909 N.W.2d 93
Neb. Ct. App.2018Background
- Patrick Kresha pled no contest to two counts of third-degree sexual assault of a child and two counts of third-degree sexual assault based on incidents from 2010–2013 involving four victims (born 1995–1998), one of whom was his daughter.
- Factual basis: Kresha entered victims’ bedrooms and touched genitalia (M.K.), breasts and buttocks (J.G.), and subjected two other victims to nonconsensual sexual contact.
- District court accepted pleas, imposed consecutive prison terms (5, 5, 1, and 1 years) and concluded Kresha committed an “aggravated offense” under Nebraska’s Sex Offender Registration Act (SORA), ordering lifetime registration.
- Kresha appealed, arguing (1) the SORA aggravated-offense finding was unsupported because “direct genital touching” requires touching under clothing, and (2) his sentences were excessive.
- The State conceded there was no evidence of genital touching under clothing for the child-sexual-assault counts.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Kresha) | Held |
|---|---|---|---|
| Whether "direct genital touching" under SORA requires touching the genitals under the victim’s clothing | Sided with defendant on record: no evidence of under-clothing touching for child counts | "Direct genital touching" requires touching genitals under clothing; no such evidence here | Court held "direct genital touching" requires touching genitals under the victim’s clothing; no record evidence, so aggravated-offense finding was erroneous; reduced registration term to 25 years |
| Whether convictions triggered lifetime SORA registration | Life registration appropriate if aggravated offense shown | Lifetime registration improper absent under-clothing genital touching | Court modified order: 25-year registration (not lifetime) |
| Whether sentences were excessive or an abuse of discretion | Sentences fall within statutory limits and were reasonable given offense gravity and victims’ impact | Sentences excessive; court relied too heavily on offense characteristics, ignoring mitigating factors | Court affirmed sentences as within statutory limits and not an abuse of discretion |
Key Cases Cited
- State v. Hamilton, 277 Neb. 593 (statement on independent review of statutory interpretation)
- State v. Dominguez, 290 Neb. 477 (standard for appellate review of sentences within statutory limits)
- U.S. v. White, 782 F.3d 1118 (10th Cir.) (interpreting federal definition of sexual act as direct touching of genitals)
- U.S. v. Jennings, 496 F.3d 344 (4th Cir.) (direct touching under §2246 means touching unclothed private parts)