STATE OF NEBRASKA, APPELLANT AND CROSS-APPELLEE, v. PATRICK M. PAULY, APPELLEE AND CROSS-APPELLANT.
Nos. S-21-401, S-21-409
Nebraska Supreme Court
April 22, 2022
311 Neb. 418
Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 07/15/2022 01:06 AM CDT
Sentences: Appeal and Error. When reviewing a sentence within the statutory limits, whether for leniency or excessiveness, an appellate court reviews for an abuse of discretion. - Judges: Words and Phrases. A judicial abuse of discretion exists only when the reasons or rulings of a trial judge are clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result in matters submitted for disposition.
- Motions to Dismiss: Jurisdiction: Appeal and Error. In determining whether the district court erred in denying a party‘s motion to dismiss for lack of subject matter jurisdiction, an appellate court employs a de novo standard of review.
- Jury Instructions: Judgments: Appeal and Error. Whether jury instructions given by a trial court are correct is a question of law. On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.
- Convictions: Appeal and Error. In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.
- Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, 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. - Jurisdiction: Appeal and Error. Where a lower court lacks subject matter jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.
- Statutes. A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.
- Statutes. A court must place on a statute a reasonable construction which best achieves the statute‘s purpose, rather than a construction which would defeat that purpose.
- Judgments: Appeal and Error. When the record demonstrates that the decision of the trial court is correct, although such correctness is based on different grounds from those assigned by the trial court, an appellate court will affirm.
- Sentences: Appeal and Error. A sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court‘s discretion.
- Statutes: Sentences: Appeal and Error. While certain guidelines are set forth by statute, neither the trial court‘s sentencing determination nor an appellate court‘s review of that determination for an abuse of discretion is formulaic or simply a matter of doctrine.
- Sentences: Appeal and Error. It is not the function of an appellate court to conduct a de novo review of the record to determine whether a sentence is appropriate.
- Sentences. Evidence regarding a defendant‘s life, character, and previous conduct, as well as prior convictions, is highly relevant to the determination of a proper sentence.
- Convicted Sex Offender: Statutes: Legislature: Intent. The Sex Offender Registration Act is a civil regulatory scheme intended by the Legislature to protect the public from the danger posed by sex offenders.
- Moot Question. Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the resolution of the dispute that existed at the beginning of the litigation.
- Moot Question: Words and Phrases. A moot case is one which seeks to determine a question that no longer rests upon existing facts or rights—i.e., a case in which the issues presented are no longer alive.
- Rules of the Supreme Court: Appeal and Error. Generally, parties who wish to secure appellate review of their claims must abide by the rules of the Nebraska Supreme Court.
Rules of the Supreme Court: Appeal and Error. Depending on the particulars of each case, failure to comply with the mandates of Neb. Ct. R. App. P. § 2-109(D) (rev. 2022) may result in an appellate court‘s waiving the error, proceeding on a plain error review only, or declining to conduct any review at all.- Appeal and Error. Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.
Appeals from the District Court for Sarpy County: GEORGE A. THOMPSON, Judge. Affirmed.
R. Scott Earl, Deputy Sarpy County Attorney, for appellant.
Marcus A. Sladek, of Dornan, Troia, Howard, Breitkreutz, Conway & Dahlquist, P.C., L.L.O., for appellee.
HEAVICAN, C.J., MILLER-LERMAN, CASSEL, STACY, FUNKE, PAPIK, and FREUDENBERG, JJ.
FUNKE, J.
I. INTRODUCTION
Patrick M. Pauly was convicted of four counts of first degree sexual assault and sentenced to concurrent terms of 5 years’ probation for each conviction. The State appeals, arguing the district court handed down excessively lenient sentences. Pauly cross-appeals, arguing the district court erred in denying his motion for directed verdict, motion to dismiss, and proposed jury instructions. For reasons set forth herein, we affirm Pauly‘s convictions and sentences.
II. BACKGROUND
In May 2019, the State filed an information charging Pauly, who was born in May 1997, with four counts of first degree sexual assault under
The victim, K.H., was 15 years old at the time of trial in October 2020. Pauly‘s mother babysat K.H. and K.H.‘s brother, J.H., when they were between the ages of 4 and 12. K.H. testified that she was a repeat victim of sexual assault at the hands of Pauly. Although she could not recall the exact number of times she was assaulted, she was able to testify to four separate incidents where Pauly assaulted her.
(a) Assault No. 1
K.H. testified that the first incident happened in Pauly‘s bedroom, located in the basement of the Pauly residence. At that time, K.H. and J.H. were in Pauly‘s bedroom when Pauly asked J.H. to get him a soda. After J.H. left the room, Pauly told K.H. to take her pants off and lie on the bed. Pauly then closed the door, removed his clothing, lay on top of her, and inserted his penis into her vagina. On cross-examination, K.H. testified that she thought she was around 7 years old at the time, but responded “[m]aybe” when defense counsel asked her if she was 5 or 6 years old.
(b) Assault No. 2
The next incident occurred while K.H. and J.H. were watching Pauly play video games in his bedroom which was, at this point, located in the upstairs area of the home. Pauly asked J.H. to look out the window to see if anyone was there, then told K.H. to “pull [her] pants down.” Pauly then pulled his own pants down, lay on top of her, and put his penis in her vagina. He began moving up and down after penetrating her. On cross-examination, K.H. testified that this incident lasted for about a minute while J.H. was a foot away. K.H. could not recall how much time had passed between the first and second incident, but thought that the second incident occurred a couple of months after the first. J.H. testified that he did not hear anything while standing at the window.
The third incident occurred when Pauly penetrated K.H. with his finger. K.H. testified that Pauly had a “Halloween finger” he placed over his own finger and told K.H. that “this is going to feel good.” Pauly instructed K.H. to take off her pants and lie on the bed. He inserted the “Halloween finger” into her vagina, causing K.H. to say “ow.” As she began to scream, Pauly covered her mouth. K.H. could not say when this incident happened or how old she was at the time, and she could not recall whether this incident happened before or after the second incident.
(d) Assault No. 4
The next incident occurred when Pauly‘s mother and J.H. went to the airport. Pauly told K.H. to take her pants off, and then he lay on top of her and put his penis in her vagina. K.H. also testified that on another occasion, Pauly told her to perform oral sex on him. K.H. could not recall how old she was when this incident occurred.
(e) Motion for Directed Verdict
At the close of the State‘s case, counsel for Pauly made an oral motion for directed verdict. Counsel also made a “motion to quash” for lack of jurisdiction. Counsel argued that pursuant to
(f) Testimony of Pauly‘s Mother
Pauly‘s mother testified that when she would leave to pick up her sister from the airport, she would always take both K.H. and J.H. with her, and that she would never leave just one of them at home. Pauly‘s mother also testified that during the time Pauly‘s bedroom was located in the basement, K.H. and J.H. were not allowed to go to the basement. Pauly‘s mother further testified that Pauly did not play video games in his basement/bedroom because he did not have a television or video game system down there. She also claimed that there was “no way” Pauly could have closed and latched the basement door because the door was too large for the doorframe and would not shut.
(g) Jury Instructions and Verdict
Pauly requested the inclusion of two jury instructions regarding the date when the alleged incidents occurred. The first proposed jury instruction stated: “For each count, you must determine that the act took place on or after May 30, 2011. Source:
The material elements of the crimes of four counts of First degree sexual assault are:
1. The defendant did subject K.H. to sexual penetration without consent of the victim, and/or when he knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct.
2. The act took place on or after May 30, 2011 through January 1, 2016.
3. The act took place in Sarpy County, Nebraska.
If you decide that the State proved each element beyond a reasonable doubt, then you must find the defendant guilty. Otherwise, you must find the defendant not guilty.
The court denied Pauly‘s requested jury instructions and the case was submitted to the jury, which found Pauly guilty on all four counts of first degree sexual assault.
Pauly then made a motion for a judgment notwithstanding the verdict, reasserting his jurisdictional argument under
(h) Motion for New Trial
Pauly timely filed a motion for reconsideration and/or new trial, arguing that the denial of his motion to quash, the denial of his proposed jury instructions, and the denial of his motion for judgment notwithstanding the verdict were all errors of law that materially affected his substantial right to a fair trial. His motion was largely based on his prior jurisdictional arguments under
2. PRESENTENCE INVESTIGATION REPORT
The presentence investigation report showed that Pauly had no criminal record and that he had never been sentenced to a term of probation or to a period of incarceration. Pauly reported only one previous sexual encounter with his then-girlfriend when they were in high school. Pauly admitted that he has multiple social media accounts, but he denied ever having a sexual conversation on any of those platforms. Pauly was administered the “Vermont Assessment of Sex Offender Risk-2,” which is used to assess recidivism risk among adult
A clinical psychological evaluation concluded that Pauly could be safely managed in the community with appropriate safeguards. The evaluation recognized that Pauly was around 14 years of age at the time of the offenses and that since age 14, Pauly has not engaged in any other known or reported forms of sexual misconduct. According to the evaluation, Pauly does not have a significant history of antisocial behaviors, of violence, or of any other instances of sexual misconduct.
3. SENTENCING
At sentencing, the State argued for a period of incarceration, while Pauly argued he was a good candidate for probation. In sentencing Pauly, the court referenced
[I]f the defendant was under 18 years of age at the time he or she committed the crime for which he or she is convicted, the court may, in its discretion, instead of imposing the penalty provided for the crime, make such disposition of the defendant as the court deems proper under the Nebraska Juvenile Code.
The court emphasized that Pauly was a juvenile at the time he committed the offenses and that the juvenile code does not permit incarceration.
The court acknowledged the severity of the crimes, but also noted that it had to take into consideration the classifications under
Ultimately, the court sentenced Pauly to concurrent terms of 5 years’ probation for each of his four convictions and ordered him to register under the Sex Offender Registration Act (SORA). The court also sentenced Pauly to serve 90 days in jail, but gave him credit for the 120 days he already served. The court further noted that because the State did not pursue any determination pursuant to
The State requested and received the Attorney General‘s approval to appeal the sentences as excessively lenient pursuant to
III. ASSIGNMENTS OF ERROR
The State assigns, restated and consolidated, that the district court erred by ordering excessively lenient sentences by (1) sentencing Pauly to probation and (2) failing to find aggravation under the SORA or, in the alternative, by committing plain error by failing to make a finding of aggravation under the SORA.
In his cross-appeal, Pauly assigns, restated, that the trial court erred in (1) denying his motion for directed verdict, (2) denying his motion to dismiss for lack of subject matter jurisdiction, and (3) refusing his proposed jury instruction regarding the dates the alleged incidents occurred.
IV. STANDARD OF REVIEW
[1,2] When reviewing a sentence within the statutory limits, whether for leniency or excessiveness, an appellate court
[3] In determining whether the district court erred in denying a party‘s motion to dismiss for lack of subject matter jurisdiction, an appellate court employs a de novo standard of review.3
[4] Whether jury instructions given by a trial court are correct is a question of law.4 On a question of law, an appellate court is obligated to reach a conclusion independent of the determination reached by the court below.5
[5,6] In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence.6 Such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support the conviction.7 When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, 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.8
1. JURISDICTION
[7] Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.9 Where a lower court lacks subject matter jurisdiction to adjudicate the merits of a claim, issue, or question, an appellate court also lacks the power to determine the merits of the claim, issue, or question presented to the lower court.10
On cross-appeal, Pauly argues, in part, that the district court erred in denying his motion to dismiss for lack of subject matter jurisdiction. The essence of Pauly‘s argument is that
[8,9] Absent a statutory indication to the contrary, words in a statute will be given their ordinary meaning.11 An appellate court will not read anything plain, direct, or unambiguous out of a statute.12 A court must attempt to give effect to all parts of a statute, and if it can be avoided, no word, clause, or sentence will be rejected as superfluous or meaningless.13 A court must place on a statute a reasonable construction which best achieves the statute‘s purpose, rather than a construction which would defeat that purpose.14
The common denominator of the preceding statutes is the use of the word “juvenile.” Thus, when read together, these statutes support a determination that the juvenile court could not have exercised jurisdiction over the matter because Pauly was not a juvenile at the time he was charged.
Such a determination is consistent with the purpose of the juvenile code, which is to serve the best interests of the juveniles who fall within it.16 This is also consistent with our prior holding that the juvenile court‘s jurisdiction ends when the juvenile reaches the age of majority, but the district court‘s jurisdiction continues.17
Put differently, whether the juvenile court has jurisdiction over a person is determined not by the person‘s age at the time of the offense, but, rather, by the person‘s age at the time he or she is charged for the offense. Thus,
On cross-appeal, Pauly also argues the district court erred in refusing his proposed jury instructions regarding his age at the time of the offenses. Pauly contends that the instructions were necessary because if the jury determined that he was under 14 years of age at the time of the offenses, the district court would have no jurisdiction over the matter. In support of these proposed instructions, Pauly cited
2. EXCESSIVELY LENIENT SENTENCES
(a) Legally Permissible Sentences
All crimes in Nebraska are statutory in nature.20 Sentences imposed upon persons convicted of a crime are also statutory.21 Thus, in order to resolve the question of whether the district court erred in sentencing Pauly to concurrent terms of 5 years’ probation for each of his four Class II felony convictions, it is necessary to examine the Nebraska statutes pertaining to criminal penalties and eligibility for probation.
Section
[10] Nevertheless, the district court was statutorily authorized to sentence Pauly to terms of probation under
Under
Whenever a court considers sentence for an offender convicted of either a misdemeanor or a felony for which mandatory or mandatory minimum imprisonment is not specifically required, the court may withhold sentence of imprisonment unless, having regard to the nature and circumstances of the crime and the history, character, and condition of the offender, the court finds that imprisonment of the offender is necessary for protection of the public because:
(a) The risk is substantial that during the period of probation the offender will engage in additional criminal conduct;
(b) The offender is in need of correctional treatment that can be provided most effectively by commitment to a correctional facility; or
(c) A lesser sentence will depreciate the seriousness of the offender‘s crime or promote disrespect for law.
Similar to the defendant in Hamik, here, Pauly was convicted of the crime of first degree sexual assault, a Class II felony, for which the law prescribes a minimum sentence, but no mandatory minimum. Thus, Pauly was eligible to be sentenced to a term of probation for that crime in lieu of incarceration.
(b) Excessive Leniency
[11] Having concluded that probation was a legally permissible sentence, we turn to the question of whether Pauly‘s sentences were excessively lenient under the facts reflected in the record. When the State appeals from a sentence, contending that it is excessively lenient, this court reviews the record for an abuse of discretion, and a grant of probation will not be disturbed unless there has been an abuse of discretion by the sentencing court.25 A sentence imposed by a district court that is within the statutorily prescribed limits will not be disturbed on appeal unless there appears to be an abuse of the trial court‘s discretion.26 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.27
(1) The nature and circumstances of the offense;
(2) The history and characteristics of the defendant;
(3) The need for the sentence imposed;
(a) To afford adequate deterrence to criminal conduct;
(b) To protect the public from further crimes of the defendant;
(c) To reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; and
(d) To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner; and
(4) Any other matters appearing in the record which the appellate court deems pertinent.
In State v. Harrison,28 we recognized that where the sentence alleged to be excessively lenient is one of probation, it is also necessary for the trial court and the reviewing appellate court to consider the provisions of
The following grounds, while not controlling the discretion of the court, shall be accorded weight in favor of withholding sentence of imprisonment:
(a) The crime neither caused nor threatened serious harm;
(b) The offender did not contemplate that his or her crime would cause or threaten serious harm;
(c) The offender acted under strong provocation;
(d) Substantial grounds were present tending to excuse or justify the crime, though failing to establish a defense;
(e) The victim of the crime induced or facilitated commission of the crime;
(f) The offender has compensated or will compensate the victim of his or her crime for the damage or injury the victim sustained;
(g) The offender has no history of prior delinquency or criminal activity and has led a law-abiding life for a substantial period of time before the commission of the crime;
(h) The crime was the result of circumstances unlikely to recur;
(i) The character and attitudes of the offender indicate that he or she is unlikely to commit another crime;
(j) The offender is likely to respond affirmatively to probationary treatment; and
(k) Imprisonment of the offender would entail excessive hardship to his or her dependents.
(4) When an offender who has been convicted of a crime is not sentenced to imprisonment, the court may sentence him or her to probation.
We agree with the State‘s assessment of the severity of the crimes committed by Pauly. However, based on the evidence pertaining to the numerous other relevant factors under the district court‘s consideration at sentencing, we cannot conclude that Pauly‘s sentences were untenable, unreasonable, or clearly against justice or conscience, reason, and evidence.
[12,13] While certain guidelines are set forth by statute, neither the trial court‘s sentencing determination nor our review of that determination for an abuse of discretion is formulaic or simply a matter of doctrine.29 The sentencing court is not limited in its discretion to any mathematically applied set of factors.30 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.31 It is not the function of an appellate court to conduct a de novo
These were very serious crimes with an egregious set of facts. Still, the seriousness of the crimes committed against K.H., which weighs in favor of imprisoning Pauly, does not, by itself, lead to the conclusion that the district court abused its discretion in sentencing Pauly to concurrent terms of 5 years’ probation for each conviction in lieu of incarceration. Although the seriousness of these crimes is not lost on this court, a sentence should fit the offender and not merely the crime.34
In State v. Gibson,35 we recently considered a sentence of probation in lieu of incarceration for a conviction of a Class II felony. In that case, the defendant pled guilty to attempted first degree sexual assault of a child and was sentenced to 180 days’ incarceration and 5 years’ probation. The defendant was also subject to SORA. In finding that the defendant‘s sentence of probation was not excessively lenient, we recognized other cases involving Class II felonies of first degree sexual assault and sexual assault of a child, where a sentence of 5 years’ probation with strict and demanding terms had been found to not be excessively lenient where the defendants were considered to be neither pedophiles nor sexual predators, had generally otherwise been law-abiding citizens, were remorseful, and were at a low risk to offend.36 In finding that the sentence of probation in Gibson was not excessively lenient, we emphasized that the presentence investigation report demonstrated
Like the defendant in Gibson, here, the presentence investigation report demonstrates that Pauly does not have a criminal record and is at a low risk to reoffend. Further, the psychological evaluation concluded that Pauly does not have a significant history of antisocial behaviors, of violence, or of any other instances of sexual misconduct. Additionally, Pauly was around 14 years old at the time he committed these offenses.
To the extent the State contends the district court gave improper consideration to Nebraska‘s juvenile jurisdiction statutes, we disagree. Although the juvenile jurisdiction statutes are not applicable here, Pauly‘s age at the time the offenses were committed was a relevant and proper factor for the district court to consider as it goes directly to the nature and circumstances of the offense, as well as to the history and characteristics of the defendant.37
[14] While there is temptation on a visceral level to conclude that anything less than incarceration depreciates the seriousness of crimes, it is the function of the sentencing judge, in the first instance, to evaluate the crime and the offender.38 Evidence regarding a defendant‘s life, character, and previous conduct, as well as prior convictions, is highly relevant to the determination of a proper sentence.39
The sentences imposed by the district court were lenient, but we cannot conclude that the court abused its discretion by issuing sentences that were excessively lenient. In light of all the relevant sentencing considerations, the sentences were not untenable, unreasonable, or clearly against justice or conscience, reason, and evidence. Therefore, because the
(c) SORA
[15] It is undisputed that as a result of his convictions for first degree sexual assault, Pauly is subject to SORA. SORA is a civil regulatory scheme intended by the Legislature to protect the public from the danger posed by sex offenders.40 Generally, SORA requires individuals that plead guilty to or are convicted of certain enumerated offenses to register with the county sheriff in the counties where they reside, work, and attend school.41 Pauly was convicted of four counts of first degree sexual assault under
Those persons to whom SORA requirements apply generally must register “during any period of supervised release, probation, or parole” and then must continue to comply with SORA for a registration period following “discharge from probation, parole, or supervised release or release from incarceration, whichever date is most recent.”43
SORA defines an “[a]ggravated offense” as
[a]n offense under [§] 29-4003 which involves the penetration of, direct genital touching of, oral to anal contact
with, or oral to genital contact with (a) a victim age thirteen years or older without the consent of the victim, (b) a victim under the age of thirteen years, or (c) 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.45
The State argues the district court erred by failing to make a finding of aggravation. In response, Pauly asserts the State‘s argument is moot because he was, in fact, directed by the Nebraska State Patrol to register under SORA for life.
[16,17] Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the resolution of the dispute that existed at the beginning of the litigation.46 A moot case is one which seeks to determine a question that no longer rests upon existing facts or rights—i.e., a case in which the issues presented are no longer alive.47 The central question in a mootness analysis is whether changes in circumstances that prevailed at the beginning of litigation have forestalled any occasion for meaningful relief.48
In its reply brief, the State concedes the issue is moot if the Nebraska State Patrol “is the proper agency to make this [duration] determination.”49 Prior to statutory amendments to SORA in 2009, there was no question that a sentencing court was to make a determination as to whether a registrable offense under SORA rose to the level of an aggravated offense.50 Prior to 2009, that authority was made clear by a provision within SORA that expressly directed sentencing courts to make the
Then, in State v. Wilson,53 a sentencing court found that the defendant had committed an aggravated offense, pursuant to his conviction for first degree sexual assault, and stated that the defendant was required to register under SORA for life. On appeal, the State argued that pursuant to the 2009 SORA amendments, the Nebraska State Patrol was now responsible for making the aggravation determination, while the defendant argued that sentencing courts must make that determination. In support of its argument, the State pointed to
This court cautioned that it was difficult to reconcile the State‘s position with the provision of SORA providing that when sentencing a person for a registrable offense under SORA, the court has a duty to provide the defendant with written notification of the duty to register, and that the written notification shall, among other things, inform the defendant of “the duration of time he or she will be subject to the act.”54 We declined to reconcile
The instant case again asks this court to determine the scope of the State Patrol‘s authority under SORA, but doing so is unnecessary. The parties agree that Pauly is subject to lifetime registration under SORA, and as such, the issue is moot.
3. CROSS-APPEAL
(a) Brief on Cross-Appeal
[18,19] Generally, parties who wish to secure appellate review of their claims must abide by the rules of the Nebraska Supreme Court.57 Any party who fails to properly identify and present its claim does so at its own peril.58 Depending on the particulars of each case, failure to comply with the mandates of
A cross-appeal must be properly designated, pursuant to
Here, Pauly‘s cross-appeal fails to fully abide with the rules for the brief of an appellant because his brief on cross-appeal fails to set forth a separate (1) statement of the basis of jurisdiction on cross-appeal, (2) statement of the case on cross-appeal, (3) assignments of error on cross-appeal, (4) propositions of law on cross-appeal, (5) statement of facts on cross-appeal, and (6) summary of the argument on cross-appeal. The decisive particulars governing how we treat failures to fully abide with the rules for the brief of an appellant depend on the nature of the noncompliance.63 In this appeal, we elect to proceed to review for plain error.
[20] Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process.64 As we have already addressed Pauly‘s assignments of error regarding his motion to quash/dismiss and his proposed jury instructions, the only remaining assignment of error is the court‘s overruling of his motion for directed verdict.
(b) Motion for Directed Verdict
Pauly assigns the district court erred in denying his motion for directed verdict at the conclusion of the State‘s case. However, after his motion for directed verdict was denied, Pauly called his mother to the stand to testify on his behalf. A defendant who moves for a directed verdict at the close of the
Pauly also argues that the court erred in overruling his motion for a directed verdict because the prosecution presented insufficient evidence to warrant his convictions. He asserts that there were numerous discrepancies in K.H.‘s testimony, that no other witnesses could corroborate K.H.‘s claims, that there was contradictory testimony from other witnesses, that there was a lack of physical evidence to support K.H.‘s claims, and that there was overall uncertainty surrounding K.H.‘s claims.
Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, 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, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.66
Accordingly, we will not review the credibility of K.H. or any of the other witnesses, resolve the conflicts in K.H.‘s testimony, or reweigh the evidence of Pauly‘s guilt; these were determinations appropriate only for the trier of fact.67 K.H.
VI. CONCLUSION
For the foregoing reasons, we affirm Pauly‘s convictions and sentences.
AFFIRMED.