State of Nebraska v. Cody Olbricht, also known as Cody Olbrich

On September 28, 2014, 3-year-old A.M. was admitted to an emergency room in Scottsbluff, Nebraska, with bruising

on her face, torso, arms, and legs. A.M. was not interactive, appeared sleepy, and had bleeding in the white part of her left eye. Due to A.M.’s symptoms, doctors suspected she was suffering from a subdural hemorrhage (brain bleed). A CAT scan revealed a brain bleed and infarct in A.M.’s brain. Further examination revealed A.M. had a laceration on the left lobe of her liver. She was transferred by helicopter to a hospital in Denver, Colorado, for further treatment.

The emergency room doctor in Scottsbluff suspected A.M. had been abused and notified the authorities. Olbricht, the

live-in boyfriend of A.M.’s mother, was subsequently charged with knowing and intentional child abuse resulting in serious bodily injury.2 The operative information alleged the crime occurred “[o]n or about March, 2014 through September, 2014.” Olbricht waived a jury trial, and the matter was tried to the court.



Evidenc e at Trial

Cassandra Miller, A.M.’s mother, testified for the State. In

addition to testifying about the events leading up to A.M.’s

hospitalization, Miller testified about prior injuries A.M. had

received while in Olbricht’s care. According to Miller, in

March 2014, A.M. sustained a cut to her bottom lip while in

Olbricht’s care. And in separate instances in September, A.M.

incurred burns to her lips and face, various bruises on her

cheek and hips, and retinal bleeding while in Olbricht’s care.

There were no rule 4043 objections to this testimony.

On the evening of September 27, 2014, the day before A.M.

was admitted to the hospital, Miller and Olbricht took A.M. to

a fast-food restaurant and then to a babysitter. A.M. vomited

after leaving the restaurant. Miller changed A.M.’s clothes,

and then she and Olbricht left A.M. with the babysitter for

the night.

The babysitter noticed A.M. had bruises on her face, neck,

and back. According to the babysitter, A.M. was lethargic and

2 Neb. Rev. Stat. § 28-707(1) and (7) (Cum. Supp. 2014).

3 Neb. Evid. R. 404, Neb. Rev. Stat. § 27-404 (Cum. Supp. 2014).

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vomited several more times that night. The babysitter took

a photograph of A.M.’s bruises and sent it to A.M.’s grandmother,

Lynelle Pahl. Pahl was at work when she received the

photograph via text message and said she would take A.M. to

the hospital first thing in the morning if A.M. was not better.

The babysitter also testified, over objection, that when she

informed A.M. that her grandmother was going to pick her up,

A.M. became very upset and seemed scared to go home:

She seemed terrified and she didn’t want to go home. She

kept expressing to me she didn’t want to go home.

. . . .

. . . And then when I asked her if somebody was hurting

her at home and she explained to me that, yes, and I

said who and she said, “daddy.” And I said, “where does

daddy hurt you?” She pointed to her shin and she pointed

to her foot. And I had rubbed her head and I felt lumps

all along her head and I said, “did he hit your head, too,”

and she said yes.

The evidence showed A.M. referred to Olbricht as “daddy.”

A.M.’s regular daycare provider testified that between

March and September 2014, A.M. regularly came to daycare

with bruises on her face, arms, back, and legs. When Olbricht

came to pick up A.M. from daycare, A.M. would become

upset and cry, because she did not want to go home with

him. In April, after noticing A.M.’s face was “really swollen,”

seeing bruises down her back, and seeing a distinctive

mark across her left buttocks, A.M.’s daycare provider called

the Department of Health and Human Services to report her

concerns. The provider testified that after A.M. was released

from the hospital into Pahl’s care, she has had no injuries

or bruises.

Two doctors testified for the State. Dr. Jeffrey Salisbury,

A.M.’s emergency room doctor, testified that the subdural

hemorrhage and infarct in A.M.’s brain and the laceration to

A.M.’s liver were injuries that presented a substantial risk of

death. According to Dr. Salisbury, there was no way to tell

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exactly how old A.M.’s brain injury was, but it was his opinion

that the brain injury was “acute,” meaning it could have been

anywhere from 5 minutes to 2 weeks old.

Dr. Andrew Sirotnak, a forensic pediatrician and a member

of the medical team that treated A.M. at the hospital

in Denver, testified that in his opinion, A.M.’s brain injury

occurred “a day or two” or a “few days” prior to her hospitalization.

Dr. Sirotnak testified that A.M.’s brain injury was

“clearly something that was inflicted” and that the injury was

likely the result of being “thrown from something or thrown

by something.” Dr. Sirotnak could not tell when the liver

injury occurred. Dr. Sirotnak diagnosed A.M. as a “battered

child,” meaning “a child that’s been injured in a multi system

manner over time.” According to Dr. Sirotnak, A.M.’s injuries

were likely nonaccidental because some occurred over soft tissue

and others displayed a bruising pattern that indicated they

were inflicted with an object. It was Dr. Sirotnak’s opinion

that A.M. had been hit with a wire hanger because the bruises

on her legs and hip were triangular in shape. With respect to

what caused the liver laceration, Dr. Sirotnak testified it was

likely caused by blunt trauma akin to the amount of force seen

in a car accident. Dr. Sirotnak opined that based on A.M.’s

medical history, there was no accidental explanation for her

liver injury.

At the close of the State’s case, Olbricht moved for a

directed verdict. The court overruled the motion, and Olbricht

proceeded to call numerous family members and acquaintances

who testified that A.M. was always healthy, happy, and clean

and that Olbricht had never abused her. Olbricht also called

Miller to testify for the defense. Miller testified that, in addition

to the times A.M. was injured while in Olbricht’s care,

A.M. also had been injured while in Miller’s care. Miller testified

that in August or September 2014, she and Olbricht were

home when A.M. fell down the stairs. Miller also testified that

on September 16, she was with A.M. at the park when A.M.

was hit in the head by a swing.

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Olbricht testified in his own defense. He did not dispute

that A.M. had a history of prior injuries while in his care as

described by other witnesses. Instead, Olbricht denied that he

caused A.M.’s injuries and offered a variety of explanations

for how the injuries occurred, all of which either suggested

A.M. was responsible for her own injuries or another child had

inflicted the injuries.

The district court found the brain bleed and the liver laceration

created a substantial risk of death and were serious bodily

injuries. The court recounted the evidence and concluded that

the injuries were nonaccidental and that “[t]he majority, if not

all, of [A.M.’s] documented injuries occurred when she was in

the sole physical care of . . . Olbricht.” Based on this evidence,

the court found Olbricht guilty of knowing and intentional

child abuse resulting in serious bodily injury.

After the court imposed sentence, Olbricht timely appealed,

assigning that the trial court erred in (1) finding him guilty,

(2) denying his motion for directed verdict, (3) overruling his

evidentiary objections, (4) overruling his motion for new trial,

and (5) imposing an excessive sentence.

Court of Appeals

The Court of Appeals held the evidence was insufficient to

support Olbricht’s conviction, “because the evidence presented

never showed, directly or circumstantially, that A.M.’s serious

bodily injuries occurred during a discrete timeframe when

Olbricht was the only adult in her presence.”4 That court laid

out its reasoning as follows:

According to the evidence at trial, the timeframe in

which A.M.’s serious bodily injuries were inflicted was

broad. Specifically, Dr. Salisbury testified that A.M.’s

brain injury was “acute,” meaning it could have occurred

anywhere from 5 minutes to 2 weeks before she came to

the emergency room. Dr. Sirotnak testified that A.M.’s

4 State v. Olbricht, supra note 1, 23 Neb. App. at 615, 875 N.W.2d at 874.

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brain injury occurred within “a day or two” of her hospitalization.

Neither doctor provided a specific timeframe

in which the liver injury occurred.

A.M. was not in Olbricht’s sole care for the week

or the “day or two” before she was hospitalized. For

example, Miller was with both Olbricht and A.M. during

the afternoon and evening of September 27, 2014,

the day before A.M. was hospitalized. Additionally, A.M.

was alone with Pahl for approximately an hour 6 days

before her hospitalization. Furthermore, the night before

her hospitalization, A.M. was in the care of the babysitter

and neither Olbricht nor Miller was present. Therefore,

pursuant to Dr. Sirotnak’s opinion that the injury occurred

within “a day or two” of A.M.’s hospitalization, Olbricht,

Miller, and the babysitter cared for A.M. during the relevant

timeframe. Pursuant to Dr. Salisbury’s opinion that

A.M.’s brain injury was between 5 minutes and 2 weeks

old, Olbricht, Miller, the babysitter, and Pahl all cared

for A.M. during the relevant timeframe. With respect to

A.M.’s liver injury, neither doctor provided a timeframe

during which the injury was inflicted, thereby making

it impossible to establish that Olbricht was A.M.’s sole

caregiver when the liver laceration occurred. . . . Here,

the lack of evidence that Olbricht had exclusive custody

of A.M. during the time when her substantial injuries

were inflicted prevents the conclusion that Olbricht committed

child abuse.5

The Court of Appeals acknowledged there was circumstantial

evidence that Olbricht had caused A.M.’s injuries,

but found that this evidence was insufficient to support the

conviction:

It is true that Olbricht and Miller testified about a number

of injuries that occurred while Olbricht was supervising

A.M. However, the record does not support a finding

5 Id. at 618-19, 875 N.W.2d at 875-76.

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that Olbricht caused either of the two injuries that could

have supported his conviction: A.M.’s brain bleed and

lacerated liver. Specifically, the State failed to adduce

evidence that A.M. was in Olbricht’s sole care at the time

she received the injuries that led to the brain bleed or

lacerated liver.

We note that there was some circumstantial evidence

that A.M. was afraid of Olbricht, that she said Olbricht

hurt her, and that she had previously suffered injuries

while in Olbricht’s care. However, this evidence is insufficient

to overcome the fact that at least two other individuals

could not be excluded as having caused the

brain bleed and lacerated liver that are of significance in

this case.6

Because the Court of Appeals concluded the evidence at

trial was legally insufficient, it held the Double Jeopardy

Clause barred retrial. And because it reversed Olbricht’s conviction

and vacated the sentence, it did not address his other

assignments of error.

We granted the State’s timely petition for further review.

ASSIGNMENT OF ERROR

The State assigns that the Court of Appeals erred in concluding

the evidence was insufficient to support the conviction.

STANDARD OF REVIEW

[1] 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.7

6 Id. at 619, 875 N.W.2d at 876.

7 State v. Juranek, 287 Neb. 846, 844 N.W.2d 791 (2014); State v. McGuire,

286 Neb. 494, 837 N.W.2d 767 (2013).

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ANALYSIS

Sufficienc y of Evidenc e

The State charged Olbricht with knowing and intentional

child abuse resulting in serious bodily injury under § 28-707.

That statute provides in relevant part:

(1) A person commits child abuse if he or she knowingly,

intentionally, or negligently causes or permits a

minor child to be:

. . . .

(b) Cruelly confined or cruelly punished;

. . . .

(7) Child abuse is a Class II felony if the offense is

committed knowingly and intentionally and results in

serious bodily injury as defined in . . . section [28-109].

Under Neb. Rev. Stat. § 28-109(20) (Reissue 2008), “[s]erious

bodily injury” is defined as “bodily injury which involves

a substantial risk of death, or which involves substantial risk of

serious permanent disfigurement, or protracted loss or impairment

of the function of any part or organ of the body.”

As such, because Olbricht was charged with intentional

child abuse resulting in serious bodily injury, the State was

required to prove beyond a reasonable doubt that (1) Olbricht

caused or permitted A.M. to be cruelly confined or cruelly

punished; (2) he did so knowingly and intentionally; (3) he did

so on, about, or between March and September 2014, in Scotts

Bluff County, Nebraska; (4) at the time Olbricht did so, A.M.

was a minor child; and (5) as a result, A.M. sustained a serious

bodily injury.

Olbricht’s appellate brief does not point to any material element

of the crime which lacked evidentiary support, but instead

argues generally that the circumstantial evidence adduced at

trial lacked probative value. Through a variety of arguments,

Olbricht emphasizes that he was not the only person to have

access to A.M. during the timeframe when her injuries likely

occurred, and he suggests the testimony of Miller and Pahl was

not credible.

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[2] As is often the case in child abuse prosecutions, the

evidence at trial was largely circumstantial. But whether the

evidence is direct, circumstantial, or a combination thereof,

our standard of review is the same: An appellate court does

not resolve conflicts in the evidence, pass on credibility of

witnesses, or reweigh the evidence; such matters are for the

finder of fact.8 The relevant question 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.9

In analyzing the sufficiency of the evidence in the present

case, the Court of Appeals reasoned that “the lack of evidence

that Olbricht had exclusive custody of A.M. during the time

when her [serious bodily] injuries were inflicted prevents the

conclusion that Olbricht committed child abuse.”10 The Court

of Appeals thus implied that proof of exclusive custody or care

is required to support a conviction for knowing and intentional

child abuse resulting in serious bodily injury. But no such

requirement is found in the child abuse statute, and no such

requirement is compelled by precedent.

[3,4] The provisions of § 28-707 do not contain any requirement

that the State must prove a minor child was in the

exclusive care or custody of the defendant when the child

abuse occurred. To the contrary, under Nebraska law, one can

commit child abuse if he or she “knowingly, intentionally, or

negligently causes or permits a minor child” to be abused in

one of the ways prohibited under § 28-707(1). (Emphasis supplied.)

There is no requirement under Nebraska law that the

defendant be physically present when the child abuse occurs,

or that the defendant be the only person present, so long as

he or she knowingly, intentionally, or negligently permits the

child abuse.

8 State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015).

9 Id.

10 State v. Olbricht, supra note 1, 23 Neb. App. at 619, 875 N.W.2d at 876.

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Nor have our cases reviewing child abuse convictions

imposed an exclusive care requirement. In its analysis, the

Court of Appeals cited to several cases in which we affirmed

child abuse convictions.11 In those cases, we noted there was

evidence that the child had been in the sole care of the defendant

during the timeframe when the injuries occurred, but we

did so in the context of analyzing whether the evidence, construed

in the light most favorable to the State, would permit

a rational trier of fact to find the essential elements of the

crime beyond a reasonable doubt. In those cases, we did not

hold that, absent proof of exclusive or sole care, the evidence

would have been insufficient to support a finding of guilt.

And recently, in State v. Cullen,12 we affirmed a conviction

for knowing and intentional child abuse resulting in death,

despite evidence that the defendant was not the only person

with access to the child during the timeframe when the fatal

injuries occurred.

[5] As such, our prior holdings illustrate that evidence showing

a child was in the defendant’s sole care during the timeframe

when the child suffered injuries is circumstantial evidence

from which it can reasonably be inferred that the defendant

caused such injuries,13 but that proof of sole or exclusive care

is not a necessary prerequisite to proving child abuse.14

In this case, the Court of Appeals acknowledged there

was circumstantial evidence that Olbricht caused A.M.’s serious

bodily injuries, including evidence that A.M. was afraid

of Olbricht, that A.M. said Olbricht hurt her, that A.M. had

suffered previous injuries while in Olbricht’s care, and that

11 See, State v. Chavez, 281 Neb. 99, 793 N.W.2d 347 (2011); State v.

Robinson, 278 Neb. 212, 769 N.W.2d 366 (2009); State v. Kuehn, 273

Neb. 219, 728 N.W.2d 589 (2007); State v. Leibhart, 266 Neb. 133, 662

N.W.2d 618 (2003).

12 State v. Cullen, 292 Neb. 30, 870 N.W.2d 784 (2015).

13 See cases cited supra note 11.

14 See State v. Cullen, supra note 12.

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Olbricht had cared for A.M. during the timeframe when she

sustained serious bodily injuries. But it concluded this circumstantial

evidence was “insufficient to overcome the fact that

at least two other individuals could not be excluded as having

caused the brain bleed and lacerated liver that are of significance

in this case.”15 In other words, the Court of Appeals concluded

the circumstantial evidence was insufficient to support

the conviction, because the State had not disproved the possibility

that others with access to A.M. may have caused the

injuries. The suggestion that the State has a different or more

onerous burden of proof in order to convict on circumstantial

evidence is one with which appellate courts, including this

court, have struggled historically.

Prior to 1981, when reviewing circumstantial evidence

on appeal, we followed what was often referred to as the

“accused’s rule.”16 That rule required an appellate court to

apply the inference most favorable to the accused when confronted

with two inferences deducible from circumstantial evidence.

17 The accused’s rule had the effect of requiring the State

“to disprove every hypothesis of nonguilt in order to convict”

using circumstantial evidence.18

But in State v. Buchanan,19 we expressly overruled the

accused’s rule, observing that it “‘lead[s] to serious departures

from the proper appellate role in evaluating the sufficiency

of evidence.’” In rejecting the accused’s rule, we recognized

“[c]ircumstantial evidence is entitled to be treated by the trier

of facts in the same manner as direct evidence” and “‘“the

implied distrust of circumstantial evidence is not warranted.”

. . .’”20 We then stated:

15 State v. Olbricht, supra note 1, 23 Neb. App. at 619, 875 N.W.2d at 876.

16 See State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995).

17 Id.

18 Id. at 545, 537 N.W.2d at 329.

19 State v. Buchanan, 210 Neb. 20, 26, 312 N.W.2d 684, 688 (1981).

20 Id.

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We believe that we must once and for all abandon

any notion that before an accused may be convicted

on the basis of circumstantial evidence alone, the State

must disprove every hypothesis but that of guilt. One

accused of a crime may be convicted on the basis of

circumstantial evidence if, taken as a whole, the evidence

establishes guilt beyond a reasonable doubt. The

State is not required to disprove every hypothesis but

that of guilt.21

Despite our strong language in Buchanan, the accused’s

rule crept back into our jurisprudence in State v. Trimble,22

prompting us to again reject the rule in State v. Morley,23 where

we noted:

[O]n occasion the ghost of a dead rule of law returns to

temporarily haunt the halls of justice. In an effort to exorcise

this mischievous spirit, we hereby reject the Trimble

language which improvidently proclaims that a criminal

conviction based solely on circumstantial evidence can

stand only if the State has disproved every hypothesis but

that of guilt.

Even after our pronouncement in Morley, the accused’s rule

proved difficult to eliminate. More than once, when reviewing

convictions premised only on circumstantial evidence, we

breathed life back into the discredited rule by evaluating circumstantial

evidence using a standard of review which required

inferences from such evidence to be construed in favor of the

accused.24 Under such a standard, we reversed criminal convictions

premised on circumstantial evidence unless we were

21 Id. at 28, 312 N.W.2d at 689.

22 State v. Trimble, 220 Neb. 639, 371 N.W.2d 302 (1985), overruled, State

v. Morley, 239 Neb. 141, 474 N.W.2d 660 (1991).

23 State v. Morley, supra note 22, 239 Neb. at 149, 474 N.W.2d at 667.

24 See, State v. Skalberg, 247 Neb. 150, 526 N.W.2d 67 (1995), overruled,

State v. Pierce, supra note 16; State v. Dawson, 240 Neb. 89, 480 N.W.2d

700 (1992), abrogated, State v. Pierce, supra note 16.

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able to conclude the inference of guilt was stronger than the

inference of nonguilt.25

[6,7] In State v. Pierce,26 we were confronted with our

inconsistent holdings. We chronicled the history of our efforts

to eliminate the accused’s rule and acknowledged that after

expressly rejecting the rule in Buchanan and Morley, we

had allowed it to reenter our jurisprudence. We then, once

again, rejected the accused’s rule and expressly overruled

those cases which had applied the rule in one form or another.

We explained:

“‘Courts following the [accused’s] rule exhibit a noticeable

tendency to divide the evidence into separate lines

of proof, and analyze and test each line of proof independently

of others rather than considering the evidence

as an interrelated whole. The sufficiency of the evidence

is often tested against theoretical and speculative possibilities

not fairly raised by the record, and inferences are

sometimes considered which, though entirely possible or

even probable, are drawn from evidence which the jury

may have disbelieved.’”27

We noted in Pierce that “a fact prove[d] by circumstantial evidence

is nonetheless a proven fact,”28 and we emphasized:

Circumstantial evidence is not inherently less probative

than direct evidence. . . . Whether evidence is circumstantial

or direct, “a jury is asked to weigh the chances

that the evidence correctly points to guilt against the possibility

of inaccuracy or ambiguous inference.” . . . “If

the jury is convinced beyond a reasonable doubt, we can

require no more.”29

25 Id.

26 State v. Pierce, supra note 16.

27 Id. at 547, 537 N.W.2d at 330, quoting State v. Buchanan, supra note 19.

28 State v. Pierce, supra note 16, 248 Neb. at 547, 537 N.W.2d at 330.

29 Id. (citations omitted).

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And finally, we reiterated in Pierce that the proper standard

of review is the same whether we are reviewing a conviction

based on direct or circumstantial evidence:

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 properly admitted evidence, viewed and construed

most favorably to the State, is sufficient to support the

conviction.”30

In the present case, the Court of Appeals’ analysis revived

the accused’s rule by requiring the State to disprove every

hypothesis of nonguilt in order to convict Olbricht using circumstantial

evidence. For all the reasons we articulated in

Buchanan,31 Morley,32 and Pierce,33 we again reject the suggestion

that a different standard of review should be applied to

circumstantial evidence in a criminal case.

Applying the correct standard of review and considering

the material elements of the offense, we find the evidence

was sufficient to support Olbricht’s conviction for knowing

and intentional child abuse resulting in serious bodily injury.

Medical testimony supported a finding that A.M. was a battered

child who had been injured in a multisystem manner

30 Id. at 548, 537 N.W.2d at 330-31.

31 State v. Buchanan, supra note 19.

32 State v. Morley, supra note 22.

33 State v. Pierce, supra note 16.

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over time. Medical testimony indicated her injuries were

intentional and not accidental. Evidence showed A.M.’s brain

bleed and liver laceration were serious bodily injuries. The

evidence also showed A.M. received a variety of suspicious

prior injuries while in Olbricht’s care, and her serious bodily

injuries were inflicted during a timeframe when she was in

Olbricht’s care. The babysitter testified that when she asked

A.M. who hurt her, A.M. said her “daddy” did. Since being

removed from Olbricht’s care, A.M. has not suffered bruising

or other injuries. While Olbricht offered numerous explanations

for A.M.’s various injuries, it can be presumed from the

court’s verdict that it did not find Olbricht’s testimony in that

regard credible.

Viewing this evidence in the light most favorable to the

prosecution, we find it is sufficient to support the verdict. We

therefore reverse the Court of Appeals’ decision.

[8] Upon reversing a decision of the Court of Appeals, we

may consider, as we deem appropriate, some or all of the

assignments of error the Court of Appeals did not reach.34 We

thus proceed to consider Olbricht’s remaining assignments

of error.

Directed Verdict

[9] Olbricht asserts the trial court erred in denying his

motion for directed verdict at the close of the State’s case.

The record confirms that after the motion was denied, Olbricht

proceeded to put on evidence. A defendant who moves for

dismissal or a directed verdict at the close of the evidence in

the State’s case in chief in a criminal prosecution, and who,

when the court overrules the dismissal or directed verdict

motion, proceeds with trial and introduces evidence, waives

the appellate right to challenge correctness in the trial court’s

34 State v. Simnick, 279 Neb. 499, 779 N.W.2d 335 (2010); State v. Hausmann,

277 Neb. 819, 765 N.W.2d 219 (2009).

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overruling the motion for dismissal or a directed verdict but

may still challenge the sufficiency of the evidence.35

By proceeding to introduce evidence after the motion for

directed verdict was overruled, Olbricht waived the right to

challenge the trial court’s ruling on appeal.

Evidentiary Objections

Olbricht’s brief cites to six instances in the record where

testimony was allowed, or exhibits were received, over his

objections. He assigns these evidentiary rulings as error, but

presents no argument as to how or why the court erred, or how

he was prejudiced thereby.

[10] An alleged error must be both specifically assigned

and specifically argued in the brief of the party asserting the

error to be considered by an appellate court.36 This requirement

is not designed to impede appellate review, but to facilitate

it by preventing parties from shifting to appellate courts

the critical tasks of searching the record for relevant facts,

identifying possible error, and articulating a legal rationale

that supports the assigned error.37 Olbricht’s assignment

of error regarding the district court’s evidentiary rulings is

not properly presented for appellate review, and we do not

address it further.

Motion for New Trial

[11] Olbricht asserts the district court erred in refusing to

grant his motion for new trial. In a criminal case, a motion for

new trial is addressed to the discretion of the trial court, and

unless an abuse of discretion is shown, the trial court’s determination

will not be disturbed.38

35 State v. Graff, 282 Neb. 746, 810 N.W.2d 140 (2011).

36 State v. Cook, 290 Neb. 381, 860 N.W.2d 408 (2015); State v. Filholm, 287

Neb. 763, 848 N.W.2d 571 (2014).

37 State v. Ash, 293 Neb. 583, 878 N.W.2d 569 (2016).

38 State v. Parnell, ante p. 551, 883 N.W.2d 652 (2016).

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Our record on appeal does not contain Olbricht’s motion

for new trial, so we are unable to determine whether it was

timely filed or on what grounds a new trial was requested. It

is incumbent upon the defendant who appeals his or her conviction

to present a record which supports the errors assigned;

absent such a record, as a general rule, the decision of the

lower court as to those errors will be affirmed.39

Excessive Sentenc e

Olbricht claims his indeterminate prison sentence of 18

to 30 years is excessive. Before considering this assignment

of error, we pause to address a sentencing issue raised by

the State.

During the sentencing hearing, the court announced a sentence

of incarceration for a term “of not less than 15 years,

not more than 30 years.” The subsequently filed written order,

however, reflects a sentence of imprisonment “for a period of

not less than 18 yrs, nor more than 30 yrs.”

[12] We have held that when a sentence orally pronounced

at the sentencing hearing differs from a later written sentence,

the former prevails.40 Thus, on this record, the law requires

that the minimum term of Olbricht’s prison sentence be modified

to reflect the district court’s oral pronouncement of

15 years.

[13-15] Olbricht was convicted of a Class II felony.41 A

sentence of 15 to 30 years’ imprisonment is within the statutory

limits for such a conviction.42 Imposing a sentence within

statutory limits is a matter entrusted to the discretion of the

trial court.43 Where a sentence imposed within the statutory

39 State v. Abbink, 260 Neb. 211, 616 N.W.2d 8 (2000).

40 State v. Sims, 277 Neb. 192, 761 N.W.2d 527 (2009).

41 See § 28-707(7).

42 See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2014).

43 See State v. Burton, 282 Neb. 135, 802 N.W.2d 127 (2011).

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limits is alleged on appeal to be excessive, the appellate

court must determine whether the sentencing court abused

its discretion in considering and applying the relevant factors

as well as any applicable legal principles in determining the

sentence to be imposed.44 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.45

[16] With regard to the relevant factors that must be considered

and applied, we have stated that when imposing a sentence,

a 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 lawabiding

conduct, and (6) motivation for the offense, as well as

(7) the nature of the offense and (8) the amount of violence

involved in the commission of the crime.46

Here, the presentence investigation report indicated Olbricht

was 25 years of age at the time of sentencing. He had completed

the ninth grade and was unemployed. His criminal

history included juvenile delinquency adjudications and an

unsatisfactory release from juvenile probation. As an adult,

Olbricht had been convicted of several misdemeanors, including

third degree domestic assault and third degree assault. He

had another unrelated felony charge pending in district court at

the time of sentencing, and the presentence investigation report

scored him as a “‘Very High’” risk to reoffend.

The district court indicated it had read and considered the

information contained in the presentence investigation report,

had considered all the evidence adduced at trial, and had considered

the relevant sentencing criteria. The court emphasized

44 State v. Carpenter, 293 Neb. 860, 880 N.W.2d 630 (2016); State v. Dixon,

286 Neb. 334, 837 N.W.2d 496 (2013).

45 State v. Bauldwin, 283 Neb. 678, 811 N.W.2d 267 (2012).

46 State v. Carpenter, supra note 44.

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the serious nature of the crime and the serious and lasting

nature of the injuries inflicted on A.M., and it concluded this

was not an appropriate case for a sentence of probation.

We find no abuse of discretion in Olbricht’s sentence of 15

to 30 years’ imprisonment.