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State v. Thomas

Court of Appeals of Nebraska

November 7, 2017

State of Nebraska, Appellee,
Michael R. Thomas, Appellant.

         1. Statutes: Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below.

         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. 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 court.

         4. 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.

         5. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         6. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the language.

         [25 Neb.App. 257] 7. Criminal Law: Statutes. When dealing with penal statutes, it is a fundamental principle of statutory construction that they be strictly construed. In doing so, a court cannot supply language which is absent from the statutory definition for a criminal offense.

         8. Criminal Law: Statutes: Legislature. A criminal statute includes only those elements which the Legislature explicitly included in its text.

         9. Criminal Law: Minors: Proof. Neb. Rev. Stat. § 28-707 (Cum. Supp. 2014) only requires proof of the status of the victim as a minor child; the statute does not require proof of the victim's actual identity or birth date.

         10. Trial: Presumptions. Under Neb. Rev. Stat. § 28-707(1) (Cum. Supp. 2014), triers of fact may apply to the subject before them that general knowledge which any person must be presumed to have.

         11. 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.

         12. Sentences. When imposing a sentence, the 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 well as (7) the nature of the offense and (8) the violence involved in the commission of the offense.

         13. ___. The appropriateness of a sentence is necessarily a subjective judgment and includes the sentencing judge's observation of the defendant's demeanor and attitude and all the facts and circumstances surrounding the defendant's life.

         Appeal from the District Court for Lancaster County, Kevin R. McManaman, Judge, on appeal thereto from the County Court for Lancaster County, Matthew L. Acton, Judge. Judgment of District Court affirmed.

          Joseph D. Nigro, Lancaster County Public Defender, and Matthew Meyerle for appellant.

          Douglas J. Peterson, Attorney General, and Sarah E. Marfisi for appellee.

         [25 Neb.App. 258] Moore, Chief Judge, and Bishop and Arterburn, Judges.

          BISHOP, JUDGE.


         Michael R. Thomas was convicted of negligent child abuse, a Class I misdemeanor, and disturbing the peace, a Class III misdemeanor, after a bench trial in the county court for Lancaster County. He appealed to the district court for Lancaster County, which affirmed the judgment of the county court. On appeal to this court, Thomas asserts the child abuse statute requires proof of the identity and birth date of the victim. He ...

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