State v. Norman

72 	285 NEBRASKA REPORTS
CONCLUSION
Accordingly, we reverse the decision of the trial court and
remand the cause for an amended final award consistent with
this opinion.
R eveRsed and Remanded.
state of nebRaska, appellee, v.
C had noRman, appellant.
824 N.W.2d 739
Filed January 18, 2013. 	No. S-12-339.
1. Criminal Law: Convicted Sex Offender: Evidence. A crime that is generally
not a typical sex crime may still require registration under the Sex Offender
Registration Act if the court finds that evidence of sexual penetration or sexual
contact was present in the record.
2. Convicted Sex Offender: Appeal and Error. An appellate court will affirm a
court’s ruling that a defendant must register under the Sex Offender Registration
Act if, viewing the evidence in the light most favorable to the State, any rational
trier of fact could have found with a firm conviction that the crime involved
sexual contact.
3. Evidence: Appeal and Error. As with any sufficiency claim, regardless whether
the evidence is direct, circumstantial, or a combination thereof, an appellate court
does not resolve conflicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence; such matters are for the finder of fact.
Appeal from the District Court for Buffalo County: John p.
ICenogle, Judge. Affirmed.
Michael J. Synek for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
heavICan, C.J., WRIght, C onnolly, stephan, mCC oRmaCk,
mIlleR-leRman, and Cassel, JJ.
C onnolly, J.
NATURE OF CASE
Chad Norman pled no contest to third degree assault. Based
solely on the factual basis for the plea, the district court ordered
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:40 AM CST

STATE v. NORMAN 	73
Cite as 285 Neb. 72
Norman to register under the Sex Offender Registration Act
(SORA).1 On Norman’s first appeal, we reversed, and remanded
for the court to consider all the evidence in the record (rather
than just the factual basis) in making its determination.2 On
remand, the court found by clear and convincing evidence that
Norman’s crime involved sexual contact and again ordered
Norman to register under SORA. Because there is evidence to
support the court’s finding, we affirm.
BACKGROUND
The underlying facts are set out in detail in our earlier opin-
ion, so a summary of those facts is sufficient here. Norman
pled no contest to the third degree assault of an 11-year-old
boy, T.A.W. The State’s factual basis for the plea alleged that
Norman had touched T.A.W.’s penis and that Norman had
threatened T.A.W.’s family if he told anyone about the touch-
ing. After recitation of the factual basis, the court clarified that
the third degree assault charge was “‘based upon the threat,’”3
to which the State agreed. The court accepted Norman’s plea
and found him guilty of third degree assault.4
[1] A crime that is generally not a typical sex crime, such as
third degree assault, may still require registration under SORA
if the court finds that “evidence of sexual penetration or sexual
contact . . . was present in the record.”5 In Norman’s case, reg-
istration under SORA was a possibility, so the court conducted
an expansive sentencing hearing. Both the State and Norman
offered evidence at the hearing, which consisted primarily of
police reports and deposition testimony. Norman also testified
at the sentencing hearing. He denied ever sexually abusing
T.A.W. and stated that there had “‘never been any contact
between me and him.’”6
1 Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2008 & Cum. Supp.
2012).
2 State v. Norman, 282 Neb. 990, 808 N.W.2d 48 (2012).
3 Id. at 993, 808 N.W.2d at 54.
4 See Norman, supra note 2.
5 § 29-4003(1)(b)(i)(B).
6 Norman, supra note 2, 282 Neb. at 995, 808 N.W.2d at 54.

74 	285 NEBRASKA REPORTS
But the court ordered Norman to register under SORA,
implicitly finding that Norman’s crime involved either sexual
penetration or sexual contact. The court seemingly ignored
the evidence offered because the court explicitly noted that it
based its ruling “‘solely’” upon the factual basis for the plea.7
On appeal, we determined that Norman had not received
due process. We noted that due process required both notice
and a meaningful opportunity to be heard. Although Norman
had received notice and the court had held an evidentiary
hearing, we reasoned that Norman had not received a mean-
ingful opportunity to be heard because the court’s ruling was
based solely on the factual basis for the plea.8 We concluded
that “a meaningful hearing requires consideration of evidence
at the hearing as well as the factual basis and the presentence
report.”9 We remanded the cause for the court to consider all
the evidence in the record and determine whether Norman’s
crime involved sexual penetration or sexual contact. We
also concluded that the State had the burden of proving
sexual penetration or sexual contact by clear and convinc-
ing evidence.10
On remand, the court summarized our holding and then
reviewed the evidence in the record. This included the factual
basis, the presentence report, Norman’s testimony, and the
exhibits received at the evidentiary hearing. Those exhibits
were the relevant police reports, the transcript of a juvenile
proceeding involving T.A.W., a letter from Norman’s employer
to the court, and deposition testimony from both T.A.W. and
his mother. The court ultimately found, by clear and convinc-
ing evidence, that Norman’s crime involved sexual contact
with T.A.W.
ASSIGNMENT OF ERROR
Norman alleges, consolidated and restated, that the district
court erred in finding by clear and convincing evidence that
7 See id. at 996, 808 N.W.2d at 56.
8 See Norman, supra note 2.
9 Id. at 1009, 808 N.W.2d at 64.
10 See Norman, supra note 2.

STATE v. NORMAN 	75
Cite as 285 Neb. 72
his crime involved sexual contact and ordering him to register
under SORA.
STANDARD OF REVIEW
As both parties recognize, we have not previously stated our
standard of review for reviewing a district court’s finding of
sexual contact in a SORA registration hearing. But although
this is an issue of first impression, our existing case law pro-
vides some guidance.
State v. Hamilton11 involved an analogous situation. There,
the judge made the factual determination that the defendant’s
crime was an “‘aggravated offense’” under SORA and ordered
the defendant to submit to lifetime registration. We concluded,
as we did in Norman,12 that the judge’s finding could be based
on “information contained in the record, including the factual
basis for a plea-based conviction and information contained in
the presentence report.”13 And although we did not explicitly
state our standard of review for evaluating that finding, we
concluded that the record “support[ed]” the court’s finding.14
So we essentially reviewed the court’s finding as a question of
the sufficiency of the evidence.
In State v. Kofoed,15 we reviewed a court’s finding under
Neb. Rev. Stat. § 27-404(3) (Reissue 2008) that the defendant
had committed an uncharged, extrinsic crime. Just like here,
the State had the burden of proving that fact by clear and con-
vincing evidence. We reviewed the finding as an “insufficient
evidence claim[],”16 and analogized it to that of reviewing the
sufficiency of the evidence to support a conviction. But we
also recognized that the State’s burden in a hearing pursuant to
§ 27-404(3) was proof by clear and convincing evidence rather
than proof beyond a reasonable doubt. So we concluded that
we would affirm the court’s finding “if, viewing the evidence
11 State v. Hamilton, 277 Neb. 593, 594, 763 N.W.2d 731, 733 (2009).
12 See Norman, supra note 2.
13 Hamilton, supra note 11, 277 Neb. at 602, 763 N.W.2d at 738.
14 Id.
15 State v. Kofoed, 283 Neb. 767, 817 N.W.2d 225 (2012).
16 Id. at 771, 817 N.W.2d at 231.

76 	285 NEBRASKA REPORTS
in the light most favorable to the prosecution, any rational trier
of fact could have found with a firm conviction the essential
elements of the uncharged crime.”17
[2,3] These types of factual findings under SORA, as seen
in Hamilton, are reviewed under a sufficiency-of-the-evidence
type of standard of review. And like in Kofoed, here the State
was required to prove the existence of a fact (sexual contact)
by clear and convincing evidence. So we conclude that a
similar standard of review should apply to a court’s finding of
sexual contact in a SORA registration hearing. We hold that we
will affirm a court’s ruling that a defendant must register under
SORA if, viewing the evidence in the light most favorable to
the State, any rational trier of fact could have found with a
firm conviction that the crime involved sexual contact. And, as
with any sufficiency claim, regardless “whether the evidence
is direct, circumstantial, or a combination thereof . . . we do
not resolve conflicts in the evidence, pass on the credibility of
witnesses, or reweigh the evidence; such matters are for the
finder of fact.”18
ANALYSIS
Norman argues that the State failed to meet its burden to
prove sexual contact by clear and convincing evidence and that
the court’s reasoning in support of its finding was unpersua-
sive. Although this is a close case, our standard of review is a
deferential one, and there is evidence in the record to support
the court’s finding.
Neb. Rev. Stat. § 28-318 (Reissue 2008) defines the term
“sexual contact” in part as follows:
(5) Sexual contact means the intentional touching of
the victim’s sexual or intimate parts or the intentional
touching of the victim’s clothing covering the immedi-
ate area of the victim’s sexual or intimate parts. Sexual
contact shall also mean the touching 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
17 Id.
18 Id.

STATE v. NORMAN 	77
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when such touching is intentionally 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.
In the court’s order following remand, it summarized
the evidence, which included the factual basis, the presen-
tence report, the police reports, deposition testimony, and
Norman’s testimony. The record showed that T.A.W. alleged
that Norman had touched T.A.W.’s penis. Although T.A.W.
never appeared in person before the court, the court con-
cluded that T.A.W. had not been coached and noted that
T.A.W. had “essentially testified consistently and without
substantial or meaningful conflict” throughout his “prolonged
deposition.” And the court reasoned that the evidence of sex-
ual encounters between T.A.W. and other children was “not
inconsistent with a child being abused.” The court concluded
that the State had met its burden and ordered Norman to reg-
ister under SORA.
Norman obviously takes issue with this finding. Norman
argues that the evidence was contradictory and insufficient
to find that Norman’s crime involved sexual contact and that
parts of T.A.W.’s story simply did not make sense. Norman
also argues that the court’s reasoning was flawed. Specifically,
Norman argues that the court improperly emphasized T.A.W.’s
sexual encounters with other children and Norman’s show-
ing lingerie catalogs to T.A.W. Norman also claims that the
court gave insufficient weight to the police officer’s initial
suspicion that T.A.W. had been coached and that the court
incorrectly determined that T.A.W.’s deposition testimony was
consistent. Finally, Norman claims that the court incorrectly
relied on the factual basis for the plea and parts of the presen-
tence investigation, and argues that the court could not find
T.A.W. credible because T.A.W. never appeared before the
court in person.
Norman is asking us to reweigh the evidence and find in
his favor. But under our standard of review, we do not resolve
conflicts in the evidence, pass on the credibility of witnesses,
or reweigh the evidence. Instead, the question is only whether
a rational trier of fact, viewing the evidence in a light most

78 	285 NEBRASKA REPORTS
favorable to the State, could have found with a firm conviction
that the crime involved sexual contact. It could.
We noted in Norman that on remand, the court should con-
sider the factual basis, presentence report, and the evidence in
the record in determining whether sexual contact occurred.19
Here, the State’s factual basis obviously supported the court’s
finding because the factual basis alleged that Norman had
touched T.A.W.’s penis. The presentence report also supported
the court’s finding. As part of the presentence investigation,
the court ordered Norman to participate in a psychological and
sex offender evaluation. Although the court determined that
the resulting report essentially “offer[ed] no significant infor-
mation or diagnosis concerning any aberrant sexual behaviors
of [Norman],” the report shows otherwise. Specifically, the
report concluded that Norman’s test “results raise a red flag
regarding his sexual interest in children. [Norman] needs to
have Sex Offender therapy to address these concerns.” So
both the factual basis and the presentence report supported the
court’s finding.
The evidentiary exhibits also provided support for the
court’s finding. Exhibit 2 contains numerous police reports
related to T.A.W.’s allegations against Norman. Those reports
document the police investigation, including the interviews
of T.A.W., his mother, and T.A.W.’s counselor. They note
that T.A.W. told several people, including police officers,
that Norman had inappropriately touched him. It is true, as
Norman notes, that an investigating police officer was initially
concerned that T.A.W. had been coached. But we reiterate
that our standard of review requires us to view the evidence
in the light most favorable to the State. This was the only
evidence that T.A.W. might have been coached. And this did
not stop law enforcement from continuing the investigation
and eventually arresting Norman, which would indicate that
coaching was ruled out as a possibility. Furthermore, this
same officer reported that T.A.W.’s counselor, among others,
later explained that T.A.W. was uncomfortable speaking with
men. This could explain T.A.W.’s looking toward his mother
19 See Norman, supra note 2.

STATE v. NORMAN 	79
Cite as 285 Neb. 72
at the initial interview, which is apparently what the district
court concluded.
The record contains T.A.W.’s deposition testimony. After
reading the deposition, we agree with the district court that
T.A.W. “essentially testified consistently and without sub-
stantial or meaningful conflict” throughout the deposition.
We recognize that the deposition contains some inconsisten-
cies, but T.A.W. always maintained that Norman had inap-
propriately touched him, and T.A.W. never wavered on that
point at any time during the investigation or prosecution.
Furthermore, the inconsistencies in T.A.W.’s deposition are
relatively minor and may be explained by the time that had
elapsed since the alleged incidents, T.A.W.’s age and situa-
tion, and the length of the deposition. We conclude that this
evidence, when taken together, could lead a rational trier of
fact to have found with a firm conviction that Norman’s crime
involved sexual contact.
We express one final note on the issue of credibility. Both
Norman and the State, at oral argument, characterized the dis-
pute as one coming down to credibility—T.A.W.’s allegations
against Norman’s denials. This case was a bit unique, however,
because T.A.W. never testified in person before the court, and
so one could argue that the court could not make a credibility
determination about T.A.W. Or, at least, we would not neces-
sarily be required to defer to such a credibility determina-
tion because the court had the same evidence before it as we
do—that being a cold record. But Norman did testify in person
before the court, and he denied any inappropriate touching of
T.A.W. The court’s finding that sexual contact occurred dem-
onstrated that the court did not find Norman to be credible, and
that determination is entitled to deference under our standard
of review.
CONCLUSION
The court weighed the evidence and found by clear and
convincing evidence that Norman’s crime involved sexual con-
tact. We conclude that the evidence supported that finding and
affirm the court’s order requiring Norman to register under
SORA.
affIRmed.