State v. Hamilton

he believed D.V. was at risk to reoffend if he did not receive
inpatient treatment.
D.V. did not take part in any mental health treatment while
incarcerated. He did not agree to be screened for the inpatient
sex offender program available through the Department of
Correctional Services. There was clear and convincing evi-
dence to support the Board’s finding that the least restrictive
alternative for D.V. is inpatient treatment.
CONCLUSION
In In re Interest of J.R., ante p. 362, 762 N.W.2d 305 (2009),
we concluded that SOCA is not an ex post facto law and does
not violate either double jeopardy or equal protection. We
conclude that the Board’s finding that D.V. is a dangerous sex
offender is supported by clear and convincing evidence. We
also find that inpatient treatment is the least restrictive alterna-
tive for D.V.
The district court affirmed the decision of the Board. In
reviewing a district court’s judgment, an appellate court will
affirm the judgment unless it finds, as a matter of law, that
clear and convincing evidence does not support the judgment.
In re Interest of O.S., ante p. 577, 763 N.W.2d 723 (2009). The
district court’s judgment was supported by clear and convinc-
ing evidence, and it is affirmed.
A ffirmed.
STATe v. HAmILTON 	593
Cite as 277 Neb. 593
StAte of NebrASkA, Appellee , v.
JoShuA d. hAmiltoN, AppellANt.
763 N.W.2d 731
Filed April 10, 2009. 	No. S-08-506.
1. Statutes: Judgments: Appeal and Error. Statutory interpretation presents a
question of law. When reviewing questions of law, an appellate court has an obli-
gation to resolve the questions independently of the conclusion reached by the
trial court.
2. 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

3. 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.
4. Statutes: Appeal and Error. When construing a statute, an appellate court
must look to the statute’s purpose and give to the statute a reasonable construc-
tion which best achieves that purpose, rather than a construction which would
defeat it.
5. ____: ____. If possible, an appellate court will try to avoid a statutory construc-
tion which would lead to an absurd result.
6. Statutes. Statutes relating to the same subject matter will be construed so as to
maintain a sensible and consistent scheme, giving effect to every provision.
7. Sentences. 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 Lancaster County: pAul
d. merritt, Jr ., Judge. Affirmed.
Dennis R. Keefe, Lancaster County Public Defender, John
C. Jorgensen, and Ti’era m. Johnson, Senior Certified Law
Student, for appellant.
Jon 	Bruning, 	Attorney 	General, 	and 	Nathan 	A. 	Liss
for appellee.
heAvicAN, c.J., Wright, coNNolly, StephAN, mccormAck ,
and miller-lermAN, JJ.
StephAN, J.
Pursuant to a plea agreement resulting in the dismissal of
more serious charges and an agreement by the State not to file
additional charges, Joshua D. Hamilton entered pleas of no
contest to one count of third degree sexual assault of a child, a
Class IIIA felony,1 and one count of attempted first degree sex-
ual assault, a Class III felony.2 The district court for Lancaster
County accepted the pleas and convicted Hamilton of the two
offenses. At a sentencing hearing, the court determined that
Hamilton had committed an “aggravated offense” as defined
in the Sex Offender Registration Act (SORA)3 and would
1 See Neb. Rev. Stat. § 28-320.01 (Reissue 2008).
2 See Neb. Rev. Stat. §§ 28-201(1)(b) and 28-319(2) (Reissue 2008).
3 Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2008).
594 	277 NeBRASKA RePORTS

be subject to the lifetime registration requirement of SORA
and the lifetime community supervision requirement of Neb.
Rev. Stat. § 83-174.03 (Reissue 2008). The court sentenced
Hamilton to 3 to 5 years’ imprisonment for the offense of third
degree sexual assault of a child and 10 to 15 years’ imprison-
ment for the offense of attempted first degree sexual assault,
with the sentences to run consecutively and credit given for
time served. Hamilton perfected this timely appeal.
FACTS
In 2007, two children under the age of 12 reported that they
had been sexually assaulted by Hamilton. Hamilton’s biologi-
cal daughter reported that Hamilton touched her with his hands
and penis on top of and under her clothing and that he pene-
trated her vagina with his penis. The daughter of a woman to
whom Hamilton was married in 2007 reported that Hamilton
had penetrated her vagina with his finger and penis on numer-
ous occasions over a 3-year period.
When interviewed regarding these reports, Hamilton told
police that he used drugs and alcohol while caring for the
children and could not recall assaulting either one of them.
Hamilton told police it was possible that he had assaulted the
girls during a drug- or alcohol-induced blackout. He also stated
that he believed the girls were telling the truth.
Hamilton was originally charged with two counts of third
degree sexual assault of a child and one count of first degree
sexual assault of a child. He eventually entered into the plea
agreement described above, resulting in his conviction on one
count of third degree sexual assault of a child and one count
of attempted first degree sexual assault. The factual basis pro-
vided by the prosecutor at the plea hearing included the reports
of the minor victims that Hamilton had sexually penetrated
them on several occasions. The court offered Hamilton the
opportunity to comment on the facts as recited by the prosecu-
tor, but Hamilton declined.
At the sentencing hearing, Hamilton’s counsel argued that
because sexual penetration was not an element of either
of the offenses for which Hamilton was convicted, neither
crime could be considered an “aggravated offense” under
STATe v. HAmILTON 	595
Cite as 277 Neb. 593

SORA. SORA defines “aggravated offense” as “any reg-
istrable offense under section 29-4003 which involves the
penetration of (i) a victim age twelve years or more through
the use of force or the threat of serious violence or (ii) a
victim under the age of twelve years.”4 In support of this
argument, Hamilton’s counsel relied on State v. Mastne,5 a
2006 opinion in which the Nebraska Court of Appeals held
that existence of an “aggravated offense” under SORA must
be determined only from the statutory elements of the offense
for which a defendant is convicted and that a judge may not
make factual findings or determinations which go beyond
such elements. The prosecutor argued that the court could
make factual determinations regarding the existence of an
aggravated offense based upon the uncontested factual bases
for the pleas. Without discussing Mastne, the court made a
determination that each of Hamilton’s victims was under the
age of 12 and that the facts warranted treating both crimes as
aggravated offenses for purposes of SORA. The court notified
Hamilton that he would be subject to a lifetime registration
requirement under SORA and a lifetime community supervi-
sion requirement under § 83-174.03. The court then imposed
the sentences described above. Hamilton perfected this timely
appeal, and we granted the State’s petition to bypass and
motion for oral argument.
ASSIGNmeNTS OF eRROR
Hamilton assigns, restated, that the district court erred (1)
in determining that his offenses were aggravated offenses for
purposes of SORA and lifetime community supervision and
(2) by imposing excessive sentences that constituted an abuse
of discretion.
STANDARD OF ReVIeW
[1] Statutory interpretation presents a question of law. When
reviewing questions of law, an appellate court has an obligation
4 § 29-4005(4)(a).
5 State v. Mastne, 15 Neb. App. 280, 725 N.W.2d 862 (2006).
596 	277 NeBRASKA RePORTS

to resolve the questions independently of the conclusion reached
by the trial court.6
[2] A sentence imposed within statutory limits will not
be disturbed on appeal absent an abuse of discretion by the
trial court.7
ANALYSIS
AggrAvAted offeNSe for purpoSeS of SorA
ANd lifetime pArole SuperviSioN
[3] SORA is a civil regulatory scheme intended by the
Legislature to protect the public from the danger posed by
sex offenders.8 SORA applies to any person who pleads guilty
or is found guilty of certain offenses listed in § 29-4003(1).
Included in that list are sexual assault of a child in the third
degree9; first degree sexual assault of a child10; and attempt,
solicitation, or conspiracy to commit an offense listed in
§ 29-4003(1)(a).11 SORA includes a general requirement that
persons convicted of these offenses must register with the sher-
iff of the county in which he or she resides12 during any period
of supervised release, probation, or parole and “for a period
of ten years after the date of discharge from probation, parole,
or supervised release or release from incarceration, whichever
date is most recent.”13 Certain sex offenders, including those
who commit an aggravated offense, are subject to a lifetime
registration requirement.
The 	lifetime 	community 	supervision 	requirement 	of
§ 83-174.03 incorporates and mirrors the lifetime registration
6 See Steffen v. Progressive Northern Ins. Co., 276 Neb. 378, 754 N.W.2d
730 (2008).
7 State v. Kinkennon, 275 Neb. 570, 747 N.W.2d 437 (2008).
8 See, Slansky v. Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335
(2004); State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).
9 § 29-4003(1)(a)(iv).
10 § 29-4003(1)(a)(v).
11 § 29-4003(1)(a)(xiv).
12 § 29-4004(1).
13 § 29-4005(1).
STATe v. HAmILTON 	597
Cite as 277 Neb. 593

requirement of SORA.14 A defendant who commits an aggra-
vated offense as defined by SORA “shall, upon completion of
his or her term of incarceration or release from civil commit-
ment, be supervised in the community by the Office of Parole
Administration for the remainder of his or her life.”15
SORA defines an aggravated offense as “any registrable
offense under section 29-4003 which involves the penetration
of (i) a victim age twelve years or more through the use of
force or the threat of serious violence or (ii) a victim under the
age of twelve years.”16 The question presented in this appeal is
whether, as Hamilton contends, a court may look only to the
statutory elements of the offense in making the “aggravated
offense” determination or whether, as the State argues, a court
may consider facts in the record regarding the manner in which
the offense was committed.
In Mastne, the Court of Appeals held that only the elements
of the offense could be considered in determining whether it
was an “aggravated offense” under SORA. In reaching this
conclusion, the court compared the language of § 29-4005(2)
with that of § 29-4005(3)(a), which subjects a sex offender
determined to be a “sexually violent predator” to, inter alia, a
lifetime registration requirement. The statute provides in rele-
vant part:
(2) A person required to register under section 29-4003
shall be required to register under the act for the rest of his
or her life if the offense creating the obligation to register
is an aggravated offense, if the person has a prior convic-
tion for a registrable offense, or if the person is required
to register as a sex offender for the rest of his or her life
under the laws of another state, territory, commonwealth,
or other jurisdiction of the United States. A sentencing
court shall make that fact part of the sentencing order.
(3)(a) When sentencing a person for a registrable offense
under section 29-4003, a court may also determine if the
14 State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008).
15 § 83-174.03(1).
16 § 29-4005(4)(a).
598 	277 NeBRASKA RePORTS

person is a sexually violent predator. When making its
determination the court shall consider information con-
tained in the presentence report and the recommendation
of experts in the behavior and treatment of sex offend-
ers, victims’ rights advocates, and representatives of law
enforcement agencies.17
The Court of Appeals found the difference in the language
used in § 29-4005(2) and (3)(a) to be significant. It reasoned
that the language used by the Legislature in § 29-4005(3)(a)
made it clear that the court was to make a factual determina-
tion of whether an offender was a “sexually violent predator.”
The Mastne court reasoned that by omitting language similar
to the second sentence of § 29-4005(3)(a) from § 29-4005(2),
“the Legislature made it equally clear that it did not intend
for the sentencing court to make a factual finding or deter-
mination regarding whether or not an offense is ‘an aggra-
vated offense.’”18
We do not find the meaning of § 29-4005(2) to be quite
so clear. The second sentence of that subsection refers to the
existence of an aggravated offense or other grounds for life-
time registration as a “fact” which is to be made a part of the
sentencing order. This suggests that some factfinding is neces-
sary, and we have stated that the statute “require[s] the court,
as part of the sentence, to determine if the defendant commit-
ted an aggravated offense.”19 Had the Legislature intended that
the “fact” of penetration for purposes of an aggravated offense
determination should be derived solely from the elements of
the offense, it could have used specific language to that effect.
For example, the Legislature has enacted a statute provid-
ing that an offender may be required to submit to a human
immunodeficiency virus antibody or antigen test if he or she
has been convicted of certain specified offenses “or any other
offense under Nebraska law when sexual contact or sexual
17 § 29-4005(2) and (3)(a) (emphasis supplied).
18 State v. Mastne, supra note 5, 15 Neb. App. at 290-91, 725 N.W.2d
at 870.
19 State v. Worm, supra note 8, 268 Neb. at 80, 680 N.W.2d at 158.
STATe v. HAmILTON 	599
Cite as 277 Neb. 593

penetration is an element of the offense.”20 We conclude that
§ 29-4005(2) is ambiguous as to whether the sentencing court
may make a factual finding in determining that the offense
committed by a particular defendant under § 29-4005(4)(a)
“involves the penetration of . . . a victim under the age of
twelve years” for purposes of determining the existence of an
aggravated offense under SORA. Accordingly, the statute is
open to construction.
[4-6] When construing a statute, an appellate court must
look to the statute’s purpose and give to the statute a reason-
able construction which best achieves that purpose, rather than
a construction which would defeat it.21 If possible, an appellate
court will try to avoid a statutory construction which would
lead to an absurd result.22 Statutes relating to the same subject
matter will be construed so as to maintain a sensible and con-
sistent scheme, giving effect to every provision.23
In enacting SORA, the Legislature made findings that “sex
offenders present a high risk to commit repeat offenses” and
that the “efforts of law enforcement agencies to protect their
communities, conduct investigations, and quickly apprehend
sex offenders are impaired by the lack of available informa-
tion about individuals who have pleaded guilty to or have been
found guilty of sex offenses and who live, work, or attend
school in their jurisdiction.”24 The Legislature further found
that “state policy should assist efforts of local law enforce-
ment agencies to protect their communities” by requiring reg-
istration of sex offenders.25 By imposing a 10-year registration
20 Neb. Rev. Stat. § 29-2290(1) (Reissue 2008).
21 Gilbert & Martha Hitchcock Found. v. Kountze, 272 Neb. 251, 720 N.W.2d
31 (2006); In re Petition of SID No. 1, 270 Neb. 856, 708 N.W.2d 809
(2006).
22 Livengood v. Nebraska State Patrol Ret. Sys., 273 Neb. 247, 729 N.W.2d
55 (2007); City of Elkhorn v. City of Omaha, 272 Neb. 867, 725 N.W.2d
792 (2007).
23 In re Estate of Reed, 271 Neb. 653, 715 N.W.2d 496 (2006); Curran v.
Buser, 271 Neb. 332, 711 N.W.2d 562 (2006).
24 § 29-4002.
25 Id.
600 	277 NeBRASKA RePORTS

requirement for some sex offenders but a lifetime registration
requirement for others, including those who commit aggravated
offenses, the Legislature clearly intended to provide enhanced
assistance to law enforcement and protection to the public with
respect to sex offenders who commit aggravated offenses.26
That intention would be frustrated if a person who had in fact
sexually penetrated a victim under the age of 12 years would
be exempted from the lifetime registration requirement simply
by pleading to a lesser offense which does not involve the ele-
ment of penetration.
We agree with the Court of Appeals that § 29-4005(2)
and (3)(a) should be read together, because both relate to a
lifetime registration requirement for certain sex offenders.
However, contrary to the reasoning of Mastne, we discern a
consistency in the two statutory provisions. The use of the
word “fact” in the second sentence of § 29-4005(2) read
in conjunction with the word “also” in the first sentence of
§ 29-4005(3)(a) indicates a legislative intent that there be
a factual determination by the sentencing judge under both
statutory provisions.
Applying the reasoning of Mastne to § 29-4005(2) would,
in our view, lead to an absurd result. Sexual penetration is
an element in only three of the registrable offenses currently
listed in § 29-4003: first degree sexual assault,27 first degree
sexual assault on a child,28 and incest of a minor.29 None of
these include an element of “use of force or the threat of seri-
ous violence,”30 and thus, applying the reasoning of Mastne,
only first degree sexual assault of a child as currently defined
in § 28-319.01 would meet all requirements for an aggra-
vated offense under § 29-4005(4)(a). However, § 28-319.01
was first enacted in 2006.31 Prior to that time, the offense of
26 See § 29-4005(1) and (2).
27 § 28-319.
28 Neb. Rev. Stat. § 28-319.01 (Reissue 2008).
29 Neb. Rev. Stat. § 28-703 (Reissue 2008).
30 See § 29-4005(4)(a).
31 2006 Neb. Laws, L.B. 1199, § 6.
STATe v. HAmILTON 	601
Cite as 277 Neb. 593

sexual assault of a child did not include penetration as an ele-
ment.32 Thus, in 2002, when the Legislature amended SORA
to provide a lifetime registration requirement for those com-
mitting aggravated offenses,33 there were no existing offenses
with elements strictly corresponding to the definition of an
aggravated offense in § 29-4005(4)(a)(ii). This indicates that
the Legislature intended the existence of an aggravated offense
to be determined on the basis of actual facts, not statu-
tory elements.
We therefore conclude that under SORA, a sentencing judge
need not consider only the elements of an offense in determin-
ing whether an aggravated offense as defined in § 29-4005(4)(a)
has been committed. Instead, the court may make this determi-
nation based upon information contained in the record, includ-
ing the factual basis for a plea-based conviction and informa-
tion contained in the presentence report. To the extent that
Mastne holds otherwise, it is disapproved.
In this case, the factual basis received at the time of
Hamilton’s pleas and the information included in the pre-
sentence investigation report support the finding of the district
court that Hamilton committed aggravated offenses which sub-
ject him to the lifetime registration requirement of SORA.
exceSSive SeNteNceS clAim
Hamilton’s sentences fall within the statutory limits for
third degree sexual assault of a child and attempted first
degree sexual assault. Third degree sexual assault of a child
is a Class IIIA felony,34 punishable by a maximum of 5 years’
imprisonment, a $10,000 fine, or both, with a minimum of zero
year’s imprisonment.35 Hamilton was sentenced to a period of
imprisonment of 3 to 5 years for this offense. Attempted first
degree sexual assault is a Class III felony,36 punishable by a
32 See § 28-320.01 (Cum. Supp. 2004) (quoted in State v. Mastne, supra
note 5).
33 2002 Neb. Laws, L.B. 564, § 5. See State v. Worm, supra note 8.
34 § 28-320.01(3).
35 Neb. Rev. Stat. § 28-105 (Reissue 2008).
36 §§ 28-201(1)(b) and 28-319(2).
602 	277 NeBRASKA RePORTS

minimum of 1 year’s imprisonment and a maximum of 20
years’ imprisonment, a $25,000 fine, or both.37 Hamilton was
sentenced to 10 to 15 years’ imprisonment for this offense.
Thus, we review the sentences for abuse of discretion, which
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.38
[7] 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.39 Hamilton argues the trial court abused its discretion by
not giving proper weight and consideration to these factors
when imposing his sentence. He argues that the sentencing
order neglected his individual circumstances and that the
trial court failed to assess the most effective rehabilitation
measure, which Hamilton believes would include drug and
alcohol rehabilitation.
At the time of sentencing, the court stated that “[h]aving
regard for the nature and circumstances of the crimes and
the history, character and condition of [Hamilton], the Court
finds that imprisonment of [Hamilton] is necessary because a
lesser sentence would depreciate the seriousness of his crimes
and promote disrespect for the law.” Hamilton was 29 years
old at the time of sentencing. The presentence investigation
assessed Hamilton at a very high risk to reoffend and noted
that he had substantial and long-running alcohol and drug
abuse problems. Hamilton’s record included juvenile offenses
committed in 1993 and 1995 and numerous adult offenses
committed between 1996 and 2007. While none of the prior
adult offenses were felonies and the district court character-
ized them as “‘[r]elatively minor,’” they indicate a pattern of
unlawful behavior. The district court acknowledged the fact
37 § 28-105.
38 State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008); State v. Reid, 274
Neb. 780, 743 N.W.2d 370 (2008).
39 State v. Davis, supra note 38; State v. Reid, supra note 38; State v.
Iromuanya, 272 Neb. 178, 719 N.W.2d 263 (2006).
STATe v. HAmILTON 	603
Cite as 277 Neb. 593

that Hamilton’s no contest pleas spared his young victims from
having to testify, but it is also true that Hamilton benefited
from the plea agreement.
Taking into consideration all of the relevant factors, we
conclude that the district court did not abuse its discretion in
sentencing Hamilton as it did.
CONCLUSION
For the reasons discussed, we affirm the judgment of the
district court sentencing Hamilton to terms of incarceration
for each of the two offenses for which he was convicted and
imposing the requirements of lifetime registration and commu-
nity supervision.
A ffirmed.
gerrArd, J., participating on briefs.
604 	277 NeBRASKA RePORTS