909 N.W.2d 93
Neb. Ct. App.2018Background
- Defendant Patrick Kresha pled no contest to two counts of third-degree sexual assault of a child (Class IIIA felonies) and two counts of third-degree sexual assault (misdemeanors) based on touching of four teenage victims, including his daughter.
- Alleged acts: touching M.K.’s genital area (over clothing), J.G.’s breasts and buttocks, and nonconsensual sexual contact with two other victims. Events occurred in Polk County, Nebraska.
- District court accepted the pleas, imposed consecutive terms (two 5-year terms and two 1-year terms) within statutory limits, and found Kresha committed an "aggravated offense" under Nebraska’s Sex Offender Registration Act (SORA), ordering lifetime registration.
- On appeal Kresha challenged (1) the lifetime SORA classification as erroneous and (2) the sentences as excessive.
- The State conceded record lacked evidence of genital touching under clothing for the child-sexual-assault counts. The court of appeals agreed and modified registration to 25 years; it otherwise affirmed sentences.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kresha's convictions qualified as an "aggravated offense" under SORA (triggering lifetime registration) | Kresha: "Direct genital touching" requires touching of genitals under clothing; record lacks such evidence, so no aggravated offense | State: conceded no evidence of genital touching under clothing for child-assault counts; district court erred | Court: "Direct genital touching" requires touching genitals not through clothing; no record evidence of that here; lifetime registration reduced to 25 years |
| Whether the imposed sentences were excessive/abuse of discretion | Kresha: court overemphasized offense nature and overlooked mitigating factors (age, lack of criminal history, employment/ties) | State: sentences within statutory limits and justified by nature/circumstances of offenses and victim impact | Court: sentences fall within statutory limits; district court considered required factors and did not abuse discretion; affirmed sentences |
Key Cases Cited
- State v. Hamilton, 277 Neb. 593 (Neb. 2009) (standard of independent appellate review for questions of law)
- State v. Dominguez, 290 Neb. 477 (Neb. 2015) (appellate review of sentencing—abuse of discretion and factors to consider)
- U.S. v. White, 782 F.3d 1118 (10th Cir. 2015) (describing "sexual act" as direct touching of genitals under certain intent)
- U.S. v. Jennings, 496 F.3d 344 (4th Cir. 2007) (interpreting "direct touching" in the definition of sexual act to mean touching unclothed private parts)