State v. Kilgore , 30 Neb. Ct. App. 273 ( 2021 )


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  • Nebraska Supreme Court Online Library
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    11/02/2021 08:08 AM CDT
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    Nebraska Court of Appeals Advance Sheets
    30 Nebraska Appellate Reports
    STATE v. KILGORE
    Cite as 
    30 Neb. App. 273
    State of Nebraska, appellee, v.
    Marcus A. Kilgore, appellant.
    ___ N.W.2d ___
    Filed October 19, 2021.   No. A-20-886.
    1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal
    case from the county court, the district court acts as an intermediate
    court of appeals, and its review is limited to an examination of the
    record for error or abuse of discretion.
    2. Courts: Appeal and Error. Both the district court and a higher appel-
    late court generally review appeals from the county court for error
    appearing on the record.
    3. Judgments: Appeal and Error. When reviewing a judgment for errors
    appearing on the record, an appellate court’s inquiry is whether the deci-
    sion conforms to the law, is supported by competent evidence, and is
    neither arbitrary, capricious, nor unreasonable.
    4. Criminal Law: Courts: Appeal and Error. When deciding appeals
    from criminal convictions in county court, an appellate court applies the
    same standards of review that it applies to decide appeals from criminal
    convictions in district court.
    5. Convictions: Evidence: Appeal and Error. 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 favor-
    ably to the State, is sufficient to support the conviction.
    6. Criminal Law: Parent and Child. 
    Neb. Rev. Stat. § 28-1413
    (1)
    (Reissue 2016) codifies the common-law defense against criminal liabil-
    ity for a parent’s use of force in, among other circumstances, punishing
    his or her child’s misbehavior.
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    Nebraska Court of Appeals Advance Sheets
    30 Nebraska Appellate Reports
    STATE v. KILGORE
    Cite as 
    30 Neb. App. 273
    7. ____: ____. At common law, a parent, or one standing in the relation
    of parent, was not liable either civilly or criminally for moderately and
    reasonably correcting a child, but it was otherwise if the correction was
    immoderate and unreasonable.
    8. ____: ____. The question of whether a parent’s use of physical force
    to discipline his or her child was protected under 
    Neb. Rev. Stat. § 28-1413
    (1) (Reissue 2016) presents a question of fact for the fact
    finder.
    9. Criminal Law: Evidence: Appeal and Error. In reviewing a suffi-
    ciency of the evidence claim, 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 ele-
    ments of the crime beyond a reasonable doubt.
    Appeal from the District Court for Douglas County, Duane
    C. Dougherty, Judge, on appeal thereto from the County Court
    for Douglas County, Thomas K. Harmon, Judge. Judgment of
    District Court affirmed.
    Thomas C. Riley, Douglas County Public Defender, and
    Brian D. Craig for appellant.
    Matthew Kuhse, Omaha City Prosecutor, and Kevin J. Slimp
    for appellee.
    Riedmann, Bishop, and Arterburn, Judges.
    Bishop, Judge.
    INTRODUCTION
    Marcus A. Kilgore appeals from an order of the Douglas
    County District Court affirming his conviction and sentence
    in the county court for Douglas County for caretaker neglect
    in violation of the Omaha Municipal Code. On appeal to this
    court, Kilgore claims that the evidence was insufficient to sup-
    port his conviction. We affirm.
    BACKGROUND
    On August 28, 2019, Kilgore’s 9-year-old daughter went
    to her school counselor expressing that she was feeling pain
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    Nebraska Court of Appeals Advance Sheets
    30 Nebraska Appellate Reports
    STATE v. KILGORE
    Cite as 
    30 Neb. App. 273
    from her lower back. She reported that Kilgore had spanked
    her and her 12-year-old brother the previous day with a belt.
    When the children returned home from school that previous
    day, Kilgore instructed them to clean their rooms and finish
    other chores around the house. Kilgore’s son testified that
    Kilgore set a time limit of about 11⁄2 hours for the two chil-
    dren to finish their chores. When the chores were not done
    on time because they were “messing around,” Kilgore warned
    his children that he would spank them if they did not finish
    their chores quickly enough. When the chores were still not
    completed after “multiple warnings,” Kilgore proceeded to
    spank both children with a belt. Kilgore’s daughter recalled
    that Kilgore spanked her “[t]hree or four” times with the belt,
    “but one lash went . . . right above” her backside and struck her
    lower back instead. That strike left a red “healing welt” on her
    lower back, and she stated that it began hurting the next day
    before she went to the school counselor. She described that the
    spot where she was hit on her back did not hurt “very bad, but
    it hurt.” The counselor called the Omaha Police Department.
    Officers spoke with Kilgore’s daughter and photographed the
    mark left on her lower back by the belt, and these photographs
    are included as an exhibit in the record. During her testimony,
    Kilgore’s daughter affirmed that the welt faded at some point
    after she reported to the school counselor.
    On September 30, 2019, the State filed a criminal complaint
    in the county court charging Kilgore with one count of care-
    taker neglect, in violation of Omaha Mun. Code, ch. 20, art.
    IV, § 20-97 (2004), and one count of disorderly conduct, in
    violation of Omaha Mun. Code, ch. 20, art. III, § 20-42 (1980),
    both alleged to have occurred on August 27. Following a bench
    trial held on January 28, 2020, the county court found Kilgore
    guilty on the charge of caretaker neglect and not guilty on the
    charge of disorderly conduct. At a sentencing hearing held on
    May 28, the court sentenced Kilgore to 21 days in jail.
    Kilgore appealed his conviction and sentence to the district
    court. A statement of errors was filed with the district court
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    STATE v. KILGORE
    Cite as 
    30 Neb. App. 273
    on June 26, 2020, alleging that (1) the evidence was insuf-
    ficient to sustain his conviction, (2) the county court erred
    in “admitting evidence of character . . . or habit [regarding
    Kilgore’s prior act of using a belt for disciplinary purposes]
    when the State failed to properly file a motion in limine seek-
    ing to introduce such evidence,” (3) the county court erred in
    “admitting [the same] evidence of habit under 
    Neb. Rev. Stat. § 27-406
     [(Reissue 2016)] in place of character evidence prof-
    fered by the State under 
    Neb. Rev. Stat. § 27-404
     [(Reissue
    2016)],” (4) the county court erred in “admitting [the same]
    evidence of character or habit because its probative value was
    substantially outweighed by the potential for unfair prejudice,”
    and (5) the county court erred in holding that “the only force
    that can be used by a parent for corporal punishment is spank-
    ing by hand and not by a physical instrument.”
    In the order entered on November 12, 2020, the district court
    found that the county court abused its discretion in admitting
    testimony by an Omaha police officer regarding Kilgore’s
    specific prior act of using a belt to discipline his children. The
    district court nonetheless affirmed Kilgore’s conviction and
    sentence, concluding that “there was sufficient independent
    evidence to support the [county court’s] finding of guilt, with-
    out including the evidence wrongfully admitted.”
    Kilgore appeals from the district court’s order.
    ASSIGNMENT OF ERROR
    Kilgore claims the district court erred in affirming the
    county court’s finding of guilt, because there was insufficient
    evidence to prove beyond a reasonable doubt that he was guilty
    of caretaker neglect.
    STANDARD OF REVIEW
    [1-4] In an appeal of a criminal case from the county court,
    the district court acts as an intermediate court of appeals, and
    its review is limited to an examination of the record for error
    or abuse of discretion. State v. Collins, 
    307 Neb. 581
    , 950
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    STATE v. KILGORE
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    30 Neb. App. 273
    N.W.2d 89 (2020). Both the district court and a higher appel-
    late court generally review appeals from the county court for
    error appearing on the record. 
    Id.
     When reviewing a judgment
    for errors appearing on the record, an appellate court’s inquiry
    is whether the decision conforms to the law, is supported by
    competent evidence, and is neither arbitrary, capricious, nor
    unreasonable. 
    Id.
     When deciding appeals from criminal convic-
    tions in county court, we apply the same standards of review
    that we apply to decide appeals from criminal convictions in
    district court. 
    Id.
    [5] Regardless of whether the evidence is direct, circumstan-
    tial, 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 stan-
    dard is the same: In reviewing a criminal conviction, an appel-
    late court does not resolve conflicts in the evidence, pass on
    the credibility of witnesses, or reweigh the evidence; such mat-
    ters 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 suf-
    ficient to support the conviction. State v. Price, 
    306 Neb. 38
    ,
    
    944 N.W.2d 279
     (2020).
    ANALYSIS
    Kilgore was convicted of caretaker neglect under § 20-97
    of the Omaha Municipal Code. A copy of this ordinance is
    included as part of the record before this court. As relevant
    to the facts of this appeal, this ordinance provides in part that
    “[a] person commits caretaker neglect if he or she negligently
    causes or permits [a] minor child to be placed in a situation
    that endangers his or her life or physical or mental health” or
    “to be cruelly confined or cruelly punished.”
    [6-8] Kilgore claims on appeal that his conduct could not
    satisfy the elements of caretaker neglect, and he further argues
    that his use of a belt to punish his children falls within the
    protection afforded to parents under 
    Neb. Rev. Stat. § 28-1413
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    STATE v. KILGORE
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    (Reissue 2016) to use force in disciplining their minor chil-
    dren. Section 28-1413(1) provides that the use of force upon or
    toward the person of another is justifiable if
    [T]he actor is the parent or guardian or other person simi-
    larly responsible for the general care and supervision of
    a minor or a person acting at the request of such parent,
    guardian, or other responsible person and:
    (a) Such force is used for the purpose of safeguarding
    or promoting the welfare of the minor, including the pre-
    vention or punishment of his or her misconduct; and
    (b) Such force is not designed to cause or known to
    create a substantial risk of causing death, serious bodily
    harm, disfigurement, extreme pain or mental distress, or
    gross degradation.
    Section 28-1413(1) codifies the common-law defense against
    criminal liability for a parent’s use of force in, among other
    circumstances, punishing his or her child’s misbehavior. See
    Maria A. on behalf of Leslie G. v. Oscar G., 
    301 Neb. 673
    , 
    919 N.W.2d 841
     (2018). At common law, a parent, or one stand-
    ing in the relation of parent, was not liable either civilly or
    criminally for moderately and reasonably correcting a child,
    but it was otherwise if the correction was immoderate and
    unreasonable. 
    Id.
     See, also, State v. Sinica, 
    220 Neb. 792
    , 
    372 N.W.2d 445
     (1985) (observing that cruel punishment, as con-
    templated by 
    Neb. Rev. Stat. § 27-707
    (1) (Cum. Supp. 1984),
    which codified elements of child abuse, is distinct from and
    does not include reasonable disciplinary measures). The ques-
    tion of whether such discipline was reasonable, and therefore
    protected under § 28-1413(1), presents a question of fact for
    the fact finder. See State v. Miner, 
    216 Neb. 309
    , 
    343 N.W.2d 899
     (1984).
    Kilgore claims that his conduct in disciplining his daughter
    with a belt “did not place her in danger of her life, physical
    health, or mental health,” because the extent of her injury did
    not rise to such a level of danger. Brief for appellant at 8. He
    further argues that his conduct was “readily distinguishable
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    STATE v. KILGORE
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    30 Neb. App. 273
    from cruel punishment,” given the disciplinary context of his
    actions, because his daughter’s “testimony demonstrates that
    she understood that she misbehaved and that her misbehavior
    [was] why she was punished.” Id. at 9. He also notes that the
    welt left on her lower back “later disappeared” and that her
    testimony further indicated that “it did not hurt much.” Id.
    [9] As we have set forth previously, this court, in reviewing
    the sufficiency of the evidence, 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. See State
    v. Price, 
    306 Neb. 38
    , 
    944 N.W.2d 279
     (2020). The relevant
    question for this 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. See State v. Figures, 
    308 Neb. 801
    ,
    
    957 N.W.2d 161
     (2021).
    The testimony of both children indicated that they were each
    struck multiple times by Kilgore with a belt. The daughter tes-
    tified that, of the “[t]hree or four” strikes, one lash hit her on
    the lower back and left a red mark that began to cause her pain
    the following day. She described this pain as “not very bad,
    but it hurt.” She also testified that before she or her brother
    would be spanked, there was generally a process of escalating
    punishments for misbehavior, stating that their parents would
    first “usually talk to [them]” and then “ground [them] from
    [privileges] like . . . the television or playing a video game”
    if they continued to misbehave. Kilgore’s son testified that the
    day he and his sister were spanked, Kilgore only gave them
    warnings to finish their chores before proceeding to spank
    them both with a belt. Both children testified that they were not
    afraid of Kilgore before or after this incident, and Kilgore’s son
    indicated that this was not the only time in 2019 that he or his
    sister was spanked with a belt.
    The specific facts of this case indicate that Kilgore’s daugh-
    ter was struck on her back with a belt, leaving a red welt
    and pain sufficient to cause her to report the incident to her
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    STATE v. KILGORE
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    30 Neb. App. 273
    school counselor the following day. Consequently, the evidence
    was sufficient for a rational trier of fact to find that Kilgore’s
    actions negligently placed his daughter in a situation that
    endangered her physical or mental health. While use of force
    as punishment for a child’s misconduct may be protected under
    § 28-1413(1) as Kilgore argues, a rational fact finder, based
    on the evidence of Kilgore’s daughter’s injury, could find that
    Kilgore’s use of a belt to discipline his daughter was not rea-
    sonable or moderate and carried with it a substantial risk of
    causing extreme pain or mental distress. A fact finder could
    thus conclude that the type of force used here did not qualify
    for protection under § 28-1413(1).
    When viewing this record in the light most favorable to the
    State, we find that a rational finder of fact could have found
    the essential elements of caretaker neglect under § 20-97 of the
    Omaha Municipal Code beyond a reasonable doubt. A rational
    finder of fact could have also found that Kilgore’s use of a belt
    multiple times to discipline his daughter to the point of leaving
    a red welt and causing pain sufficient to cause her to report the
    incident to the school counselor the following day was not pro-
    tected by § 28-1413(1). The evidence was therefore sufficient
    to sustain his conviction.
    CONCLUSION
    For the reasons set forth above, we affirm the district court’s
    order affirming Kilgore’s conviction and sentence.
    Affirmed.