State v. Petersen

182 Neb. at 293, 154 N.W.2d at 468. And, “[i]t is fundamental
that an appellate court cannot pass on the merits of a case falling
within its appellate jurisdiction unless its jurisdiction is invoked
in the manner prescribed by statute.” Id.
CONCLUSION
Because the Woodens failed to comply with the 5-day require-
ment of § 76-715.01 for timely filing the affidavit of mailing
notice, neither the district court nor this court has subject matter
jurisdiction over the action. The order of the district court dis-
missing the Woodens’ appeal of the condemnation proceedings
commenced by the County is hereby affirmed.
We do not address the Woodens’ additional assignments and
arguments, because they are not necessary to our analysis. See
Jackson v. Brotherhood’s Relief & Comp. Fund, 273 Neb. 1013,
734 N.W.2d 739 (2007) (appellate court is not obligated to
engage in analysis which is not needed to adjudicate case and
controversy before it).
A ffirmed .
stAte of nebrAsKA, Appellee , v .
C hristopher petersen , AppellAnt .
744 N.W.2d 266
Filed January 22, 2008. 	No. A-07-179.
1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: 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. Such matters are for
the finder of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence, viewed and construed most favorably to the State, is suf-
ficient to support the conviction.
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.
3. Statutes. The meaning of a statute is a question of law.
STATE v. PETERSEN 	339
Cite as 16 Neb. App. 339
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:16 AM CST

4. Judgments: Appeal and Error. When reviewing questions of law, an appellate
court has an obligation to resolve the questions independently of the conclusion
reached by the trial court.
5. 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.
6. Sentences. An abuse of discretion occurs when a sentencing court’s reasons or
rulings are clearly untenable and unfairly deprive the litigant of a substantial right
and a just result.
7. ____. In considering a sentence to be imposed, the sentencing court is not limited
in its discretion to any mathematically applied set of factors.
8. ____. The appropriateness of a sentence is necessarily a subjective judgment and
includes the sentencing judge’s observation of the defendant’s demeanor and atti-
tude and all the facts and circumstances surrounding the defendant’s life.
Appeal from the District Court for Sarpy County: dAvid K.
A rterburn, Judge. Affirmed.
Thomas P. Strigenz, Sarpy County Public Defender, and Regan
Fahey Muhs, Senior Certified Law Student, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
inbody, Chief Judge, and CArlson and CAssel, Judges.
CArlson, Judge.
INTRODUCTION
After a bench trial in the district court for Sarpy County,
Christopher Petersen was convicted of enticement of a child
for sexual purposes through the use of a computer, in violation
of Neb. Rev. Stat. § 28-320.02 (Cum. Supp. 2004). On appeal,
Petersen asserts that venue is improper, that there is insuffi-
cient evidence to convict him of violating § 28-320.02, that his
motion to continue sentencing should have been granted, and
that his sentence is excessive. Based on the reasons that follow,
we affirm.
FACTUAL BACKGROUND
On April 6, 2006, Brad Wood, a police officer with the
La Vista Police Department went “undercover” as a 13-year-old
girl named “Missy” in an Internet chat room under the “screen
name” of “lilmissygurl2003.” During the time Wood was in the
chat room, he and the computer he was using were located at the
340 	16 NEBRASKA APPELLATE REPORTS

police station in La Vista. While Wood was in the chat room, he
received a private message from “ursweetdreamnomaha,” later
identified as Petersen, who was 20 years old at the time. The
private message could not be seen by others in the chat room. A
conversation then ensued between the two in this private mes-
sage location. A complete printed copy of the dialog between
Missy and Petersen was entered into evidence at trial.
At the beginning of the conversation, Missy told Petersen
that she was a 13-year-old female. Petersen next asked Missy if
she had a picture of herself that she could send, and when she
did not, Petersen asked her to describe what she looked like.
Petersen then asked Missy if she would want to “hangout.” he
first suggested going to a park or watching a movie and then
further stated, “I love to cuddle but [I do not know] if [you]
would want to.” he also told Missy that she could try “weed”
if she wanted to, if they met. Petersen next asked Missy what
she looks for in guys and whether she likes to date older guys.
Petersen then changed the conversation into one of a more sex-
ually explicit nature. Petersen asked Missy if she was a virgin
and if she liked being a virgin or if she wanted “to do more.” he
also asked, “[W]hat have [you] done with a guy?” During the
conversation, Missy told Petersen that she may be able to meet
him after lunch and Petersen asked her if she wanted to “have
[him] for dessert.” he followed that question with the state-
ment, “[W]ell maybe we can start with cuddling and see how it
goes from there.” Petersen also told Missy that she should wear
a skirt when they meet because “it might cum in handy” and
would be “less trouble than jeans.”
Petersen also asked Missy about the tightness of her vaginal
area, specifically asking her to see how many fingers she could
insert into her vagina. Petersen also told Missy that he was
“really hard” and asked her if he should “jack off” or wait for
her. Petersen next asked Missy, “do [you] suck” and whether
she would “swallow.”
At the end of the Internet conversation, Petersen and Missy
arranged to meet at the clubhouse of Missy’s apartment com-
plex, located in Sarpy County, immediately following their
conversation. When the conversation ended, Wood proceeded
to the apartment clubhouse where Missy and Petersen agreed
STATE v. PETERSEN 	341
Cite as 16 Neb. App. 339

to meet. Shortly after Wood arrived, Petersen also arrived in his
car. Wood made contact with Petersen and identified himself as
a police officer, at which time Petersen told Wood that Missy
told him she was 17 years old. Petersen was placed under arrest.
Wood conducted a search of Petersen’s vehicle and found an
empty box of condoms and a pair of handcuffs.
After Petersen’s arrest, Wood interviewed Petersen at the
police department. Petersen told Wood that he was the person
using the screen name “ursweetdreamnomaha,” that he believed
Missy was 13 years old, and that he had been using his laptop
computer at his residence for the Internet chat with Missy.
Petersen told Wood that his only intent was to “hang out”
with Missy.
Wood subsequently conducted a search of Petersen’s resi-
dence and located and seized the laptop computer that Petersen
said had been used for the conversation with Missy. Wood testi-
fied that a search of Petersen’s computer revealed an archived
copy of the dialog between Petersen and Missy.
Petersen testified that he likes to go to chat rooms to meet
people to “hang out” with. Petersen testified that at the begin-
ning of his conversation with Missy, she told him that she was
13 years old. he testified that they started talking about “basic
stuff” which then led into sexual comments. he testified that he
asked Missy the questions that were of a sexual nature out of
curiosity or because they were conversation starters. Petersen
admitted that he was masturbating during part of the online
chat. Petersen testified that his only intention when meeting
Missy was to “hang out” with her. Petersen further testified that
it was not his intent to have sex with Missy when he met her,
but he thought that they would maybe “cuddle.” Petersen admit-
ted that based on the conversation that occurred between him
and Missy, it appeared that his intention was to have sex with
Missy, but he stated that was not his intent.
PROCEDURAL BACKGROUND
On May 24, 2006, an information was filed in the district
court for Sarpy County charging Petersen with enticement of a
child for sexual purposes through the use of a computer. Petersen
pled not guilty, and a bench trial was held on November 1.
342 	16 NEBRASKA APPELLATE REPORTS

Petersen made a motion to dismiss at the close of the State’s
evidence and at the end of all the evidence, which the trial court
overruled. Following trial, the trial court found Petersen guilty.
The trial court set sentencing for February 2, 2007, and ordered
that a presentence investigation report (PSI) be completed. On
January 31, 2007, Petersen filed a motion to continue sentenc-
ing and request for a new PSI, alleging that the current PSI
contained erroneous and prejudicial information. The court
overruled the motion to continue. The trial court sentenced
Petersen to a term of 3 to 5 years’ imprisonment. Petersen filed
a motion for new trial, which was overruled. Petersen appeals
his conviction and sentence.
ASSIGNMENTS OF ERROR
Petersen assigns that the trial court erred in (1) finding that
Sarpy County was a proper venue for the case; (2) allowing
Wood to testify as to the definition of a computer; (3) finding
that the State proved that Petersen used a computer in viola-
tion of § 28-320.02, as defined in Neb. Rev. Stat. § 28-1343
(Reissue 1995); (4) denying his motion to dismiss; (5) denying
his motion for new trial; (6) denying his motion to continue
sentencing and request for a new PSI; and (7) imposing an
excessive sentence.
STANDARD OF REVIEW
[1] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the issue
is labeled as a failure to direct a verdict, insufficiency of the
evidence, or failure to prove a prima facie case, the standard is
the same: 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. Such matters are for the
finder of fact, and a conviction will be affirmed, in the absence
of prejudicial error, if the evidence, viewed and construed most
favorably to the State, is sufficient to support the conviction.
State v. Kuehn, 273 Neb. 219, 728 N.W.2d 589 (2007); State v.
Johnson, 261 Neb. 1001, 627 N.W.2d 753 (2001).
[2] When reviewing a criminal conviction for sufficiency of
the evidence to sustain the conviction, the relevant question for
STATE v. PETERSEN 	343
Cite as 16 Neb. App. 339

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. State v. Aldaco, 271 Neb. 160, 710 N.W.2d
101 (2006); State v. Atchison, 15 Neb. App. 422, 730 N.W.2d
115 (2007).
[3,4] The meaning of a statute is a question of law. State v.
Vasquez, 271 Neb. 906, 716 N.W.2d 443 (2006); Lamar Co. v.
Omaha Zoning Bd. of Appeals, 271 Neb. 473, 713 N.W.2d 406
(2006). When reviewing questions of law, an appellate court
has an obligation to resolve the questions independently of the
conclusion reached by the trial court. Id.
ANALYSIS
Venue.
Petersen first argues that Sarpy County was not a proper
venue for the charge against him. he contends that because
the use of a computer is required to violate § 28-320.02, the
location of his computer when the crime was committed is
paramount in determining proper venue. Thus, he argues that
because the computer he used to commit the crime was located
in Douglas County, Sarpy County is an improper venue and
Douglas County is the only proper venue to try the case against
him. We conclude that under Neb. Rev. Stat. § 29-1301.01
(Reissue 1995), venue in Sarpy County is proper. Section
29-1301.01 states:
If any person shall commit an offense against the per-
son of another, such accused person may be tried in the
county in which the offense is committed, or in any county
. . . in which an act is done by the accused in instigat-
ing, procuring, promoting, or aiding in the commission of
the offense . . . .
The offense of child enticement involves the soliciting, coaxing,
enticing, or luring of a child or a police officer believed by a
defendant to be a child. Thus, the crime requires that there be a
recipient of a defendant’s actions in order for soliciting, coax-
ing, enticing, or luring to occur. In the instant case, the police
officer being solicited, the recipient of Petersen’s actions, was
located in Sarpy County and was receiving and responding to
344 	16 NEBRASKA APPELLATE REPORTS

Petersen’s messages from a computer located in Sarpy County.
Therefore, the place where the soliciting, coaxing, enticing,
or luring occurred was in Sarpy County. Further, the meeting
which was arranged between Petersen and Missy took place
in Sarpy County. Thus, we conclude that Sarpy County is a
county “in which an act is done by the accused in instigat-
ing, procuring, promoting, or aiding in the commission of the
offense.” Accordingly, Sarpy County is a proper venue in which
to hold Petersen’s trial for the offense of child enticement
by computer.
Sufficiency of Evidence.
Petersen’s next two assignments of error are related and
basically allege that there is insufficient evidence to support
a conviction of child enticement by computer. Specifically,
Petersen argues that Wood does not have sufficient expertise,
nor was sufficient foundation laid, to permit Wood to testify
that Petersen used a computer as defined by § 28-1343. Petersen
further argues that even if Wood’s testimony is admissible, it is
still insufficient to prove that Petersen used a computer in viola-
tion of § 28-320.02, as defined in § 28-1343.
Section 28-320.02 states in part as follows:
(1) No person shall knowingly solicit, coax, entice, or
lure (a) a child sixteen years of age or younger or (b) a
peace officer who is believed by such person to be a child
sixteen years of age or younger, by means of a computer
as that term is defined in section 28-1343, to engage in
an act which would be in violation of section 28-319 or
28-320.01 or subsection (1) or (2) of section 28-320.
“Computer” is defined in § 28-1343(2) as
a high-speed data processing device or system which per-
forms logical, arithmetic, data storage and retrieval, com-
munication, memory, or control functions by the manipu-
lation of signals, including, but not limited to, electronic
or magnetic impulses, and shall include any input, out-
put, data storage, processing, or communication facilities
directly related to or operating in conjunction with any
such device or system.
STATE v. PETERSEN 	345
Cite as 16 Neb. App. 339

Wood testified that he has had several training classes involving
“computer forensics, conducting forensic examinations of com-
puters, the different parts that make up a computer” and training
on the basic principles of data recovery and data created by a
computer. he further testified that he has had prior experience
with laptop computers like the one recovered from Petersen’s
residence and that Petersen’s computer is capable of data stor-
age and retrieval. Wood also testified that Petersen told him
that he was using his laptop computer to conduct the Internet
chat. We conclude that allowing Wood’s testimony regarding
Petersen’s computer was not an abuse of discretion and that
there was sufficient evidence to establish that Petersen used a
computer as defined in § 28-1343. Petersen’s first two assign-
ments of error are without merit.
We further conclude that the evidence demonstrates that
Petersen believed he was talking with a 13-year-old girl and
“solicited, coaxed, enticed, or lured” her by means of a com-
puter to meet him with the intent of engaging in an act which
would be in violation of § 28-319 or § 28-320.01. Thus, when
viewing the evidence in a light most favorable to the State, the
evidence is sufficient to support a conviction for child entice-
ment by computer.
Motion to Dismiss and Motion for New Trial.
Petersen also assigns that the trial court erred in failing to
grant his motion to dismiss made at the end of the State’s case
and at the close of all the evidence and erred in failing to grant
his motion for new trial. Both of these assignments of error are
based on the same arguments made by Petersen that we have
addressed above, i.e., improper venue and lack of sufficient
evidence in regard to Petersen’s use of a computer. Accordingly,
we need not address these two assignments of error further as
they are without merit for the same reasons previously set forth
in this opinion.
Motion to Continue Sentencing and Request for New PSI.
Petersen next assigns that the trial court erred in failing
to sustain his motion to continue sentencing and request for
a new PSI. Petersen contends that his motion to continue
346 	16 NEBRASKA APPELLATE REPORTS

sentencing should have been granted to allow for a new PSI to
be completed because the PSI presented to the court contained
“numerous erroneous, prejudicial errors that resulted in biased
recommendations by the Probation Officer to the Court.” Brief
for appellant at 22. Specifically, Petersen complains that the
probation officer who prepared the PSI was under the mistaken
impression Petersen had lied to her about being enrolled at the
University of Nebraska at Omaha (UNO) and that such mistake
tainted the entire PSI and resulted in the probation officer’s
recommending a harsher sentence than she would have without
the mistaken belief.
The PSI presented to the court shows two places where the
probation officer incorrectly asserted that Petersen was not in
school, as he had told her. however, the PSI also contains a
notice from the probation officer to the district court indicat-
ing that the UNO registrar’s office erred in the information
it sent to the probation officer and that Petersen was in fact
enrolled at UNO and was registered for 12 credit hours at the
time. Therefore, the correction by the probation officer erases
any “taint” the error may have lent to the PSI, because the trial
court was informed that Petersen was enrolled at UNO just as
he had told the probation officer. In addition, at the sentencing
hearing, the trial court stated that Petersen’s school status had
been clarified, that his attendance at school worked in his favor,
and “[a]s far as the recommendations being based on [the proba-
tion officer’s] opinion or misunderstanding, however we want to
characterize it, that will be disregarded by the Court as it relates
to the issue that’s raised in the motion [to continue sentencing]
as far as whether any misrepresentations were made.” Petersen
does not argue or mention any other “erroneous, prejudicial
errors” in the PSI. Therefore, we conclude that the trial court did
not err in overruling Petersen’s motion to continue sentencing
and request for a new PSI.
Excessive Sentence.
[5-8] Finally, Petersen assigns as error that the sentence
imposed by the district court was excessive. A sentence imposed
within statutory limits will not be disturbed on appeal absent
an abuse of discretion by the trial court. State v. Losinger,
STATE v. PETERSEN 	347
Cite as 16 Neb. App. 339

268 Neb. 660, 686 N.W.2d 582 (2004); State v. Atchison, 15
Neb. App. 422, 730 N.W.2d 115 (2007). An abuse of discretion
occurs when a sentencing court’s reasons or rulings are clearly
untenable and unfairly deprive the litigant of a substantial right
and a just result. Id. In considering a sentence to be imposed,
the sentencing court is not limited in its discretion to any
mathematically applied set of factors. State v. Griffin, 270
Neb. 578, 705 N.W.2d 51 (2005); State v. Atchison, supra. The
appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the
defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life. Id.
here, the trial court sentenced Petersen to incarceration of
3 to 5 years. A violation of § 28-320.02 is a Class IIIA felony,
punishable by up to 5 years’ imprisonment, a $10,000 fine, or
both. See Neb. Rev. Stat. § 28-105 (Cum. Supp. 2006). Petersen’s
sentence is within the statutory limits. Further, the record con-
tains no indication that the trial court abused its discretion. We
conclude that Petersen’s sentence is not excessive.
CONCLUSION
We conclude that Sarpy County was a proper venue in which
to conduct Petersen’s trial, that there is sufficient evidence to
convict Petersen of enticement of a child for sexual purposes
through the use of a computer, that his motion to continue
sentencing and request for a new PSI was properly overruled,
and that his sentence is not excessive. Accordingly, Petersen’s
conviction and sentence are affirmed.
A ffirmed .
348 	16 NEBRASKA APPELLATE REPORTS