State v. Davis

state v. davis 	161
Cite as 277 Neb. 161
entities which leased or purchased surface water rights from
the Bostwick irrigation district to further compliance with the
Compact. Neither the department nor the individual NRd’s
were parties or signatories to the Compact or the settlement.
the state is obligated to comply with the Compact, and a
property tax in furtherance of compliance is, for purposes of
analysis under Neb. Const. art. viii, § 1a, a property tax levied
by the state for state purposes.
CONCLUsiON
We conclude that L.B. 701(1)(d) violates the prohibition
against levying a property tax for state purposes found in Neb.
Const. art. viii, § 1a, and that such provision is therefore
unconstitutional. Under § 34 of L.B. 701, we sever the offend-
ing provision and our ruling has no bearing on the remaining
provisions of L.B. 701. Because of our resolution of this case,
we need not consider the remaining assignments of error. see
Papillion Rural Fire Prot. Dist. v. City of Bellevue, 274 Neb.
214, 739 N.W.2d 162 (2007). although our reasoning dif-
fers from that of the district court, which also concluded that
§ 11(1)(d) of L.B. 701 was unconstitutional, albeit on another
basis, see Tyson Fresh Meats v. State, 270 Neb. 535, 704
N.W.2d 788 (2005), we affirm the order of the district court,
which declared § 11(1)(d) of L.B. 701 unconstitutional and
enjoined its enforcement.
A ffirmed.
StAte of NebrASkA, Appellee , v.
perry d. dAviS, AppellANt.
762 N.W.2d 287
Filed February 13, 2009. 	No. s-08-316.
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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

2. ____: ____: ____: ____. 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. those matters are for the finder of fact.
3. Testimony: Time: Proof. since 1989, the state has not been required to cor-
roborate a victim’s testimony in cases of first degree sexual assault; the victim’s
testimony alone is sufficient if believed by the finder of fact.
4. Convictions: Evidence: Appeal and Error. 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.
5. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative
value as a matter of law may an appellate court set aside a guilty verdict as
unsupported by evidence beyond a reasonable doubt.
6. Criminal Law: Appeal and Error. an appellate court’s standard of review for
criminal cases requires substantial deference to the factual findings made by
the jury.
7. Sentences: Appeal and Error. an appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
8. 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.
9. Sentences. the appropriateness of a sentence is necessarily a subjective judgment
that 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 sheridan County: briAN
C. SilvermAN and rANdAll l. lippStreu, Judges. affirmed as
modified.
P. stephen Potter and Barbara Brogan for appellant.
Jon Bruning, attorney General, and Nathan a. Liss for
appellee.
H eAviCAN, 	C.J., 	WrigHt, 	C oNNolly, 	gerrArd, 	StepHAN,
mCC ormACk , and miller-lermAN, JJ.
C oNNolly, J.
i. sUmmaRy
in september 2007, a jury convicted Perry d. davis of one
count of first degree sexual assault and one count of sexual
assault of a child. in march 2008, the district court sentenced
him to 20 to 30 years’ imprisonment for first degree sexual
assault and 4 to 5 years’ imprisonment for sexual assault of a
162 	277 NeBRaska RePORts

child and the court ordered the sentences to run consecutively.
davis makes two arguments: the state failed to produce suffi-
cient evidence to support the convictions, and the district court
erred in imposing excessive sentences. We disagree and affirm
as modified.
ii. BaCkGROUNd
in 1992, davis lived in Chadron, Nebraska, and began a
relationship with the victim’s mother who lived in Rushville,
Nebraska. against this background, the record reflects that
davis started to sexually assault the victim when she was age
4. the first incident occurred while davis, his children, the
victim, and her two brothers were driving on a county road
between Hay springs, Nebraska, and Chadron. davis’ son,
who was 12 at the time, was driving because davis was drink-
ing. davis was riding in the front passenger seat, with his
daughter sitting on his lap. the victim was sitting on the con-
sole between the driver’s seat and the passenger’s seat. davis
asked the girls to switch places so that the victim could sit on
his lap.
the victim testified that once she was sitting on his lap,
davis put his arms around her, put his hand up her dress, and
inserted his fingers into her vagina. the victim told davis to
stop and attempted to pull away because it hurt, but davis told
her to sit still. although davis’ daughter was sitting right next
to her, the victim testified that she did not believe anyone could
see what davis was doing. after the car got a flat tire and
stopped, the victim’s younger brother asked if she was crying.
the victim did not tell her brother what happened, and, after
the tire was fixed, the victim got into the back seat. the victim
did not tell anyone about the incident until she was 14. davis
denies it occurred.
the victim testified that the next incident happened when
she was 9 or 10. she was sleeping in her mother’s bed and,
upon waking up, realized that davis had pulled up her shirt
and was caressing her body. He was rubbing her stomach,
her arms from the shoulders down to the hands, and her legs
from the ankles to the inner thighs. the victim testified that
the rubbing continued for 5 or 10 minutes and ended when
state v. davis 	163
Cite as 277 Neb. 161

she got up and went to the bathroom. davis denied that this
episode occurred.
in another incident, the victim testified that when she was
12, she was lying in her bed when davis came into her room
and began rubbing her buttocks. davis took off the victim’s
pants and underwear, took his own pants off, and climbed into
bed with her. the victim said, “‘What are you doing?’” and
then she felt davis’ penis on her leg. davis did not insert his
penis, but he did insert his fingers into her vagina. the victim
got scared, started crying, and ran to the bathroom. at trial,
the victim testified that during this incident, davis penetrated
her vagina with his fingers. Previously, however, the victim
had told an investigator that no penetration occurred during
this incident.
the victim did not tell anyone about any of these incidents
until she was 14, when she told a friend. the victim told
her mother about the abuse for the first time in march 2006,
when she was 17. Her mother confronted davis with the
victim’s accusations, and he denied them. davis continued to
live with the victim’s family periodically during the summer
of 2006.
the victim testified that in July or august 2006, she con-
fronted davis. When davis was standing in her family’s kitchen
with her mother and her two brothers, the victim grabbed a
knife, held it to davis’ neck, and threatened to stab him if he
did not tell the truth about the assaults. the victim eventually
put the knife down, at which point davis said that the victim
was lying to get attention. the victim’s mother testified that
the victim then started hitting and kicking davis and that one
of the victim’s brothers had to take davis home. Later, davis
called the victim’s mother and told her that if they pressed
charges against him, he would kill himself.
in the fall of 2006, the victim reported the sexual abuse to
the guidance counselor at her school. the victim was pregnant
at the time and testified that she was worried that davis would
be a threat to her child. at trial, davis testified that he never
had any inappropriate contact with the victim. the jury con-
victed davis of one count of first degree sexual assault and one
count of sexual assault of a child.
164 	277 NeBRaska RePORts

iii. assiGNmeNts OF eRROR
davis assigns, consolidated and restated, that there was
insufficient evidence to support his convictions and that the
district court erred in imposing excessive sentences.
iv. staNdaRd OF RevieW
[1,2] 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.1 and in our review, we do
not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence. those matters are for the
finder of fact.2 in summary, a defendant that asserts an insuf-
ficiency of the evidence claim has a steep hill to climb.
v. aNaLysis
1. SuffiCieNCy of evideNCe
(a) First degree sexual assault
in February 2007, the state charged davis with first degree
sexual assault “on or about February 24, 1993, to February 24,
2002.” in 1993, when this offense initially occurred, a person
committed first degree sexual assault if they subjected “another
person to sexual penetration [when] the actor is nineteen years
of age or older and the victim is less than sixteen years of
age.”3 sexual penetration included
sexual intercourse in its ordinary meaning, cunnilingus,
fellatio, anal intercourse, or any intrusion, however slight,
of any part of the actor’s or victim’s body or any object
manipulated by the actor into the genital or anal openings
of the victim’s body which can be reasonably construed
as being for nonmedical or nonhealth purposes.4
1 State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008).
2 Id.; State v. Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
3 Neb. Rev. stat. § 28-319(1)(c) (Reissue 1989).
4 Neb. Rev. stat. § 28-318(6) (Reissue 1989).
state v. davis 	165
Cite as 277 Neb. 161

[3] davis first contends that the evidence is insufficient to
support his conviction for first degree sexual assault. He argues
that the state failed to present corroborating evidence and that
the victim’s testimony is not credible. this argument conflicts
with Nebraska’s penal statutes. davis apparently overlooks the
1989 enactment of Neb. Rev. stat. § 29-2028 (Reissue 1995).
since 1989, the state has not been required to corroborate a
victim’s testimony in cases of first degree sexual assault.5 so,
the victim’s testimony alone is sufficient if believed by the
finder of fact. davis’ argument fails.
[4-6] davis’ second claim, that the victim’s testimony was
unreliable, also fails. Remember, we do not resolve conflicts in
the evidence, pass on the credibility of witnesses, or reweigh
the evidence.6 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.7 Only where evidence lacks sufficient probative
value as a matter of law may an appellate court set aside a guilty
verdict as unsupported by evidence beyond a reasonable doubt.8
and our standard of review for criminal cases requires substan-
tial deference to the factual findings made by the jury.9
the victim testified that when she was 4, davis digitally
penetrated her vagina while riding in a vehicle with other
family members. Because there was sexual penetration, the
incident fulfills all the elements of first degree sexual assault.
While davis denied these allegations, a jury determined other-
wise. We conclude the state presented sufficient evidence to
prove the first degree sexual assault conviction beyond a rea-
sonable doubt.
(b) sexual assault of a Child
davis also contends that the record lacks sufficient evi-
dence to support his conviction for sexual assault of a child.
5 see 1989 Neb. Laws, L.B. 443 (effective mar. 15, 1989).
6 see Davis, supra note 1.
7 State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).
8 State v. Ramsay, 257 Neb. 430, 598 N.W.2d 51 (1999).
9 see, Davis, supra note 1; Iromuanya, supra note 2.
166 	277 NeBRaska RePORts

He argues that the statute required the state to prove that the
victim experienced “‘serious personal injury’” because of the
assault.10 We disagree. davis’ argument presents an issue of
statutory construction, and if the language of a statute is clear,
the words of the statute are the end of our inquiry.11
a person commits sexual assault of a child if he or she sub-
jects another person 14 years of age or younger to sexual con-
tact and the actor is at least 19 years of age or older.12 section
28-318(5) defines sexual contact to mean
the intentional touching of the victim’s sexual or intimate
parts or the intentional touching of the victim’s clothing
covering the immediate area of the victim’s sexual or
intimate parts. sexual contact shall also mean the touch-
ing by the victim of the actor’s sexual or intimate parts
or the clothing covering the immediate area of the actor’s
sexual or intimate parts when such touching is intention-
ally caused by the actor. sexual contact shall include
only such conduct which can be reasonably construed as
being for the purpose of sexual arousal or gratification of
either party.
intimate parts mean the genital area, groin, inner thighs, but-
tocks, or breasts.13
simply put, we see nothing in § 28-318(5) or § 28-320.01(1)
that shows a serious personal injury was a statutory element
when davis committed his crime. thus, his serious personal
injury argument also fails.
2. tHe diStriCt C ourt C ommitted plAiN error
WitH tHe SeNteNCe impoSed oN C ouNt ii
the district court sentenced davis to 4 to 5 years’ impris-
onment for his conviction of sexual assault of a child. Before
July 1998, sexual assault of a child, as defined in § 28-320.01,
was a Class iv felony.14 in 1998, the Legislature reclassified
10 Brief for appellant at 11.
11 see State v. Rhea, 262 Neb. 886, 636 N.W.2d 364 (2001).
12 Neb. Rev. stat. § 28-320.01(1) (Cum. supp. 1992).
13 § 28-318(2).
14 see § 28-320.01 (Cum. supp. 1996).
state v. davis 	167
Cite as 277 Neb. 161

it as a Class iiia felony.15 thus, during the applicable time-
frame—February 1993 to February 2002—sexual assault of
a child was both a Class iv and a Class iiia felony. Because
the state clearly charged and convicted davis of the crime
as a Class iv felony, we will review his sentence as a Class
iv felony.
although not raised in davis’ brief, the state brings to our
attention that during the applicable timeframe, the Legislature
amended the Class iv felony sentencing statutes. Before July
1998, davis’ indeterminate sentence of 4 to 5 years’ imprison-
ment for a Class iv felony conviction was a valid sentence.
as of July 1998, however, the minimum portion of an indeter-
minate sentence imposed on a Class iv felony cannot exceed
one-third of the maximum term provided by law; i.e., no more
than 20 months’ imprisonment.16 thus, during the applicable
timeframe, the Legislature shortened the maximum minimum
sentence for a Class iv felony.
in State v. Urbano,17 we analyzed the effect of a change in
a sentencing statute after the criminal act was committed but
before a final judgment is entered. We concluded that “where a
criminal statute is amended by mitigating the punishment, after
the commission of a prohibited act but before final judgment,
the punishment is that provided by the amendatory act unless
the Legislature has specifically indicated otherwise.”18 in this
case, there is not a final judgment until the entry of a final
mandate by this court.19
the charges filed against davis and the jury instructions
state that these crimes began before 1998. so, davis is enti-
tled to the benefit of the amendment, because the crimi-
nal statute was amended after the criminal act but before a
final judgment.
15 Compare § 28-320.01 (Cum. supp. 1992 & Cum. supp. 1996) with
§ 28-320.01(3) (Cum. supp. 1998).
16 Neb. Rev. stat. § 29-2204(1)(a)(ii)(a) (Reissue 2008).
17 State v. Urbano, 256 Neb. 194, 589 N.W.2d 144 (1999).
18 Id. at 206, 589 N.W.2d at 154.
19 see id. see, also, State v. Gale, 265 Neb. 598, 658 N.W.2d 604 (2003).
168 	277 NeBRaska RePORts

We modify the minimum portion of davis’ sentence so
that it does not exceed the maximum minimum permitted by
law for a Class iv felony indeterminate sentence.20 thus, we
modify davis’ sentence to a term of 20 months’ to 5 years’
imprisonment.
3. exCeSSive SeNteNCeS
Finally, davis argues that his sentences are excessive. a jury
convicted davis of first degree sexual assault, a Class ii felony
under § 28-319. Neb. Rev. stat. § 28-105 (Reissue 2008) pro-
vides that a Class ii felony is punishable by a minimum of 1
year’s imprisonment and a maximum of 50 years’ imprison-
ment. the sentence of 20 to 30 years’ imprisonment on that
conviction was within the statutory range of 1 to 50 years’
imprisonment. davis was also convicted of sexual assault of
a child, a Class iv felony.21 Under the amended sentencing
guidelines, a Class iv felony is punishable by a maximum of 5
years’ imprisonment, a $10,000 fine, or both, and has no mini-
mum sentence.22 davis’ modified sentence of 20 months’ to 5
years’ imprisonment is within the statutory range.
[7-9] Because the sentences imposed on davis fall within
the statutory sentencing limits, we review the sentences for
an abuse of discretion.23 an abuse of discretion occurs when
a trial court’s decision is based upon reasons that are unten-
able or unreasonable or if its action is clearly against justice
or conscience, reason, and evidence.24 the appropriateness of
a sentence is necessarily a subjective judgment that includes
the sentencing judge’s observation of the defendant’s demeanor
and attitude and all the facts and circumstances surrounding
the defendant’s life.25 We have listed factors that control any
sentence imposed by the district court:
20 see Urbano, supra note 17. see, also, State v. Hedglin, 192 Neb. 545, 222
N.W.2d 829 (1974).
21 § 28-320.01(2) (Cum. supp. 1992).
22 see §§ 28-105 and 29-2204(1)(a)(ii)(a).
23 see Davis, supra note 1.
24 Id.; State v. Reid, 274 Neb. 780, 743 N.W.2d 370 (2008).
25 Id.; Iromuanya, supra note 2.
state v. davis 	169
Cite as 277 Neb. 161

“in imposing a sentence, a judge should consider the
defendant’s age, mentality, education, experience, and
social and cultural background, as well as his or her past
criminal record or law-abiding conduct, motivation for the
offense, nature of the offense, and the amount of violence
involved in the commission of the crime.”26
Furthermore, the seriousness of the offense is an important
factor in the setting of a sentence.27 Considering all relevant
factors, we conclude that the sentences are not an abuse of
discretion.
davis has an extensive criminal record that dates back to
1975. He has numerous convictions as an adult, most of which
involve alcohol. davis has been incarcerated for three of those
convictions. He was imprisoned for two separate 30-day sen-
tences in Nebraska for driving under the influence and was
imprisoned for 18 months in south dakota for his third driving
under the influence offense in that state.
davis was in his early thirties at the time he began sexually
assaulting the victim when she was 4 years old. He continued
to assault her until she was 12 years old. although the victim
did not suffer permanent physical injury, she no doubt has
endured and will continue to endure psychological trauma
throughout her life. While reports indicate that davis is at low
risk for recidivism, the district court correctly concluded that
any sentence less than incarceration would promote disrespect
for the law and depreciate the seriousness of davis’ acts.
vi. CONCLUsiON
We conclude that the sentence imposed by the trial court
for the first degree sexual assault conviction is not an abuse
of discretion. We also conclude that davis’ sentence for sexual
assault of a child, as modified, is not an abuse of discretion.
A ffirmed AS modified.
26 Davis, supra note 1, 276 Neb. at 763, 757 N.W.2d at 374-75.
27 State v. Riley, 242 Neb. 887, 497 N.W.2d 23 (1993).
170 	277 NeBRaska RePORts