State v. Wilson , 306 Neb. 875 ( 2020 )


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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. WILSON
    Cite as 
    306 Neb. 875
    State of Nebraska, appellee, v.
    Brady J. Wilson, appellant.
    ___ N.W.2d ___
    Filed August 21, 2020.   No. S-19-638.
    1. Statutes: Appeal and Error. Statutory interpretation presents a question
    of law, which an appellate court reviews independently.
    2. Convicted Sex Offender: Statutes: Legislature: Intent. Nebraska’s
    Sex Offender Registration Act is a civil regulatory scheme intended
    by the Legislature to protect the public from the danger posed by sex
    offenders.
    3. Statutes: Appeal and Error. Statutory language is to be given its plain
    and ordinary meaning, and an appellate court will not resort to inter-
    pretation to ascertain the meaning of statutory words which are plain,
    direct, and unambiguous.
    4. 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.
    5. Statutes: Legislature: Intent. A collection of statutes pertaining to a
    single subject matter are in pari materia and should be conjunctively
    considered and construed to determine the intent of the Legislature, so
    that different provisions are consistent, harmonious, and sensible.
    6. Statutes: Legislature: Presumptions: Judicial Construction. In deter-
    mining the meaning of a statute, the applicable rule is that when the
    Legislature enacts a law affecting an area which is already the subject
    of other statutes, it is presumed that it did so with full knowledge of the
    preexisting legislation and the decisions of the Nebraska Supreme Court
    construing and applying that legislation.
    7. Statutes: Legislature: Intent. The intent of the Legislature may be
    found through its omission of words from a statute as well as its inclu-
    sion of words in a statute.
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    STATE v. WILSON
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    306 Neb. 875
    Appeal from the District Court for Hamilton County:
    Rachel A. Daugherty, Judge. Affirmed.
    Mark Porto, of Porto Law Office, for appellant.
    Douglas J. Peterson, Attorney General, and Siobhan E.
    Duffy for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Papik, J.
    After accepting Brady J. Wilson’s no contest pleas to first
    degree sexual assault and another related charge, the dis-
    trict court sentenced him. As part of sentencing, it found
    that Wilson committed an aggravated offense under the Sex
    Offender Registration Act (SORA) and was thus subject to a
    lifetime registration requirement. Wilson appeals the district
    court’s finding that he committed an aggravated offense. We
    find that the district court did not err and affirm.
    BACKGROUND
    Charges and Convictions.
    In December 2018, the State charged Wilson by informa-
    tion with three counts of first degree sexual assault and one
    count of visual depiction of sexually explicit conduct involv-
    ing a child. Pursuant to a plea agreement, the State later filed
    an amended information charging Wilson with one count of
    first degree sexual assault and one count of attempting to pos-
    sess a visual depiction of sexually explicit conduct involving
    a child.
    Under the plea agreement, Wilson agreed to plead guilty
    or no contest to the charges in the amended information. The
    State also agreed to dismiss charges against Wilson in another
    case involving the same victim. At the plea hearing, Wilson
    stated that he wished to plead no contest to both charges in the
    amended information.
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    The State provided a factual basis for the charges at the
    plea hearing. With respect to the first degree sexual assault
    charge, the prosecutor stated that after initially communicating
    on a social media application, Wilson, who was then 21 years
    old, met the victim, a 15-year-old female, in September 2018.
    Wilson brought alcohol to the meeting, and both he and the
    victim consumed it, with the victim drinking to the point of
    intoxication. Wilson then drove to a rural area and attempted
    to have sexual intercourse with the victim. The victim said that
    she did not want to have sexual intercourse, but ultimately sex-
    ual intercourse occurred. Wilson later admitted to an investiga-
    tor that the victim said no when he attempted to have sexual
    intercourse with her.
    Wilson’s counsel subsequently confirmed that Wilson did
    not dispute the factual basis. The district court also confirmed
    with Wilson that he still wished to plead no contest. After
    doing so, the district court accepted the pleas and found Wilson
    guilty of both counts alleged in the amended information.
    Sentencing.
    A few months later, the district court held a sentencing
    hearing. The district court sentenced Wilson to 6 to 10 years’
    incar­ceration for first degree sexual assault and 1 to 3 years’
    incarceration for attempted possession of a visual depiction of
    sexually explicit conduct involving a minor.
    Of relevance to this appeal, the district court stated that
    because of the nature of his crimes, Wilson was subject to
    the requirements of SORA. The district court also stated that
    it had found that “the offense for which you have been con-
    victed is an aggravated offense as defined by [
    Neb. Rev. Stat. § 29-4001.01
     (Reissue 2016)], and you are therefore required
    to register for life.”
    On the same day as the sentencing hearing, the district court
    also entered a written judgment and sentencing order. In it, the
    district court again stated that it had found that Wilson had
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    committed an aggravated offense and was therefore required
    to register under SORA for life.
    Wilson timely appealed.
    ASSIGNMENT OF ERROR
    Wilson assigns a single error on appeal. He contends that the
    district court erred by determining that Wilson committed an
    aggravated offense and is therefore required to register under
    SORA for life.
    STANDARD OF REVIEW
    A trial court’s factual determination that a defendant’s crime
    was an aggravated offense under SORA is reviewed as a ques-
    tion of the sufficiency of the evidence. See, State v. Norman,
    
    285 Neb. 72
    , 
    824 N.W.2d 739
     (2013); State v. Hamilton, 
    277 Neb. 593
    , 
    763 N.W.2d 731
     (2009).
    [1] Statutory interpretation presents a question of law, which
    an appellate court reviews independently. State v. Clemens, 
    300 Neb. 601
    , 
    915 N.W.2d 550
     (2018).
    ANALYSIS
    Statutory Background.
    [2] There is no dispute in this case that as a result of his
    conviction of first degree sexual assault, Wilson is now sub-
    ject to SORA. SORA is a civil regulatory scheme intended
    by the Legislature to protect the public from the danger posed
    by sex offenders. Hamilton, supra. 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. See State
    v. Ratumaimuri, 
    299 Neb. 887
    , 
    911 N.W.2d 270
     (2018). SORA
    requirements may also apply to individuals that plead guilty to
    or are convicted of other offenses. Ratumaimuri, 
    supra.
     Wilson
    was convicted of first degree sexual assault under 
    Neb. Rev. Stat. § 28-319
     (Reissue 2016), a conviction that makes him
    automatically subject to SORA’s requirements. See 
    Neb. Rev. Stat. § 29-4003
    (1)(a)(i)(C) (Reissue 2016).
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    Those persons to whom SORA requirements apply gener-
    ally 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 incar-
    ceration, whichever date is most recent.” See 
    Neb. Rev. Stat. § 29-4005
    (1) (Reissue 2016). Section 29-4005(1) sets forth
    three different registration periods. The registration period
    is 15 years if the offender was convicted of a registrable
    offense not punishable by imprisonment for more than 1 year.
    § 29-4005(1)(b)(i). The registration period is 25 years if the
    offender was convicted of a registrable offense punishable
    by imprisonment for more than 1 year. § 29-4005(1)(b)(ii).
    Relevant to this appeal, the registration period is life if the
    offender was convicted of a registrable offense punishable
    by imprisonment for more than 1 year and was convicted of
    an aggravated offense. § 29-4005(1)(b)(iii). SORA defines
    “[a]ggravated offense” as
    any registrable offense under section 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.
    
    Neb. Rev. Stat. § 29-4001.01
     (Reissue 2016).
    Parties’ Positions on Appeal.
    Both Wilson and the State contend on appeal that the dis-
    trict court erred by finding that Wilson committed an aggra-
    vated offense and is therefore required to register for life, but
    for different reasons. The State asserts that after amendments
    to SORA in 2009, sentencing courts have no role to play in
    determining whether a defendant committed an aggravated
    offense and is thus obligated to register for life. According
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    to the State, the Nebraska State Patrol is now responsible for
    making that determination in all cases.
    Wilson, on the other hand, argues that sentencing courts
    must make the determination as to whether a defendant com-
    mitted an aggravated offense. He contends, however, that the
    district court erred by finding that he committed an aggra-
    vated offense.
    Ultimately, we disagree with both the State and Wilson. As
    we will explain, we disagree with the State that the district
    court committed reversible error by making a finding as to
    whether Wilson committed an aggravated offense and we dis-
    agree with Wilson that the district court committed reversible
    error by making the finding it did.
    State’s Argument.
    We begin with the State’s argument that we should vacate
    the portion of the sentence in which the district court found
    that Wilson committed an aggravated offense and is thus
    required to register for life. 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. Our
    opinion in State v. Hamilton, 
    277 Neb. 593
    , 
    763 N.W.2d 731
    (2009), discussed sentencing courts’ authority to find that an
    offense was aggravated. As we discussed in Hamilton, that
    authority was made clear by a provision within a prior version
    of SORA that directed sentencing courts to make the finding
    of an aggravated offense part of the sentencing order. See 
    Neb. Rev. Stat. § 29-4005
    (2) (Reissue 2008).
    As alluded to above, however, the State believes that sen-
    tencing courts no longer have the authority to find that an
    offense is aggravated. The State believes that amendments to
    SORA enacted in 2009 placed the sole authority to determine
    whether an offense is aggravated with the State Patrol.
    [3-5] The State’s argument requires us to interpret the cur-
    rent version of SORA. In doing so, we are guided by familiar
    principles. Statutory language is to be given its plain and
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    ordinary meaning, and an appellate court will not resort to
    interpretation to ascertain the meaning of statutory words
    which are plain, direct, and unambiguous. State v. Dean, 
    288 Neb. 530
    , 
    849 N.W.2d 138
     (2014). 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. 
    Id.
     A collection of statutes pertaining to a
    single subject matter are in pari materia and should be con-
    junctively considered and construed to determine the intent
    of the Legislature, so that different provisions are consistent,
    harmonious, and sensible. State v. Montoya, 
    305 Neb. 581
    , 
    941 N.W.2d 474
     (2020).
    The principal statute upon which the State relies for its
    argument is 
    Neb. Rev. Stat. § 29-4013
    (5) (Reissue 2016),
    which provides that certain officials within the State Patrol
    “shall have access to all documents that are generated by any
    governmental agency that may have bearing on sex offender
    registration and community notification.” Section 29-4013(5)
    goes on to state that “[a]ccess to such documents will ensure
    that a fair determination of what is an appropriate registra-
    tion period is completed using the totality of all information
    available.” This language, the State suggests, places the sole
    authority to determine whether an offense was aggravated with
    the State Patrol.
    We observe initially that it is not obvious to us that this
    language confers as much authority on the State Patrol as the
    State contends. It would seem there would be a clearer and
    more direct way to confer such authority on the State Patrol.
    Moreover, the State has a difficult task before it to reconcile
    its position with another provision of SORA: 
    Neb. Rev. Stat. § 29-4007
    (1)(a)(i) (Cum. Supp. 2018). That statute provides
    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 writ-
    ten notification shall, among other things, inform the defend­
    ant of “the duration of time he or she will be subject to the
    act.” § 29-4007(1)(a)(i). This language replaced the former
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    language requiring sentencing courts to make a finding that
    the defend­ant committed an aggravated offense part of the
    sentencing order.
    The obvious question for the State raised by this language
    is: How is the court to inform the defendant of the duration
    of time he or she will be subject to SORA at sentencing if
    that determination is made later by the State Patrol? On this
    question, the State takes the position that the language of
    § 29-4007(1)(a)(i) obligates the sentencing court to provide the
    defendant with only a list of possible registration periods, i.e.,
    that the registration period might be for 15 years, it might be
    for 25 years, and it might be for life.
    We need not decide today whether the sentencing court
    meets its obligation under § 29-4007(1)(a)(i) by providing
    the defendant with only a range of possible registration peri-
    ods. But given the direction to sentencing courts to notify the
    defendant of “the duration of time he or she will be subject to
    the act,” § 29-4007(1)(a)(i) (emphasis supplied), we cannot say
    that sentencing courts lack authority to find that the offender
    committed an aggravated offense and to inform the defendant
    that he or she is thus required to register for life. Moreover, we
    see nothing in SORA that indicates that when the sentencing
    court concludes that the defendant committed an aggravated
    offense and advises the defendant of a lifetime registration
    obligation, the State Patrol has authority to make a contrary
    determination. In making this statement, we are aware of 
    Neb. Rev. Stat. § 29-4006
    (7) (Reissue 2016), which obligates the
    State Patrol to notify a person subject to SORA of his or her
    registration duration. We see no indication that in carrying out
    this notification obligation, the State Patrol can contradict a
    sentencing court’s finding that the defendant committed an
    aggravated offense.
    Our conclusion that the State Patrol cannot make a differ-
    ent determination regarding an offender’s registration duration
    after the sentencing court finds an aggravated offense should
    not be understood to foreclose the State Patrol from playing
    any role in determining the registration duration for offenders
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    subject to SORA. Section 29-4013(5) gives it authority to
    determine the “appropriate registration period” and, if pos-
    sible, that language must be given some effect. See State
    v. Dean, 
    288 Neb. 530
    , 
    849 N.W.2d 138
     (2014). But under
    § 29-4005(2) (Reissue 2016), the State Patrol is clearly given
    authority to reduce the registration period for some offend-
    ers from 15 years to 10 years under certain circumstances. In
    addition, Wilson suggests the language of § 29-4013(5) gives
    the State Patrol the authority to determine the registration
    duration for those offenders subject to SORA as a result of
    out-of-state convictions where the sentencing court would not
    make a finding that the offense was an aggravated one under
    SORA. But again, it is not necessary to decide the full scope
    of the State Patrol’s authority in this case. It is sufficient today
    to hold that the sentencing court has the authority to find that
    the defendant committed an aggravated offense and that the
    State Patrol lacks the authority to subsequently make a differ-
    ent determination.
    Finally, we are not persuaded by the State’s suggestion that
    the district court committed reversible error because it included
    its finding that Wilson committed an aggravated offense and
    is thus required to register for life in both its oral pronounce-
    ment of his sentences and the written sentencing order. On
    this point, the State relies on State v. Nelson, 
    27 Neb. App. 748
    , 
    936 N.W.2d 32
     (2019), a recent opinion of the Nebraska
    Court of Appeals. In Nelson, the Court of Appeals concluded
    that the district court erred by including a finding in the oral
    pronouncement of a sentence that the defendant committed
    an aggravated offense and was thus required to register for
    life. The court reasoned that this was error, because after the
    2009 amendments to SORA, sentencing courts are to inform
    the defendant of his registration duration through a writ-
    ten notification.
    The State appears to understand the 2009 amendments to
    SORA to require the district court to inform the defendant
    of the duration of his registration obligation under SORA in
    a written notification separate from the sentence. That may
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    well be the case, but we do not believe it follows that the
    district court commits reversible error if its sentencing order
    provides that it has found that the defendant committed an
    aggravated offense and has a resulting lifetime registration
    obligation. To the extent Nelson suggests otherwise, it is disap-
    proved. Wilson makes no argument on appeal that the district
    court failed to provide notice of the duration of his registration
    obligation under SORA in some format other than in the sen-
    tencing order, and we thus do not consider that issue.
    Wilson’s Argument.
    Having concluded that the district court had the authority
    to make a determination regarding whether Wilson commit-
    ted an aggravated offense, we turn to Wilson’s argument that
    it erred by concluding he did. Wilson’s argument, much like
    the State’s, relies heavily on amendments to SORA enacted
    in 2009. He claims that as a result of those amendments, the
    district court must make its determination about whether the
    offense was aggravated solely by considering the elements of
    the offense of conviction. The court cannot, Wilson asserts,
    consider the facts underlying the conviction.
    In yet another similarity to the argument advanced by the
    State, Wilson’s argument would clearly lack merit if made prior
    to the 2009 amendments to SORA. As noted above, this court
    addressed this very issue in State v. Hamilton, 
    277 Neb. 593
    ,
    
    763 N.W.2d 731
     (2009). In Hamilton, we laid out a number of
    reasons why we interpreted SORA to authorize a sentencing
    court, in determining whether an offense was aggravated, to
    consider any information in the record, including the factual
    basis for a plea-based conviction and information contained in
    the presentence report. Those reasons included our assessment
    that if the Legislature intended to require that the presence of
    aggravation be derived solely from the elements of the offense,
    it could have used specific language to that effect as it has in
    other statutes. Hamilton, supra.
    In concluding in Hamilton that the pre-2009 amendment
    version of SORA allowed sentencing courts to consider any
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    information in the record, we also relied on the purposes of
    SORA. We noted that in enacting SORA, the Legislature made
    findings that sex offenders present a high risk to reoffend
    and that efforts to protect communities from sex offenders
    are impaired by a lack of information about where previous
    offenders live, work, and attend school. We also observed
    that by requiring shorter registration requirements for some
    offenders but lifetime registration requirements for those that
    commit aggravated offenses, the Legislature demonstrated an
    intent to provide enhanced assistance to law enforcement and
    protection to the public regarding those that commit aggra-
    vated offenses. We concluded that this purpose would be
    frustrated if a person who had in fact committed an act that
    would meet the definition of an aggravated offense “would be
    exempted from the lifetime registration requirement simply by
    pleading to a lesser offense.” Hamilton, 
    277 Neb. at 601
    , 
    763 N.W.2d at 737
    .
    Wilson contends that the 2009 amendments to SORA
    changed what the district court may consider in determin-
    ing whether the defendant committed an aggravated offense.
    In support of this argument, he relies heavily on dicta in
    State v. Nelson, 
    27 Neb. App. 748
    , 
    936 N.W.2d 32
     (2019). In
    Nelson, prior to finding that the district court erred by includ-
    ing a finding of aggravation in the pronouncement of the
    sentence, the Court of Appeals stated that in the amendments
    to SORA, the Legislature “clearly eliminated the court’s role
    in separately determining the fact of whether an aggravated
    offense occurred by reviewing the record.” 27 Neb. App. at
    760, 936 N.W.2d at 40. The Court of Appeals understood
    the 2009 amendments to limit the sentencing court’s inquiry
    “to whether the defendant has been convicted of an aggra-
    vated offense.” Id. The Court of Appeals found that the
    Legislature had made this change by removing the language
    in § 29-4005(2) (Reissue 2008) formerly requiring that, with
    respect to a finding of an aggravated offense, “‘[a] sentencing
    court shall make that fact part of the sentencing order’” and
    replacing it with language in § 29-4005(1)(b)(iii) (Reissue
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    2016) stating that the defendant had a lifetime registration
    requirement if convicted of a registrable offense punishable
    by imprisonment for more than 1 year “‘and was convicted
    of an aggravated offense.’” Hamilton, 
    277 Neb. at 760
    , 936
    N.W.2d at 40, 41.
    [6,7] We disagree with the Court of Appeals that the 2009
    amendments to SORA changed what a sentencing court may
    consider in determining whether the defendant committed an
    aggravated offense. Two principles of statutory interpreta-
    tion factor heavily in our reasoning. First, in determining
    the meaning of a statute, the applicable rule is that when the
    Legislature enacts a law affecting an area which is already
    the subject of other statutes, it is presumed that it did so with
    full knowledge of the preexisting legislation and the deci-
    sions of the Nebraska Supreme Court construing and apply-
    ing that legislation. McEwen v. Nebraska State College Sys.,
    
    303 Neb. 552
    , 
    931 N.W.2d 120
     (2019). Second, the intent of
    the Legislature may be found through its omission of words
    from a statute as well as its inclusion of words in a statute.
    Stewart v. Nebraska Dept. of Rev., 
    294 Neb. 1010
    , 
    885 N.W.2d 723
     (2016).
    Under the first principle of statutory interpretation, the
    Legislature is presumed to have knowledge of our decision
    in Hamilton interpreting the prior version of SORA to allow
    sentencing courts to consider all information in the record to
    determine whether an aggravated offense had been commit-
    ted. Given this presumed knowledge, one would expect the
    Legislature to have clearly expressed any change to our inter-
    pretation of SORA in Hamilton. We see no such expression,
    and thus the canon of interpretation regarding legislative omis-
    sion comes into play.
    Further, the two reasons for our interpretation in Hamilton
    that we summarized above remain just as applicable after
    the 2009 amendments as before. There is still no language
    in SORA expressly providing that whether an offense is
    aggravated is to be determined solely with reference to the
    elements of the convicted offense. And we do not understand
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    the 2009 amendments to SORA to have fundamentally
    changed its general purpose or its means of achieving that
    purpose by requiring certain offenders to register for life.
    SORA’s purpose would be frustrated just as much after the
    2009 amendments as before if defendants who actually com-
    mitted aggravated offenses could avoid lifetime registration
    requirements by pleading to an offense with elements that did
    not necessarily constitute an aggravated offense.
    Neither are we persuaded by Wilson’s invocation of legisla-
    tive history. Wilson claims that two items within the legislative
    history of the 2009 SORA amendments support his interpre-
    tation. He points to language in which the introducer stated
    that under the bill, “[l]ength of registration is based solely
    on the convicted offense(s).” See Introducer’s Statement of
    Intent, L.B. 285, Judiciary Committee, 101st Leg., 1st Sess.
    (Mar. 18, 2009). He also directs us to testimony of the bill’s
    sponsor in committee in which the sponsor indicated that
    the bill would move the focus from subjectively determin-
    ing whether an offender is likely to reoffend to whether the
    offender had objectively been convicted of a particular crime.
    This legislative history, Wilson asserts, shows the Legislature
    intended to have courts no longer determine whether the con-
    duct was aggravated with reference to all available information
    in the record.
    We do not understand the legislative history Wilson relies
    on to be relevant to the question of whether the sentencing
    court can consider all information in the record in determin-
    ing whether an offense is aggravated. One of the effects of the
    2009 amendments to SORA was to remove sentencing courts’
    authority to find that a defendant was a sexually violent preda-
    tor. Under the prior version of the statute, a finding that the
    defendant was a sexually violent predator would subject the
    defendant to a lifetime registration requirement. § 29-4005(3)
    (Reissue 2008). A “[s]exually violent predator” was defined
    to be a person convicted of one or more registrable offenses
    and “who suffers from a mental abnormality or personality
    disorder that makes the person likely to engage in sexually
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    violent offenses.” § 29-4005(4)(c) (Reissue 2008). The prior
    version of SORA thus made the registration period for offend-
    ers depend upon whether the sentencing court found they were
    likely to reoffend. We understand the legislative history Wilson
    relies on to refer to the elimination of that authority in the
    2009 amendments.
    Now that we have determined that the district court could
    consider any information in the record, including the factual
    basis for Wilson’s plea and information contained in the pre-
    sentence report, we turn to the question of whether the district
    court erred in determining that Wilson committed an aggra-
    vated offense. We have previously held that a finding necessary
    to make a defendant subject to SORA if convicted of a crime
    that is not inherently sexual in nature must be established by
    clear and convincing evidence. See State v. Norman, 
    282 Neb. 990
    , 
    808 N.W.2d 48
     (2012). We believe the same burden of
    proof would apply here. We are thus required to affirm if,
    viewing the evidence in the light most favorable to the State,
    any rational trier of fact could have found with a firm convic-
    tion that Wilson committed an aggravated offense. See State v.
    Norman, 
    285 Neb. 72
    , 
    824 N.W.2d 739
     (2013).
    Wilson acknowledges that because of the victim’s age in
    this case, she could not legally consent to sexual activity with
    him. He claims, however, that the aggravated offense defini-
    tion in SORA is framed in terms of actual consent, rather than
    legal consent. And he argues that there is insufficient evidence
    to show that the victim did not actually consent to the sexual
    intercourse at issue.
    We find it unnecessary to determine whether Wilson’s inter-
    pretation of consent in § 29-4001.01(1) is correct. Even assum-
    ing the aggravated offense definition is framed in terms of
    actual consent, we find that the district court could have
    reasonably found with a firm conviction that the offense was
    aggravated.
    As we described above, in the factual basis provided by
    the State and to which Wilson did not object, it was stated
    that Wilson supplied the victim with alcohol, that she drank
    - 889 -
    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    STATE v. WILSON
    Cite as 
    306 Neb. 875
    to the point of intoxication, and that despite her communicat-
    ing that she did not want to have sexual intercourse, sexual
    intercourse occurred. In addition, there is information in the
    presentence report that the victim reported that she had no
    memory of the encounter with Wilson, that she did not con-
    sent, and that she did not even know what happened until
    Wilson contacted her the next day and said he hoped she was
    not angry that they had sex.
    Based on this information, the district court could have rea-
    sonably found with a firm conviction that, even setting aside
    the victim’s inability to legally consent, she did not actually
    consent to sexual intercourse with Wilson and thus the offense
    was aggravated under § 29-4001.01(1)(a). Based on this same
    information, the district court could also have reasonably found
    with a firm conviction that Wilson knew or should have
    known that the victim was physically incapable of resisting
    or appraising the nature of her conduct and thus the offense
    was aggravated under § 29-4001.01(1)(c). See In re Interest
    of K.M., 
    299 Neb. 636
    , 644, 
    910 N.W.2d 82
    , 88 (2018) (“law
    of sexual assault has traditionally recognized certain circum-
    stances under which an individual lacks the capacity to consent
    to sexual conduct and where sexual contact with that person
    thus constitutes sexual assault: where the victim is severely
    intoxicated”). We thus reject Wilson’s argument that the district
    court erred by finding that he committed an aggravated offense
    under SORA.
    CONCLUSION
    Because the district court did not err in determining that
    Wilson committed an aggravated offense and was thus subject
    to a lifetime registration obligation under SORA, we affirm.
    Affirmed.