed Joe Jr. down
repeatedly so that his head hit the floor until the
child's head was swollen and his eyes were black and
blue. On that occasion, Rinehart was not allowed to ...