State v. Alfredson

State of NebraSka , appellee , v.
JoShua G. alfredSoN, appellaNt.
804 N.W.2d 153
Filed October 7, 2011. 	No. S-10-295.
1. Courts: Trial: Sentences: Juries: Appeal and Error. Where a court errs in fail-
ing to require the jury to decide a factual question pertaining only to the enhance-
ment of the sentence, not to the determination of guilt, the appropriate harmless
error standard is whether the record demonstrates beyond a reasonable doubt
that a rational jury would have found the existence of the sentencing enhance-
ment factor.
2. Convicted Sex Offender: Sentences: Juries. Because lifetime community super-
vision under Neb. Rev. Stat. § 83-174.03 (Reissue 2008) is an additional form of
punishment, a jury, rather than a trial court, must make a specific finding con-
cerning the facts necessary to establish an aggravated offense where such facts
are not specifically included in the elements of the offense of which the defendant
is convicted.
Petition for further review from the Court of Appeals,
INbody, Chief Judge, and I rwIN and Moore, Judges, on appeal
thereto from the District Court for Lancaster County, kareN b.
flowerS, Judge. Judgment of Court of Appeals affirmed in part
and in part reversed, and cause remanded with directions.
James R. Mowbray and Robert W. Kortus, of Nebraska
Commission on Public Advocacy, for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
heavIcaN, 	c.J., 	wrIGht, 	coNNolly, 	G errard, 	StephaN,
MccorMack, and MIller-lerMaN, JJ.
MccorMack, J.
NATURE OF CASE
Joshua G. Alfredson was convicted by a jury of first degree
sexual assault and second degree false imprisonment. The trial
court subsequently determined that an “aggravated offense”
had been established, and it sentenced Alfredson to 15 to
20 years’ imprisonment for first degree sexual assault and 1
year’s imprisonment for second degree false imprisonment, to
run concurrently. The Nebraska Court of Appeals affirmed his
476 	282 NEBRASKA REPORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:43 AM CST

convictions and sentences on direct appeal.1 Alfredson filed a
petition for further review, which we granted in part for the
limited purpose of reviewing whether the trial court’s error, as
found by the Court of Appeals, was harmless error. The error
as found by the Court of Appeals was that the trial court, rather
than the jury, made the determination that Alfredson had com-
mitted an aggravated offense, subjecting him to lifetime com-
munity supervision. For the following reasons, we determine
that the trial court’s error was not harmless and reverse in part
the decision of the Court of Appeals.
BACKGROUND
Alfredson was charged by information with first degree
sexual assault, a Class II felony,2 and first degree false impris-
onment, a Class IIIA felony.3 The charges arose out of an
incident that took place on April 5, 2009, in which Alfredson
initially contacted the victim, with whom he had had a previ-
ous sexual relationship, for a ride home. The victim drove to
the establishment where Alfredson had been drinking with
some friends, picked him up, and drove him to another loca-
tion where his car was parked. The events which followed
were disputed at trial.
The victim testified that she suggested to Alfredson that he
return to her house to “sleep it off,” because she thought he
had had too much to drink and should not drive himself home.
The victim explained that Alfredson smelled like alcohol and
was stumbling, slurring his words, and talking about hurting
or killing himself. The victim testified that Alfredson was
angry and wanted to drive himself home. The victim followed
him to his apartment and asked Alfredson if she could come
up to his apartment with him because she was worried about
his well-being.
The victim testified that, once inside the apartment, Alfredson
continued to drink over the next few hours, while the two
1 State v. Alfredson, No. A-10-295, 2011 WL 1378603 (Neb. App. Apr. 12,
2011) (selected for posting to court Web site).
2 See Neb. Rev. Stat. § 28-319 (Reissue 2008).
3 See Neb. Rev. Stat. § 28-314 (Reissue 2008).
STATE v. ALFREDSON 	477
Cite as 282 Neb. 476

talked. Alfredson became increasingly angry. He had ingested
cocaine, he needed help finding the bathroom, and he uri-
nated on the floor and in the shower. The victim testified that
she attempted to go home and to take the prescription bottle
that Alfredson had told her contained powder cocaine, but
that Alfredson would not let her leave until she returned the
cocaine. The victim attempted to leave, but Alfredson took her
car keys and blocked the front door of the apartment.
The victim testified that a struggle ensued and that Alfredson
tackled her, pushed her face into the carpet, threatened to break
her arm and her neck, and threatened to kill her and her fam-
ily and friends. After several minutes, Alfredson got off of the
victim and went into his bedroom. The victim testified that she
followed Alfredson and that he told her that if she wanted her
keys, she would have to get into bed with him. The victim then
leaned over the bed to find the keys, and Alfredson grabbed
her, pinned her down, and pushed himself on top of her. The
victim testified that Alfredson said he was getting “horny” but
that she told him they were not “going to have sex like this.”
The victim explained that she told Alfredson “no” several times
but that Alfredson grabbed her breast and threatened to “rip it
right off,” pulled her pants and underwear down, and initiated
sexual intercourse. After several minutes, Alfredson got off the
victim and went into the living room.
The victim testified that she dressed and walked into the
living room, where Alfredson blocked the door and refused to
let her leave. Alfredson then came toward her and threw her on
the couch, but she rolled off onto the living room floor. He then
got on top of her and again pulled her pants down and bit her
on the neck, cheek, and ear before again initiating sexual inter-
course. The victim testified that she continued to tell Alfredson
“no.” When Alfredson got up, the victim dressed and told
Alfredson that she was leaving. Alfredson blocked the door,
urinated on the floor, and told her that she was going to bed
with him and was not going to leave. Alfredson then grabbed
her arm, led her to the bedroom, and told her to go to sleep.
Once Alfredson fell asleep, the victim sent a text message to
a friend, but she testified that she did not call anyone else or
the police because she was scared. The victim testified that she
478 	282 NEBRASKA REPORTS

fell asleep and awoke around 7 a.m., when she got dressed,
found her keys and cellular telephone, took the prescription pill
bottle she believed contained cocaine, and left the apartment.
The victim then contacted her friend and the human resources
facilitator with her employer, and the facilitator then drove her,
accompanied by her friend, to a hospital.
At the hospital, the victim underwent a sexual assault exami-
nation. The sexual assault nurse examiner testified that the
victim had contusions on her right arm, left breast, and lower
left jaw, in addition to an imprint of her braces on the inside of
her lower lip and an impression on the inside of her cheek. The
examination also revealed a contusion and multiple tears on the
external genitalia caused by acute blunt force trauma.
The victim testified that she flushed the white powder con-
tained in the prescription pill bottle and later gave the bottle
to the police. The Nebraska State Patrol tested the bottle, but
could not confirm or deny a presence of cocaine.
Alfredson testified that he had engaged in sexual intercourse
with the victim, but it was consensual, and that he did not pre-
vent the victim from leaving his apartment. Alfredson explained
that the two engaged in sexual intercourse in the living room of
his apartment and that the victim left in the early morning. He
also stated that the prescription bottle contained an antidepres-
sant prescription and that it did not contain cocaine.
After hearing the evidence presented, the jury convicted
Alfredson of first degree sexual assault and second degree
false imprisonment. At sentencing, the trial court determined
that Alfredson was subject to the lifetime registration require-
ments of Nebraska’s Sex Offender Registration Act.4 The trial
court also determined that Alfredson had committed an “aggra-
vated offense” which further subjected him to lifetime com-
munity supervision pursuant to Neb. Rev. Stat. § 83-174.03
(Reissue 2008).
Alfredson directly appealed his convictions and sentences
to the Court of Appeals. On appeal, Alfredson assigned that
4 Neb. Rev. Stat. § 29-4001 et seq. (Reissue 2008).
STATE v. ALFREDSON 	479
Cite as 282 Neb. 476

(1) the trial court erred in denying his Batson5 challenge made
during jury selection; (2) the Sex Offender Registration Act
is unconstitutional in that the lifetime community supervision
requirements constitute cruel and unusual punishment; (3) the
trial court erred by failing to submit to the jury the “aggravated
offense” determination, pursuant to § 83-174.03; (4) the sen-
tences imposed were excessive; and (5) he received ineffective
assistance of counsel.
The Court of Appeals found merit in Alfredson’s third
assignment of error and determined that Alfredson was entitled
to a jury determination regarding whether the offense included
the use of force or the threat of serious violence pursuant to
§ 83-174.03. However, the Court of Appeals determined that
the trial court’s error was harmless. The Court of Appeals
noted that the State presented evidence that the victim was
threatened and physically and sexually assaulted. Based upon
its review of the record, the Court of Appeals concluded that
any rational jury which convicted Alfredson of first degree
sexual assault would have also concluded that it was committed
through the use of force or the threat of serious violence. The
Court of Appeals found Alfredson’s remaining assignments of
error to be without merit and affirmed Alfredson’s convictions
and sentences.
Alfredson filed a petition for further review, which we
granted in part for the limited purpose of reviewing whether
the trial court’s error in failing to require the jury to decide a
factual question pertaining to the enhancement of the sentence
was harmless error.
ASSIGNMENT OF ERROR
Alfredson assigns that the Court of Appeals erred in failing
to find that the trial court erroneously and unconstitutionally
denied Alfredson a jury determination of the elements necessary
to make an aggravated offense finding, subjecting Alfredson to
lifetime community supervision pursuant to § 83-174.03.
5 See Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986).
480 	282 NEBRASKA REPORTS

STANDARD OF REVIEW
[1] Where a court errs in failing to require the jury to decide
a factual question pertaining only to the enhancement of the
sentence, not the determination of guilt, the appropriate harm-
less error standard is whether the record demonstrates beyond
a reasonable doubt that a rational jury would have found the
existence of the sentencing enhancement factor.6
ANALYSIS
At 	the 	sentencing 	hearing, 	the 	trial 	court 	found 	that
Alfredson’s sexual assault conviction constituted an aggravated
offense and that Alfredson is therefore subject to lifetime com-
munity supervision pursuant to § 83-174.03. Alfredson con-
tends that the trial court erred in making this determination. He
asserts that the factual finding of an aggravated offense must be
made by a jury, rather than by the court. The Court of Appeals
determined that the trial court erred in failing to require the
jury to decide the issue, and we agree.
Section 83-174.03 details which sex offenders are subject
to lifetime community supervision. This section was revised
by the Legislature, operative January 1, 2010. However, at the
time of Alfredson’s offense, § 83-174.03(1) read:
Any individual who, on or after July 14, 2006, . . . is
convicted of or completes a term of incarceration for an
aggravated offense as defined in section 29-4005, shall,
upon completion of his or her term of incarceration or
release from civil commitment, be supervised in the com-
munity by the Office of Parole Administration for the
remainder of his or her life.
At the time of Alfredson’s offense, § 29-4005(4)(a) defined
aggravated offense, in relevant part, 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.”7
6 State v. Payan, 277 Neb. 663, 765 N.W.2d 192 (2009), cert. denied 559
U.S. 981, 130 S. Ct. 1708, 176 L. Ed. 2d 195 (2010).
7 See, currently, § 29-4001.01(1) (Cum. Supp. 2010).
STATE v. ALFREDSON 	481
Cite as 282 Neb. 476

[2] In State v. Payan,8 we determined that the imposition of
lifetime community supervision pursuant to § 83-174.03 is akin
to parole and is, as a result, an additional form of punishment
for certain sex offenders. Because lifetime community super-
vision is an additional form of punishment, a jury, rather than
a trial court, must make a specific finding concerning the facts
necessary to establish an “aggravated offense” where such facts
are not specifically included in the elements of the offense of
which the defendant is convicted.9
Here, Alfredson was convicted of first degree sexual assault
pursuant to § 28-319. Section 28-319 provides in relevant part:
“Any person who subjects another person to sexual penetration
. . . without the consent of the victim . . . is guilty of sexual
assault in the first degree.” While penetration is a fact specifi-
cally included as an element of first degree sexual assault, “the
use of force or the threat of serious violence” is not a fact
specifically included as an element of the offense. Pursuant to
Payan, Alfredson was entitled to a jury determination regard-
ing whether the offense included the use of force or the threat
of serious violence. Because the jury did not make such a
determination, the Court of Appeals correctly determined that
the trial court erred in finding that Alfredson committed an
aggravated offense.
On further review, Alfredson asserts the Court of Appeals
erred in determining that the trial court’s error was harmless.
The Court of Appeals correctly noted that although the trial
court erred in finding that Alfredson committed an aggravated
offense, such error may be harmless.10 The appropriate harm-
less error standard in this circumstance is whether the record
demonstrates beyond a reasonable doubt that a rational jury
would have found the existence of the sentencing enhance-
ment factor.11
8 See State v. Payan, supra note 6.
9 See id.
10 See id.
11 Id.
482 	282 NEBRASKA REPORTS

In determining the trial court’s error was harmless, the Court
of Appeals stated:
At trial, the jury heard two very different material ver-
sions of what transpired in those early morning hours of
April 5, 2009. The State presented evidence that the vic-
tim was threatened and physically and sexually assaulted
by Alfredson. In Alfredson’s defense, he claimed that he
and the victim had consensual sexual intercourse. Based
upon our review of this record, we find that any rational
jury which convicted Alfredson of first degree sexual
assault would have also concluded that it was committed
through the use of force or the threat of serious violence.
Therefore, we find that the district court’s error of making
the aggravated offense finding instead of submitting it to
the jury was harmless.12
In Payan, we concluded that the trial court committed harm-
less error in finding that the defendant committed an aggravated
offense. There, the jury heard two different material versions of
the events. In the State’s evidence, the victim and a witness
testified that the victim was sexually assaulted with a knife. In
his defense, the defendant and his supporting witness claimed
that no assault took place whatsoever. We found there was no
evidence that if the assault occurred, it was done without vio-
lence or the threat thereof. Accordingly, we held:
On this record, any rational jury which convicted [the
defendant] of the sexual assault would have also con-
cluded that it was committed through the use of force or
the threat of serious violence. Accordingly, we conclude
that the making of this finding by the trial judge instead
of the jury was harmless error.13
In this case, the record reflects two versions of the events
which were presented to the jury. The State argues that the jury’s
finding of guilt establishes that the jury rejected Alfredson’s
version of the events and accepted the victim’s version of the
events. However, the jury convicted Alfredson of first degree
12 State v. Alfredson, supra note 1, 2011 WL 1378603 at *7.
13 State v. Payan, supra note 6, 277 Neb. at 677, 765 N.W.2d at 204-05.
STATE v. ALFREDSON 	483
Cite as 282 Neb. 476

sexual assault, but acquitted Alfredson on the first degree false
imprisonment charge and convicted him of second degree
false imprisonment.
Section 28-314(1) states:
A person commits false imprisonment in the first degree
if he or she knowingly restrains or abducts another per-
son (a) under terrorizing circumstances or under circum-
stances which expose the person to the risk of serious
bodily injury; or (b) with intent to hold him or her in a
condition of involuntary servitude.
Neb. Rev. Stat. § 28-315(1) (Reissue 2008) provides: “A person
commits false imprisonment in the second degree if he know-
ingly restrains another person without legal authority.”
Alfredson argues that because the jury acquitted on the
first degree false imprisonment charge, the record does not
demonstrate that a rational jury would have found the use of
force or the threat of serious violence required to establish an
aggravated offense. Rather, it was possible that the jury could
have convicted on first degree sexual assault based on a lack of
consent without force or threat of serious violence. Alfredson
contends that the jury’s acquittal on this charge establishes a
reasonable doubt to this fact.
The record reflects the victim’s testimony that penetration
occurred, although she verbally expressed a lack of consent,
and that it occurred through the use of force and the threat of
serious violence. Alfredson testified that the intercourse was
consensual. The victim also testified that she was restrained
physically and through verbal threats. The record indicates that
the jury rejected the assertion that the victim was restrained
under terrorizing circumstances or under circumstances which
exposed the victim to the risk of serious bodily injury. But
the jury’s conviction on first degree sexual assault did not
require a determination of whether the offense was committed
with force or the threat of violence. Accordingly, the jury’s
findings do not support a conclusion that the testimony of
the victim was wholly accepted while Alfredson’s testimony
was rejected.
Based on the evidence contained in the record and the jury’s
findings, we cannot say beyond a reasonable doubt that the
484 	282 NEBRASKA REPORTS

jury would have found that Alfredson used force or the threat
of serious violence in compelling the victim to engage in sex-
ual intercourse with him. First degree sexual assault involves
sexual penetration without the consent of the victim. The jury
was instructed that
“[w]ithout consent” means (a) the victim was compelled
to submit due to the use of force or the threat of force or
coercion, or (b) the victim expressed a lack of consent
through words, or (c) the victim expressed a lack of con-
sent through conduct, or (d) the consent, if any was actu-
ally given, was the result of the actor’s deception as to the
identity of the actor or the nature or purpose of the act on
the part of the actor.
It is not clear whether the jury found that Alfredson commit-
ted first degree sexual assault because he compelled the victim
to submit through force or the threat of force or whether the
jury found that Alfredson committed first degree sexual assault
because the victim expressed a lack of consent through her
words or actions. Further, the jury’s acquittal of the first degree
false imprisonment charge does not support the State’s asser-
tion that the jury accepted a version of the facts necessary to
establish the aggravated offense finding.
Because we cannot say beyond a reasonable doubt that the
jury would have found that Alfredson used force or the threat
of serious violence in compelling the victim to engage in
sexual intercourse with him, we cannot say that the trial court’s
error in making the determination that Alfredson committed
an aggravated offense was harmless. Accordingly, we reverse,
and remand to the Court of Appeals with directions to remand
the cause for an evidentiary hearing for a jury to determine
whether Alfredson used force or the threat of serious violence
in sexually assaulting the victim and, thus, whether Alfredson
committed an aggravated offense and is subject to lifetime
community supervision.
CONCLUSION
We find the trial court erred in determining that Alfredson
committed an aggravated offense and is, as a result, subject to
lifetime community supervision. We affirm the convictions and
STATE v. ALFREDSON 	485
Cite as 282 Neb. 476

the sentences. We reverse, and remand to the Court of Appeals
with directions to reverse and remand the cause to the trial
court with directions to conduct an evidentiary hearing so that
the jury may make a finding regarding whether Alfredson’s
sexual assault conviction was an aggravated offense and, thus,
whether he is subject to lifetime community supervision.
In all other respects, the decision of the Court of Appeals
is affirmed.
affIrMed IN part, aNd IN part reverSed
aNd reMaNded wIth dIrectIoNS.
laverN louIS G oldeN, appellaNt aNd croSS-appellee ,
v. uNIoN pacIfIc raIlroad coMpaNy, a delaware
corporatIoN, appellee aNd croSS-appellaNt.
804 N.W.2d 31
Filed October 7, 2011. 	No. S-10-596.
1. Summary Judgment. A court should grant summary judgment when the plead-
ings and evidence admitted show that no genuine issue exists regarding any mate-
rial fact or the ultimate inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Federal Acts: Railroads: Evidence. A Federal Employers’ Liability Act plaintiff
bears the burden of presenting evidence from which a jury could conclude the
existence of a probable or likely causal relationship, as opposed to a merely pos-
sible one.
4. Courts: Expert Witnesses. When a court is faced with a decision regarding the
admissibility of expert opinion evidence, the trial judge must assess whether the
scientific evidence presented provides a valid scientific connection to the perti-
nent inquiry as a precondition to admissibility.
Appeal 	from 	the 	District 	Court 	for 	Lincoln 	County:
JohN p. Murphy, Judge. Reversed and remanded for further
proceedings.
Richard J. Dinsmore and Jayson D. Nelson, of Law Offices
of Richard J. Dinsmore, P.C., for appellant.
486 	282 NEBRASKA REPORTS