State v. Hamed, A-16-675

Background

On March 20, 2014, police found defendant Tariq M. Hamed and 14-year-old R.D. in a van; R.D. was discovered without pants/underwear and reported they had engaged in sexual intercourse. Hamed stipulated he had penile/vaginal intercourse with R.D.; the contested issue was Hamed’s age that day.
State evidence: immigration forms, a Sudanese birth certificate copy, permanent resident card, and other records listed Hamed’s DOB as March 25, 1991 (making him 22 on the date). Behavior and records (school placement, learner’s permit/license dates, prior statements, recorded call) were consistent with the 1991 DOB.
Defense evidence: Hamed produced a Sudanese birth certificate indicating March 25, 1997 (making him 16 on the date), testimony from siblings asserting 1997 DOB, and an application to change his immigration DOB (which was not reflected on the reissued card). Defense argued clerical error in immigration records.
Jury convicted Hamed of first-degree sexual assault, third-degree sexual assault of a child, and negligent child abuse. Sentences: concurrent terms with 10–15 years for first-degree sexual assault.
Hamed appealed, arguing (1) insufficient evidence as to his age to support convictions, (2) a confusing jury instruction regarding statements to police, and (3) an excessive sentence.

Issues

Issue	Hamed's Argument	State's Argument	Held
Sufficiency of evidence to prove Hamed was ≥19 for 1st‑degree sexual assault	Hamed produced a Sudanese birth certificate showing 1997 DOB; thus evidence was insufficient to prove he was ≥19	State produced multiple immigration and government records, prior statements, and conduct supporting 1991 DOB; credibility/resolution of conflicts for jury	Affirmed — viewed in light most favorable to State, evidence was sufficient for jury to find 1991 DOB and convict
Sufficiency of evidence for negligent child abuse	If Hamed was a minor (1997 DOB), consensual sex between minors would not constitute child abuse	Given jury’s finding Hamed was an adult, his intercourse with a 14‑year‑old met §28‑707(1)(e) (placed child in situation to be sexually abused)	Affirmed — sufficient evidence to support negligent child abuse conviction
Jury instruction on evaluating statements to law enforcement	Instruction was confusing and could mislead jurors	No contemporaneous objection at trial; record on appeal lacks the instructions, so plain‑error review cannot be conducted	Not considered — appellant failed to preserve and supply record; affirmance follows
Excessive sentence (10–15 years for 1st‑degree)	Hamed urged leniency due to alleged youth/immaturity and disputed DOB	Sentence within statutory range for Class II felony; presentence report and criminal history supported the sentence; district court did not abuse discretion	Affirmed — no abuse of discretion; sentence not excessive

Key Cases Cited

State v. France, 279 Neb. 49 (discusses standard for reviewing sufficiency of evidence in criminal convictions)
State v. Jones, 293 Neb. 452 (appellate review does not reweigh evidence or assess witness credibility)
State v. Abdulkadir, 286 Neb. 417 (failure to object to jury instructions precludes appellate review absent plain error)
State v. Boche, 294 Neb. 912 (appellant must supply record supporting claimed instructional error; absent record, affirmance generally follows)
State v. Dixon, 286 Neb. 334 (standard for reviewing claims a within‑range sentence is excessive)
State v. Howard, 282 Neb. 352 (factors sentencing court should consider and discretion allowed)