State v. Kresha , 25 Neb. Ct. App. 543 ( 2018 )

Nebraska Supreme Court Online Library
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Nebraska Court of A ppeals A dvance Sheets
25 Nebraska A ppellate R eports
STATE v. KRESHA
Cite as 25 Neb. Ct. App. 543
State of Nebraska, appellee, v.
Patrick K resha, appellant.
___ N.W.2d ___
Filed February 13, 2018. No. A-17-525.
1. Statutes: Judgments: Appeal and Error. Statutory interpretation pre­
sents 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 sen-
tences 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 vic-
tim’s clothing.
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STATE v. KRESHA
Cite as 25 Neb. Ct. App. 543
7. Sentences. When imposing a sentence, the sentencing judge should
consider the defendant’s (1) age, (2) mentality, (3) education and expe-
rience, (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 defend­
ant’s demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life.
Appeal from the District Court for Polk County: R achel A.
Daugherty, Judge. Affirmed as modified.
Timothy P. Matas for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Pirtle, R iedmann, and A rterburn, Judges.
R iedmann, Judge.
INTRODUCTION
Patrick Kresha appeals his plea-based convictions of two
counts of third degree sexual assault of a child and two
counts of third degree sexual assault. He claims that the
district court erred in imposing excessive sentences and in
determining that he was subject to lifetime registration under
Nebraska’s Sex Offender Registration Act (SORA), Neb. Rev.
Stat. §§ 29-4001 to 29-4014 (Reissue 2016). We conclude that
the court erred in finding that Kresha committed an aggra-
vated offense for purposes of SORA and therefore modify the
sentencing order to require that he instead register as a sex
offender for 25 years. We otherwise affirm.
BACKGROUND
Kresha pled no contest to an amended information charg-
ing him with two counts of third degree sexual assault of a
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STATE v. KRESHA
Cite as 25 Neb. Ct. App. 543
child and two counts of third degree sexual assault. According
to the factual basis provided by the State at the plea hearing,
on or about August 17, 2010, and May 18, 2011, Kresha, who
was born in 1962, went into the bedroom of M.K., who was
born in 1998, while M.K. was sleeping and touched her geni-
talia for the purpose of his own sexual gratification. Similarly,
between January 1, 2010, and December 31, 2012, Kresha
touched the breast and buttocks of J.G., who was born in
1998, for the purpose of his own sexual gratification. In addi-
tion, between January 1, 2010, and May 6, 2013, Kresha sub-
jected E.S., who was born in 1996, and A.G., who was born in
1995, to sexual contact without their consent. All of the events
occurred in Polk County, Nebraska.
The district court accepted Kresha’s pleas and found him
guilty. He was sentenced to consecutive terms of imprison-
ment of 5 to 5 years, 5 to 5 years, 1 to 1 year, and 1 to 1
year. At the sentencing hearing, the court also determined that
Kresha had committed an “aggravated offense” as defined in
SORA and that he would therefore be required to register on
Nebraska’s sex offender registry for life. Kresha now appeals
to this court.
ASSIGNMENTS OF ERROR
Kresha assigns, restated and renumbered, that the district
court erred (1) in determining that his offenses were aggra-
vated offenses for purposes of the lifetime registration require-
ment of SORA and (2) in imposing excessive sentences that
constituted an abuse of discretion.
STANDARD OF REVIEW
[1] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion
reached by the trial court. State v. Hamilton, 277 Neb. 593, 763
N.W.2d 731 (2009).
[2] An appellate court will not disturb sentences that are
within statutory limits, unless the district court abused its
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STATE v. KRESHA
Cite as 25 Neb. Ct. App. 543
discretion in establishing the sentences. State v. Dominguez,
290 Neb. 477, 860 N.W.2d 732 (2015).
ANALYSIS
Aggravated Offense Under SORA.
[3,4] Pertinent to this case, any sex offender convicted of
a registrable offense under § 29-4003 punishable by impris-
onment for more than 1 year and convicted of an aggravated
offense shall register on the sex offender registry for life. See
§ 29-4005(1)(b)(iii). For purposes of SORA and as relevant to
this case, the term “aggravated offense” means any registrable
offense under § 29-4003 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. § 29-4001.01(1).
The registrable offenses under § 29-4003 include third degree
sexual assault of a child, but SORA does not define “direct
genital touching.”
Kresha asserts that “direct genital touching” requires the
touching of the victim’s genitals under the clothing. He argues
that there is no evidence in the record to support a finding of
any touching which occurred under the clothing and that there-
fore, the court erred in finding that the offense was an aggra-
vated offense subject to lifetime registration. The State agrees
that there is no evidence of genital touching under the clothing
regarding the two counts of third degree sexual assault of a
child; thus, the State concedes that the court erred in finding
the offenses to be aggravated.
[5] We agree with the parties that “direct genital touching” is
not defined under Nebraska law. The term “sexual contact” is
defined under Nebraska law and provides in part:
Sexual contact means the intentional touching of the vic-
tim’s sexual or intimate parts or the intentional touching
of the victim’s clothing covering the immediate area of
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the victim’s sexual or intimate parts. Sexual contact shall
also mean the touching by the victim of the actor’s sexual
or intimate parts or the clothing covering the immediate
area of the actor’s sexual or intimate parts when such
touching is intentionally caused by the actor.
Neb. Rev. Stat. § 28-318(5) (Reissue 2016). Similarly, the
term “sexual contact” is defined under federal law as “the
intentional touching, either directly or through the clothing,
of the genitalia, anus, groin, breast, inner thigh, or buttocks
of any person with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any person.”
18 U.S.C. § 2246(3) (2012). Thus, these definitions 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] Likewise, the term “sexual act” is defined under fed-
eral law to include “the intentional touching, not through
the clothing, of the genitalia of another person who has not
attained the age of 16 years with an intent to abuse, humili-
ate, harass, degrade, or arouse or gratify the sexual desire
of any person.” § 2246(2)(D). And this definition has been
summarized as “the direct touching of genitals with certain
sexual or abusive intents.” U.S. v. White, 782 F.3d 1118, 1137
(10th Cir. 2015). See, also, U.S. v. Jennings, 496 F.3d 344
(4th Cir. 2007) (direct touching under definition of sexual
act in § 2246(2) means touching of victim’s unclothed pri-
vate parts). We also note that the federal law’s definition
of “sexually explicit conduct” makes a distinction between
direct touching and touching through clothing. See 18 U.S.C.
§ 3509(a)(9)(A) (2012). Based on the foregoing, we conclude
that the term “direct genital touching” for purposes of find-
ing an aggravated offense under SORA requires evidence
that the actor touched the victim’s genitals under the vic-
tim’s clothing.
For purposes of lifetime registration under SORA, the
defend­ ant must have been convicted of a crime that is a
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STATE v. KRESHA
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registrable offense and punishable by more than 1 year in
prison. Thus, in the present case, only the convictions for third
degree sexual assault of a child could constitute aggravated
offenses. We concur with the parties that there is no evidence
in the record of direct genital touching.
The record establishes that Kresha touched J.G.’s breasts
and buttocks, which does not constitute genital touching,
and that he touched M.K.’s vaginal area over her clothing.
Therefore, the evidence is insufficient to support a finding of
direct genital touching for purposes of an aggravated offense
under SORA. Accordingly, the district court erred in finding
that Kresha was required to register for life. Instead, he is
required to register for 25 years. See § 29-4005. We therefore
modify the sentencing order to require that Kresha register for
25 years rather than life.
Excessive Sentences.
Kresha also asserts that the sentences imposed by the dis-
trict court are excessive and constitute an abuse of discretion.
We disagree.
Third degree sexual assault of a child is a Class IIIA felony.
Neb. Rev. Stat. § 28-320.01 (Reissue 2016). At the time of
Kresha’s offenses, this offense was punishable by a maxi-
mum of 5 years’ imprisonment. See Neb. Rev. Stat. § 28-105
(Reissue 2008). Third degree sexual assault is a Class I misde-
meanor, which carries a punishment of up to 1 year’s impris-
onment. See Neb. Rev. Stat. §§ 28-320 and 28-106 (Reissue
2008). Thus, Kresha’s sentences fall within the statutory limits.
Nevertheless, he argues that they are excessive because the
district court relied heavily on the nature and circumstances
of the offenses when there were other factors that should have
mitigated his sentences.
An appellate court will not disturb sentences that are within
statutory limits, unless the district court abused its discretion
in establishing the sentences. State v. Dominguez, 290 Neb.
477, 860 N.W.2d 732 (2015).
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25 Nebraska A ppellate R eports
STATE v. KRESHA
Cite as 25 Neb. Ct. App. 543
[7,8] 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. Id. The sentencing court is not limited to any math-
ematically applied set of factors. Id. 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. Id.
At the sentencing hearing, the court made clear that it
considered the required factors as well as the information
contained in the presentence investigation report. We recog-
nize that there were mitigating factors present here, including
Kresha’s lack of a significant criminal history, his employment
record and ties to the community, and the lack of violence in
the offenses. However, as the district court emphasized, the
circumstances of the offenses support a more significant sen-
tence. Kresha victimized four teenage girls, one of whom was
his own daughter. There were letters in the presentence inves-
tigation report from each victim detailing the impact Kresha’s
actions have had on their lives, and two of the victims spoke
at sentencing.
The court emphasized the effect Kresha has had on all
of his victims, and most importantly, his own daughter with
whom he violated the core of the parent-child relationship. The
court opined that had the victims not reported his actions, he
would have continued to victimize young women. The court
explained its responsibility to look out for the welfare of those
who cannot look out for themselves, which, in this case, is
Kresha’s own daughter and her teenage friends. It therefore
found that probation was not appropriate. Similarly, the pro-
bation officer who conducted the presentence investigation
opined that probation was not appropriate and recommended
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STATE v. KRESHA
Cite as 25 Neb. Ct. App. 543
a sentence of incarceration, because Kresha took advantage of
his daughter’s friends for his own sexual gratification. Based
on the record before us, we cannot conclude that the district
court abused its discretion in the sentences imposed.
CONCLUSION
We conclude that the district court erred in finding evidence
in the record of direct genital touching for purposes of life-
time registration pursuant to SORA. We therefore modify the
sentencing order to require that Kresha register for 25 years.
Finding that Kresha’s sentences are not excessive, we other-
wise affirm his convictions and sentences.
A ffirmed as modified.