Motions for New Trial: Appeal and Error. A
trial court's order denying a motion for new trial is
reviewed for an abuse of discretion.
Criminal Law: 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. 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
Judgments: Statutes: Appeal and Error. To the extent
an appeal calls for statutory interpretation or presents
questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below.
Criminal Law: Statutes: Legislature: Intent. In
reading a penal statute, a court must determine and give
effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute
considered in its plain, ordinary, and popular sense.
Statutes: Legislature: Intent: Appeal and Error. An
appellate court will not look beyond a statute to determine
the legislative intent when the words are plain, direct, or
Sexual Assault: Words and Phrases. Under Neb. Rev.
Stat. § 28-322.04 (Reissue 2008), the word
"subject" means to cause to undergo the action of
Jury Instructions: Appeal and Error. Harmless error
analysis applies to instructional errors so long as the error
at issue does not categorically vitiate all the jury's
Neb. 739] 8. Verdicts: Juries:
Appeal and Error. In a criminal case tried to a
jury, harmless error exists when there is some incorrect
conduct by the trial court which, on review of the entire
record, did not materially influence the jury in reaching a
verdict adverse to a substantial right of the defendant.
Motions for New Trial: Proof. In order for a new
trial to be granted, it must be shown that a substantial
right of the defendant was adversely affected and that the
defendant was prejudiced thereby.
Trial: Evidence: Appeal and Error. Because
overruling a motion in limine is not a final ruling on
admissibility of evidence and, therefore, does not present a
question for appellate review, a question concerning
admissibility of evidence which is the subject of a motion in
limine is raised and preserved for appellate review by an
appropriate objection to the evidence during trial.
from the District Court for Douglas County: J Russell Derr,
McGough, of McGough Law, PC, L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss for
Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and
a jury trial, Robyn J. Wood appeals her conviction of first
degree sexual assault of a protected individual, a Class III
felony under Neb. Rev. Stat. § 28-322.04(3) (Reissue
2008). The parties do not dispute the status of Wood and the
victim under the statute or the extent of the sexual contact.
Instead, Wood primarily argues that the evidence does not
support the jury's finding that she "subjected"
the victim to sexual penetration. We disagree, and we affirm.
State's information charged Wood with first degree sexual
assault of a protected individual, in violation of [296 Neb.
740] § 28-322.04(2) and (3). It alleged that on or about
May 1 through July 31, 2014, in Douglas County, Nebraska,
Wood subjected T.Z., a protected individual, to sexual
penetration, as defined in Neb. Rev. Stat. § 28-318
(Reissue 2016). The incident that gave rise to the charge
occurred while Wood was an employee at Boys Town, a
residential treatment center for troubled youth, in Omaha,
Nebraska. Boys Town is a contractor of the Nebraska
Department of Health and Human services, and on the date of
the offense, T.Z., then 17 years old, resided there under the
custody and the guardianship of the State.
to trial, Wood filed a motion in limine. She sought to
exclude "[a]ny testimony or evidence regarding any
evaluations, treatment or therapy regarding [her] past sexual
behavior and/or sexual proclivities, including but not
limited to sexual addiction meetings, as such evidence
violates Neb. Rev. Stats. §§ 27-608, 27-414, 27-404
and 27-403." This included her attendance at
"Sexaholics Anonymous." The district court's
ruling on the motion is not part of the record and was not
requested by any praecipe, but the ...