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State v. Wood

Supreme Court of Nebraska

May 26, 2017

State of Nebraska, appellee,
Robyn J. Wood, appellant.

         1. 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.

         2. 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 reasonable doubt.

         3. 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.

         4. 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.

         5. 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 unambiguous.

         6. 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 something specified.

         7. 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 findings.

         [296 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.

         9. 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.

         10. 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.

         Appeal from the District Court for Douglas County: J Russell Derr, Judge. Affirmed.

          Jim K. McGough, of McGough Law, PC, L.L.O., for appellant.

          Douglas J. Peterson, Attorney General, and Nathan A. Liss for appellee.

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

          KELCH, J.


         Following 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.


         The 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.

         Prior 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 ...

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