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State v. Kresha

Court of Appeals of Nebraska

February 13, 2018

State of Nebraska, appellee,
v.
Patrick Kresha, appellant.

         1. Statutes: Judgments: Appeal and Error. Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.

         2. Sentences: Appeal and Error. An appellate court will not disturb sentences that are within statutory limits, unless the district court abused its discretion in establishing the sentences.

         3. Convicted Sex Offender: Sentences. Any sex offender convicted of a registrable offense under Neb. Rev. Stat. § 29-4003 (Reissue 2016) punishable by imprisonment for more than 1 year and convicted of an aggravated offense shall register on the sex offender registry for life.

         4. Convicted Sex Offender. An aggravated offense for purposes of the Sex Offender Registration Act means any registrable offense under Neb. Rev. Stat. § 29-4003 (Reissue 2016) which involves the direct genital touching of (1) a victim age 13 years or older without the consent of the victim, (2) a victim under the age of 13 years, or (3) a victim who the sex offender knew or should have known was mentally or physically incapable of resisting or appraising the nature of his or her conduct.

         5. Convicted Sex Offender: Words and Phrases. The definitions of sexual conduct under Nebraska law and federal law make a distinction between the direct touching of a victim's private parts and the touching of the clothing covering the victim's private parts.

         6. ___: ___. The term "direct genital touching" for purposes of finding an aggravated offense under the Sex Offender Registration Act requires evidence that the actor touched the victim's genitals under the victim's clothing.

         [25 Neb.App. 544] 7. 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. The sentencing court is not limited to any mathematically applied set of factors.

         8. ___. 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 Polk County: Rachel A. Daugherty, Judge.

          Timothy P. Matas for appellant.

          Douglas J. Peterson, Attorney General, and Siobhan E. Duffy for appellee.

          Pirtle, Riedmann, and Arterburn, Judges.

          ...


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