State v. Osborne , 286 Neb. 154 ( 2013 )

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154 286 NEBRASKA REPORTS
We reverse, and remand with directions to the district court
to order the county court to file a complete bill of exceptions
with the district court or, in the alternative, to hold a new trial.
As such, we need not address the Whelans’ second assignment
of error.
CONCLUSION
The order of the district court affirming the judgment of
the county court is reversed, and the cause is remanded with
directions.
R eversed and remanded with directions.
Miller-Lerman, J., participating on briefs.
State of Nebraska, appellee, v.
Dean L. Osborne, appellant.
___ N.W.2d ___
Filed June 28, 2013. No. S-12-112.
1. 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.
2. Convictions: Appeal and Error. 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.
3. Trial: Effectiveness of Counsel: Evidence: Appeal and Error. An ineffective
assistance of counsel claim will not be addressed on direct appeal if it requires an
evidentiary hearing.
Petition for further review from the Court of Appeals,
Irwin, Pirtle, and Riedmann, Judges, on appeal thereto from
the District Court for Saunders County, Mary C. Gilbride,
Judge, on appeal thereto from the County Court for Saunders
County, Marvin V. Miller, Judge. Judgment of Court of
Appeals affirmed.
Cynthia R. Lamm, of Law Office of Cynthia R. Lamm,
for appellant.
Nebraska Advance Sheets
STATE v. OSBORNE 155
Cite as 286 Neb. 154Jon Bruning, Attorney General, and Kimberly A. Klein
for appellee.
Heavican, C.J., Wright, Stephan, and Miller-Lerman, JJ.
P er Curiam.
NATURE OF CASE
This case is before us on further review of the decision of
the Nebraska Court of Appeals. See State v. Osborne, 20 Neb.
App. 553, 826 N.W.2d 892 (2013). Dean L. Osborne was con-
victed in the county court for Saunders County of third degree
sexual assault and admitting a minor to an obscene motion
picture, show, or presentation. The district court affirmed. The
Court of Appeals affirmed the third degree sexual assault con-
viction, but reversed the obscenity-related count. We granted
Osborne’s petition for further review; neither party challenges
the reversal of the obscenity-related conviction on further
review. Osborne claims that the Court of Appeals erred when it
failed to find that (1) there was not sufficient evidence to sup-
port his conviction for third degree sexual assault and (2) he
received ineffective assistance of trial counsel. We affirm the
decision of the Court of Appeals.
STATEMENT OF FACTS
The underlying facts of this case are set forth in greater detail
in the Court of Appeals’ opinion. See id. Generally, Osborne
was convicted in the county court for Saunders County of third
degree sexual assault, Neb. Rev. Stat. § 28-320(1) (Reissue
2008), and admitting a minor to an obscene motion picture,
show, or presentation, Neb. Rev. Stat. § 28-809 (Reissue 2008).
The charges against Osborne arose from events involving the
alleged victim, A.H., which occurred during the second half of
2009. The district court affirmed his convictions.
On appeal to the Court of Appeals, Osborne claimed that the
district court erred in various respects, including when it found
that there was sufficient evidence to support his convictions and
when it determined that the record was insufficient to review
his claims of ineffective assistance of trial counsel. The Court
of Appeals concluded that there was not sufficient evidence
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156 286 NEBRASKA REPORTS
to support Osborne’s conviction for admitting a minor to an
obscene motion picture, show, or presentation. The Court of
Appeals reversed this conviction and remanded the cause with
directions to dismiss the charge. The Court of Appeals, how-
ever, concluded that there was sufficient evidence to support
the conviction for third degree sexual assault and affirmed that
conviction. The Court of Appeals did not address Osborne’s
other claims, including the claim related to ineffective assist­
ance of trial counsel. One member of the three-judge panel
dissented from that portion of the opinion which affirmed the
third degree sexual assault conviction. The dissenting opinion
generally asserts that the record does not support a finding that
Osborne’s acts in touching the victim were for sexual arousal
or gratification as required by Neb. Rev. Stat. § 28-318(5)
(Reissue 2008).
We granted Osborne’s petition for further review.
ASSIGNMENTS OF ERROR
Osborne claims that the Court of Appeals erred when it (1)
concluded that there was sufficient evidence to support his con-
viction for third degree sexual assault and (2) failed to address
his claims of ineffective assistance of trial counsel.
STANDARDS OF REVIEW
[1,2] When reviewing a criminal conviction for sufficiency
of the evidence to sustain the conviction, the relevant ques-
tion 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. State v. Watt, 285
Neb. 647, ___ N.W.2d ___ (2013). 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. Id.ANALYSIS
With regard to the sufficiency of the evidence to support
Osborne’s conviction for third degree assault, having reviewed
the briefs and record and having heard oral arguments, and
considering the relevant standard of appellate review, we
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STATE v. DIXON 157
Cite as 286 Neb. 157conclude on further review that the decision of the Court of
Appeals in State v. Osborne, 20 Neb. App. 553, 826 N.W.2d
892 (2013), is not erroneous. Accordingly, we affirm the deci-
sion of the Court of Appeals which affirmed the portion of the
district court’s order in which it affirmed Osborne’s conviction
for third degree sexual assault.
With regard to Osborne’s claims related to the alleged inef-
fectiveness of trial counsel, we note that the Court of Appeals
did not discuss this claim. In contrast, the district court sitting
as an appellate court did consider effectiveness of trial counsel
and stated that it would not “address the ineffective counsel
issues on this direct appeal as an evidentiary hearing would be
required for such a review.”
[3] We have often stated that an ineffective assistance of
counsel claim will not be addressed on direct appeal if it
requires an evidentiary hearing. State v. Watt, supra. The dis-
trict court determined that an evidentiary hearing would be
required, and we agree with the district court’s assessment of
the record. We treat the Court of Appeals’ silence on the issue
as its indication that the ineffective assistance of trial counsel
issue could not be reached on direct appeal on the existing
record, and so construed, we agree.
CONCLUSION
On further review, we affirm the decision of the Court
of Appeals.
Affirmed.
Connolly and McCormack, JJ., participating on briefs.
Cassel, J., not participating.
State of Nebraska, appellee, v.
Michale M. Dixon, appellant.
___ N.W.2d ___
Filed June 28, 2013. No. S-12-791.
1. Constitutional Law: Criminal Law: Right to Counsel. The Sixth Amendment
to the U.S. Constitution provides that in all criminal prosecutions, the accused
shall have the assistance of counsel for his or her defense.