State v. Aguilar-Moreno

State of NebraSka , appellee , v.
JoSe JuaN aguilar-MoreNo, appellaNt.
769 N.W.2d 784
Filed May 26, 2009. 	No. A-08-1008.
1. Rules of Evidence: Appeal and Error. The exercise of judicial discretion is
implicit in determinations of relevancy under Neb. Evid. R. 401, Neb. Rev. Stat.
§ 27-401 (Reissue 2008), and prejudice under Neb. Evid. R. 403, Neb. Rev. Stat.
§ 27-403 (Reissue 2008), and a trial court’s decision regarding them will not be
reversed absent an abuse of discretion.
2. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
3. Sentences: Appeal and Error. A sentence imposed within statutory limits will
not be disturbed on appeal absent an abuse of discretion by the trial court.
4. Judgments: Words and Phrases. 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.
5. Trial: Evidence: Waiver: Appeal and Error. Ordinarily, error is waived if after
a party has adduced objectionable evidence, the opposing party adduces on direct
or cross-examination evidence on the same subject.
6. Trial: Evidence. Only evidence tending to suggest a decision on an improper
basis is unfairly prejudicial.
7. Convicted Sex Offender: Pleas. Nebraska’s Sex Offender Registration Act
applies to any person who pleads guilty to or is found guilty of certain offenses
listed in Neb. Rev. Stat. § 29-4003(1) (Reissue 2008).
8. Convicted Sex Offender: Judgments. Neb. Rev. Stat. § 29-4005(2) (Reissue
2008) requires a court’s finding relating to the lifetime registration requirement
to be part of the court’s judgment.
9. Sentences. 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 law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature of the offense, and (8)
the violence involved in the commission of the crime.
10. ____. In imposing a sentence, the sentencing court is not limited to any mathe-
matically applied set of factors.
11. ____. The appropriateness of a sentence is necessarily a subjective judgment
and includes the sentencing judge’s observation of the defendant’s demeanor and
attitude and all the facts and circumstances surrounding the defendant’s life.
Appeal from the District Court for Adams County: StepheN
r. illiNgworth, Judge. Affirmed in part, and in part vacated.
Arthur C. Toogood, Adams County Public Defender, for
appellant.
STATE v. AguIlAR-MORENO 	623
Cite as 17 Neb. App. 623
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

Jon Bruning, Attorney general, and Stacy M. Foust for
appellee.
iNbody, Chief Judge, and SieverS and CaSSel, Judges.
CaSSel, Judge.
INTRODuCTION
After a jury convicted Jose Juan Aguilar-Moreno of incest
of his adult daughter, the district court sentenced Aguilar-
Moreno to 19 to 20 years’ imprisonment and required him
to register as a sex offender for the remainder of his life. We
conclude that the court did not abuse its discretion in allow-
ing evidence of sexual activity between Aguilar-Moreno and
his daughter that occurred outside of Nebraska and of DNA
evidence concerning the paternity of his daughter’s child. We
vacate the court’s findings regarding the registration require-
ment because incest of an adult is not a registrable offense.
Finally, we conclude that the court did not impose an exces-
sive sentence.
BACKgROuND
The victim in this case, T.A.C., was born in 1977 and was
30 years old at the time of trial. The State originally charged
Aguilar-Moreno with first degree sexual assault, but it later
filed an amended information charging Aguilar-Moreno with
incest of T.A.C. based on events occurring in Adams County,
Nebraska, between January 1, 1999, and August 1, 2007. After
trial commenced, the court sustained Aguilar-Moreno’s oral
“demur[rer]” based on the statute of limitations and limited the
charged conduct to that occurring between March 15, 2005,
and August 1, 2007.
Following a hearing concerning the State’s intention to
adduce evidence of other crimes, wrongs, or acts under Neb.
Evid. R. 404, Neb. Rev. Stat. § 27-404 (Reissue 2008), the
court found that the evidence sought to be introduced by
the State—evidence of Aguilar-Moreno’s sexual penetration of
T.A.C. in Mexico and Texas and evidence that T.A.C.’s child
is Aguilar-Moreno’s biological child—was admissible under
§ 27-404(2) as evidence of opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.
624 	17 NEBRASKA APPEllATE REPORTS

The court conducted a 3-day jury trial beginning on March
31, 2008. After the jury was selected but prior to opening state-
ments, Aguilar-Moreno’s attorney made a continuing objection
to the challenged evidence. He contended that such evidence
was highly prejudicial and that the prejudice substantially out-
weighed any evidentiary value.
Aguilar-Moreno denied having had sex with T.A.C. On the
other hand, T.A.C. testified that Aguilar-Moreno first sexually
abused her when she was 16 years old and living in Mexico.
She testified that Aguilar-Moreno would beat her and her
mother if T.A.C. did not do as Aguilar-Moreno wanted. T.A.C.
denied ever having sexual intercourse with anyone other than
her father. She testified that her father impregnated her when
she was 18 and that he took her to Texas, where her son—who
was 11 years old at the time of trial—was born. Aguilar-
Moreno denied paternity of T.A.C.’s child and testified that
he did not know she was pregnant until 3 months after they
arrived in Texas.
In October 1998, T.A.C. and her son moved with Aguilar-
Moreno to Hastings, Nebraska. They moved into a house with
other immediate family members. T.A.C. testified that since
arriving in Hastings, her father forced her to have sex with him
every day. T.A.C. testified that Aguilar-Moreno would threaten
to kill her if she did not have sex with him and that he said her
“family was going to pay for it if [she] didn’t do it.”
On August 2, 2007, T.A.C. had an argument with Aguilar-
Moreno over money, and T.A.C. testified that Aguilar-Moreno
threatened to kill her and her brothers if she left the house.
later that day, T.A.C. left the family home along with other
family members and told her entire family what had been
happening to her all these years. On August 21, she reported
Aguilar-Moreno’s sexual contact with her to the police. She tes-
tified that she did not report it earlier because she believed her
father’s threats and was afraid of him. Members of the Hastings
police department obtained buccal swabs from T.A.C., her
son, and Aguilar-Moreno. A DNA analyst performed paternity
testing on T.A.C.’s child and concluded that Aguilar-Moreno
could not be excluded as the father. The analyst testified that it
was “84,900 times more likely that the observed DNA profiles
STATE v. AguIlAR-MORENO 	625
Cite as 17 Neb. App. 623

from these individuals [was] a true paternity mother, child,
and father [versus] a mother, child, and random male[’s] being
the father.”
The jury found Aguilar-Moreno guilty of incest. During the
sentencing hearing on August 18, 2008, the court stated that
pursuant to Nebraska’s Sex Offender Registration Act (Act),
Aguilar-Moreno must register within 5 days of release from
incarceration and within 5 days of any change of address
for the rest of his life. In a “Journal Entry and Order” filed
August 20, the court stated that it notified Aguilar-Moreno of
his duties to comply with the Act and with the requirements
of lifetime community supervision. The court then ordered
that Aguilar-Moreno be incarcerated for 19 to 20 years but
made no further mention of any registration requirements. On
August 21, the judge and Aguilar-Moreno signed a “Notice
of general Conditions of Civil Commitment Evaluation and
lifetime Community Supervision.” The notice stated in part,
“IT IS ORDERED, pursuant to the . . . Act, . . . you must
register . . . for the remainder of your life.” The final sentence
of the order stated, “AS TO All OF THE FOREgOINg, IT
IS SO ORDERED.” Also on August 21, the court entered a
“Journal Entry and Order,” which stated that the court notified
Aguilar-Moreno of his duty to comply with the Act and that
“IT IS SO ORDERED.” The commitment did not refer to any
registration requirement.
Aguilar-Moreno timely appeals.
ASSIgNMENTS OF ERROR
Aguilar-Moreno assigns, reordered and consolidated, that
the district court erred in (1) allowing the State to present evi-
dence of sexual activity with T.A.C. which occurred in Mexico
and Texas and evidence that he is the father of T.A.C.’s child,
(2) requiring him to register as a sex offender for incest of an
adult, and (3) imposing an excessive sentence.
STANDARD OF REVIEW
[1] The exercise of judicial discretion is implicit in deter-
minations of relevancy under Neb. Evid. R. 401, Neb. Rev.
Stat. § 27-401 (Reissue 2008), and prejudice under Neb. Evid.
626 	17 NEBRASKA APPEllATE REPORTS

R. 403, Neb. Rev. Stat. § 27-403 (Reissue 2008), and a trial
court’s decision regarding them will not be reversed absent
an abuse of discretion. State v. Schmidt, 276 Neb. 723, 757
N.W.2d 291 (2008).
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the determination made by
the court below. State v. Moore, 277 Neb. 111, 759 N.W.2d
698 (2009).
[3,4] A sentence imposed within statutory limits will not be
disturbed on appeal absent an abuse of discretion by the trial
court. Id. An abuse of discretion occurs when a trial court’s
decision is based upon reasons that are untenable or unreason-
able or if its action is clearly against justice or conscience,
reason, and evidence. Id.
ANAlYSIS
Evidence of Sexual Activity Outside
of Nebraska and Paternity.
[5] Aguilar-Moreno argues that evidence of sexual relations
with T.A.C. in Mexico and Texas and of his fathering T.A.C.’s
child should have been excluded from trial because it was
unfairly prejudicial. The State contends that Aguilar-Moreno
has waived any error regarding the admission of this evidence
because his counsel elicited testimony on the subjects during
cross-examination of T.A.C. and her mother and during direct
examination of Aguilar-Moreno. Ordinarily, error is waived if
after a party has adduced objectionable evidence, the opposing
party adduces on direct or cross-examination evidence on the
same subject. State v. Rieger, 260 Neb. 519, 618 N.W.2d 619
(2000). However, the rule does not apply where the object-
ing party introduces similar evidence solely for the purpose
of meeting the adversary’s case by explaining or rebutting the
original evidence. Id. We conclude that the exception to the
general rule applies in this case because the testimony elicited
by Aguilar-Moreno’s counsel was to explain or rebut prior
admitted testimony.
The district court found that the evidence at issue was admis-
sible under § 27-404(2) as evidence of opportunity, intent,
STATE v. AguIlAR-MORENO 	627
Cite as 17 Neb. App. 623

preparation, plan, knowledge, identity, or absence of mistake
or accident. Aguilar-Moreno does not appear to argue that
the court’s determination of a proper purpose was erroneous;
rather, his argument focuses on admissibility under § 27-403.
We limit our analysis accordingly.
[6] Relevant evidence “may be excluded if its probative
value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” § 27-403. Only evidence
tending to suggest a decision on an improper basis is unfairly
prejudicial. State v. Gutierrez, 272 Neb. 995, 726 N.W.2d
542 (2007).
The sexual assaults and events occurring in Mexico and
Texas are connected with the circumstances leading to the
crime charged. The evidence established that the sexual con-
duct occurred over a long period of time, and it showed the
circumstances under which T.A.C. arrived in the united States,
i.e., that Aguilar-Moreno took T.A.C. to Texas because he did
not want the family to realize she was pregnant. Also, the
evidence helped explain why T.A.C. did not report the sexual
conduct earlier. Further, because Aguilar-Moreno denied hav-
ing had sex with T.A.C., the fact that he could not be excluded
as the father of T.A.C.’s child was highly probative of the issue
at the heart of the case—whether Aguilar-Moreno engaged in
sexual penetration with his daughter. We conclude that the dis-
trict court did not abuse its discretion in allowing evidence that
sexual activity occurred between T.A.C. and Aguilar-Moreno
outside of Nebraska and that Aguilar-Moreno could not be
excluded as the father of T.A.C.’s child, because the probative
value of the evidence was not substantially outweighed by any
prejudice to Aguilar-Moreno.
Registration as Sex Offender.
[7] Aguilar-Moreno argues that the court erred in requiring
him to register under the Act. The Act applies to any person
who pleads guilty to or is found guilty of certain offenses
listed in Neb. Rev. Stat. § 29-4003(1) (Reissue 2008). State v.
628 	17 NEBRASKA APPEllATE REPORTS

Hamilton, 277 Neb. 593, 763 N.W.2d 731 (2009). Certain sex
offenders, including those who commit an aggravated offense
or who have a prior conviction for a registrable offense, are
subject to a lifetime registration requirement. See, id.; Neb.
Rev. Stat. § 29-4005(2) (Reissue 2008). Other sex offend-
ers are required to register for a period of 10 years. See
§ 29-4005(1).
Aguilar-Moreno contends that because § 29-4003(1)(a)(vii)
applies the Act only to “incest of a minor” (emphasis supplied)
and because T.A.C. was not a minor at any time of the instant
offense, the Act did not impose a registration requirement upon
him as a result of the instant offense. He does not discuss the
fact that a prior conviction had subjected him to the Act’s 10-
year registration requirement.
The court determined that the instant conviction caused
Aguilar-Moreno to become subject to lifetime registration and
supervision. During the sentencing hearing, the court ordered
Aguilar-Moreno to register under the Act within 5 days of
release from incarceration and within 5 days of any change
of address “for the remainder of your life.” The court further
ordered that Aguilar-Moreno was subject to lifetime commu-
nity supervision by the Office of Parole Administration. The
court’s written sentencing order states in its findings that it
notified Aguilar-Moreno of his duties to comply with the Act.
The day after the court entered its written judgment, a notifica-
tion of registration responsibilities under the Act—signed by
Aguilar-Moreno and the judge—was filed, and it “ordered”
Aguilar-Moreno to register under the Act for the remainder of
his life.
The State asserts that the registration requirement is not
properly at issue in this direct appeal. We compare two
Nebraska Supreme Court decisions that guide our answer to
the State’s assertion.
In State v. Torres, 254 Neb. 91, 574 N.W.2d 153 (1998),
the court sentenced the defendant to probation and informed
him of his duty to comply with the Act, but the defendant’s
obligation to register pursuant to the Act was not made part
of the court’s order. The defendant appealed, arguing that his
STATE v. AguIlAR-MORENO 	629
Cite as 17 Neb. App. 623

sentence was excessive because the Act potentially increased
his sentence for failing to register. The Nebraska Supreme
Court stated that the defendant attempted to challenge his sen-
tence by arguing that the Act violates state and federal Ex Post
Facto Clauses, but that he was prohibited from challenging his
conviction by mounting a constitutional attack on another stat-
ute. The Supreme Court determined that the Act’s registration
requirements were separate and collateral to any sexual offense
affected by the Act and that the registration requirements
“arose solely and independently by the terms of the [A]ct itself
only after [the defendant’s] conviction.” State v. Torres, 254
Neb. at 95, 574 N.W.2d at 155.
The Nebraska Supreme Court distinguished Torres in State
v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004). In Worm, the
defendant was subjected to the lifetime registration require-
ment associated with an aggravated offense. At the time of
the Torres decision, the lifetime registration requirement for
committing an aggravated offense did not exist. See 2002 Neb.
laws, l.B. 564. The Worm court stated that the lifetime reg-
istration requirement for an aggravated offense did not arise
solely and independently from the defendant’s conviction, but,
rather, the court was required, as part of the sentence, to deter-
mine whether the offense was aggravated and make that fact
part of the sentencing order. See § 29-4005(2). Thus, the Worm
court determined that the court’s finding that the defendant
committed an aggravated offense was part of the judgment,
and it considered the constitutional challenge to the registra-
tion requirements.
While both of these decisions assist us, neither case provides
a specific answer to the question before us. In the above cases,
the defendants sought to challenge the requirements at issue
on constitutional grounds. Here, Aguilar-Moreno is not chal-
lenging the constitutionality of the registration requirement;
rather, he is arguing that the court erred in finding that he was
subject to the Act based on the conviction at issue. like the
defendant in Torres, Aguilar-Moreno was not found to have
committed an aggravated offense. But like the defendant in
Worm, Aguilar-Moreno was subjected to a lifetime registration
630 	17 NEBRASKA APPEllATE REPORTS

requirement under § 29-4005(2), rather than the 10-year regis-
tration in Torres.
[8] In the instant case, the district court evidently recog-
nized that Aguilar-Moreno had previously been ordered to
register as a sex offender and that he was still subject to the
10-year registration period. Because the statutes required the
court to make a finding of fact concerning lifetime registration
as part of the sentencing judgment, we consider the situation
in the instant case similar to the circumstances in Worm. like
the defendant in Worm, the court required Aguilar-Moreno
to register under the Act for the rest of his life. Section
29-4005(2) instructs that a person required to register under
§ 29-4003 must register for the rest of his or her life if the
person has a prior conviction for a registrable offense and that
the court make that fact part of the sentencing order. Because
§ 29-4005(2) required the court’s finding relating to the life-
time registration requirement to be part of the court’s judg-
ment, we conclude that Aguilar-Moreno’s claim is properly
before us in this direct appeal.
As we have already stated, § 29-4003(1)(a)(vii) provides
that the Act applies to any person found guilty of incest of a
minor, pursuant to Neb. Rev. Stat. § 28-703 (Reissue 2008).
Here, Aguilar-Moreno was convicted of violating § 28-703,
but he committed incest of an adult. Accordingly, the district
court erred in finding that Aguilar-Moreno was subject to the
provisions of the Act based upon this conviction. We conclude
that the portion of Aguilar-Moreno’s sentence requiring him
to register as a sex offender for the remainder of his life must
be vacated.
Excessiveness of Sentence.
Aguilar-Moreno argues that the sentence of 19 to 20 years’
incarceration is excessive and disproportionate to the severity
of the offense when considered with his background and prior
record. Incest is a Class III felony, which is punishable by
a minimum of 1 year’s imprisonment and a maximum of 20
years’ imprisonment, a $25,000 fine, or both. See Neb. Rev.
Stat. §§ 28-105(1) (Reissue 2008) and 28-703(2). The sentence
imposed is within the statutory limit.
STATE v. AguIlAR-MORENO 	631
Cite as 17 Neb. App. 623

[9-11] 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 law-abiding conduct, and (6) moti-
vation for the offense, as well as (7) the nature of the offense,
and (8) the violence involved in the commission of the crime.
State v. Nelson, 276 Neb. 997, 759 N.W.2d 260 (2009). In
imposing a sentence, the sentencing court is not limited to any
mathematically applied set of factors. Id. The appropriateness
of a sentence is necessarily a subjective judgment and includes
the sentencing judge’s observation of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding the
defendant’s life. Id.
Aguilar-Moreno was born in 1957, and he completed 8 or 9
years of education in Mexico. He is a registered sex offender,
due to an April 2000 incident because of which he was con-
victed of criminal trespass and sexual assault without consent.
He was also sentenced to 90 days in jail for an August 2007
violation of a protection order. The court stated that Aguilar-
Moreno was not a suitable candidate for probation and that
there was a high likelihood that he would engage in addi-
tional criminal conduct. The court observed that testing showed
Aguilar-Moreno scored in the “very high risk” range for pro-
criminal attitude and as a high risk for recidivism. According
to the presentence investigation report, Aguilar-Moreno is not
amenable to treatment because of his unwillingness to admit
any wrongdoing in this case and it is likely that T.A.C. will be
in danger if Aguilar-Moreno were released into the community.
We find no abuse of discretion by the district court in its deter-
mination of the sentence.
CONCluSION
We conclude that the court did not abuse its discretion in
allowing evidence of sexual activity between Aguilar-Moreno
and T.A.C. that occurred outside of Nebraska and of evidence
concerning the paternity of T.A.C.’s child because the probative
value of such evidence was not unfairly prejudicial to Aguilar-
Moreno. We vacate the court’s findings regarding the registra-
tion requirement under the Act because incest of an adult is not
632 	17 NEBRASKA APPEllATE REPORTS

a registrable offense. Finally, we conclude that the court did
not impose an excessive sentence.
affirMed iN part, aNd iN part vaCated.
State of NebraSka , appellee , v.
deNiSe M. SMith , appellaNt.
771 N.W.2d 151
Filed May 26, 2009. 	No. A-08-1013.
1. Ordinances: Minors: Negligence: Proof. The plain language of the Omaha city
ordinance regarding caretaker neglect requires proof by the State that the defend-
ant acted negligently in placing a child in a situation that endangered the child’s
life or physical or mental health.
2. Minors: Negligence: Licenses and Permits. Despite the importance and func-
tion of licensing childcare providers, the failure to be properly licensed is not
negligence per se.
Appeal from the District Court for Douglas County, SaNdra
l. dougherty, Judge, on appeal thereto from the County Court
for Douglas County, lyN v. white, Judge. Judgment of District
Court affirmed in part, and in part reversed.
James W. Knowles, Jr., and Matthew J. Knowles, of Knowles
law Firm, for appellant.
Paul D. Kratz, Omaha City Attorney, Martin J. Conboy III,
Omaha City Prosecutor, and Kevin J. Slimp for appellee.
irwiN, CarlSoN, and Moore, Judges.
irwiN, Judge.
I. INTRODuCTION
Denise M. Smith was charged under Omaha city ordi-
nances with the crimes of caretaker neglect and giving false
information to a police officer for events surrounding the
injury of an infant at Smith’s childcare facility. Smith was
convicted of both offenses in the county court for Douglas
County, Nebraska, and her convictions and sentences were
affirmed by the district court. In this appeal, Smith chal-
lenges the sufficiency of the evidence to support the caretaker
neglect conviction and alleges that the sentences imposed
STATE v. SMITH 	633
Cite as 17 Neb. App. 633