State v. Payan

State of NebraSka , appellee , v.
abram l. payaN, appellaNt.
765 N.W.2d 192
Filed May 1, 2009. 	No. S-08-598.
1. Constitutional Law: Criminal Law: Jury Trials. Whether a criminal defendant
has been denied a constitutional right to a jury trial presents a question of law.
2. Judgments: Appeal and Error. When deciding questions of law, an appellate
court is obligated to reach conclusions independent of those reached by the
trial court.
3. Sentences: Appeal and Error. Sentences within statutory limits will be disturbed
by an appellate court only if the sentences complained of were an abuse of judi-
cial discretion.
4. Convicted Sex Offender: Statutes: Legislature: Intent. In enacting Neb. Rev.
Stat. § 83-174.03 (Reissue 2008), the Legislature intended to establish an addi-
tional form of punishment for some sex offenders.
5. Convicted Sex Offender: Sentences: Juries. Where the facts necessary to estab-
lish an aggravated offense as defined by the Sex Offender Registration Act are
not specifically included in the elements of the offense of which the defendant is
convicted, such facts must be specifically found by the jury in order to impose
lifetime community supervision under Neb. Rev. Stat. § 83-174.03 (Reissue
2008) as a term of the sentence.
6. Constitutional Law: Courts: Appeal and Error. Constitutional error is subject
to automatic reversal only in those limited instances where a court has determined
that the error is structural.
7. 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.
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. In imposing a sentence, the sentencing court is not limited to any
mathematically applied set of factors. The appropriateness of a sentence is neces-
sarily a subjective judgment and includes the sentencing judge’s observation of
the defendant’s demeanor and attitude and all the facts and circumstances sur-
rounding the defendant’s life.
10. ____. When imposing a sentence, a sentencing judge should consider the defend-
ant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural
background, (5) past criminal record or record of law-abiding conduct, and (6)
motivation for the offense, as well as (7) the nature of the offense, and (8) the
amount of violence involved in the commission of the crime.
STATe v. pAyAN 	663
Cite as 277 Neb. 663
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

Appeal from the District Court for Lancaster County: SteveN
D. burNS, Judge. Affirmed.
Dennis R. Keefe, Lancaster County public Defender, and
Robert G. Hays for appellant.
Jon Bruning, Attorney General, J. Kirk Brown, and Kimberly
A. Klein for appellee.
H eavicaN, c.J., WrigHt, coNNolly, gerrarD, StepHaN, and
mccormack , JJ.
StepHaN, J.
After a jury found Abram L. payan guilty of one count of
first degree sexual assault and one count of false imprison-
ment, the trial judge sentenced him to a term of 18 to 25 years’
imprisonment on the sexual assault conviction and 5 to 5 years’
imprisonment on the false imprisonment conviction, with the
sentences to run concurrently. The trial judge made a finding
that the sexual assault conviction constituted an “aggravated
offense” as defined by the Sex Offender Registration Act
(SORA)1 and that therefore, payan was subject to the lifetime
registration requirement of SORA and lifetime community
supervision pursuant to Neb. Rev. Stat. § 83-174.03 (Reissue
2008) following his release from prison. In this direct appeal,
payan contends that the trial court erred in determining that
he had committed an aggravated offense and further erred in
imposing an excessive sentence.
I. BACKGROUND
In an amended information filed in the district court for
Lancaster County, payan was charged with first degree sexual
assault by a person 19 years of age or older subjecting a person
at least 12 years of age but less than 16 years of age to sexual
penetration, a Class II felony.2 He was also charged with first
degree false imprisonment by knowingly restraining a per-
son under terrorizing circumstances or under circumstances
1 See Neb. Rev. Stat. § 29-4001 to 29-4014 (Reissue 2008).
2 Neb. Rev. Stat. § 28-319(1) and (2) (Reissue 2008).
664 	277 NeBRASKA RepORTS

which exposed the victim to the risk of serious bodily injury, a
Class IIIA felony.3 payan was tried by a jury.
C.N., whose date of birth is November 14, 1992, testified to
events occurring in Lancaster County, Nebraska, on September
8 and 9, 2007. C.N. lived across the street from payan and was
at home on the evening of September 8. She testified that payan
called and asked her to “hang out” with him and several others,
including his nephew and another male who were classmates
of C.N. payan said that they would not be gone long and that
C.N. would not get in trouble. C.N. decided to join the group.
She left her home through a basement window and entered the
back seat of payan’s vehicle, where C.N.’s two male classmates
were seated. An older individual known as Ason was seated in
the front passenger seat.
payan drove for some distance and then stopped at a store.
He and Ason went inside, leaving C.N. and the others in the
vehicle. C.N. testified that while payan and Ason were in the
store, she told her classmates that she was frightened because
of a prior experience with payan but that payan’s nephew and
the other male assured her they would not let anything happen
to her.
When payan and Ason returned to the vehicle, payan drove
to an unlocked house in Lincoln, Nebraska. After C.N. and the
four males entered the front door of the house, payan and Ason
blocked the door by placing a piece of furniture in front of it.
C.N. testified that payan gave her an alcoholic beverage in a
shot glass and insisted that she drink it. After initially resisting,
she drank several shots, because she did not feel that she had a
choice. C.N. testified that she did not feel well after consuming
the alcohol and went to a bedroom of the home to lie down.
When payan entered the bedroom, C.N. left the room and
rejoined the others, who had remained in the front room of the
home. One of C.N.’s classmates testified that while C.N. was
in the bedroom, payan stated that he intended to use his knife
to coerce C.N. to perform oral sex.
C.N. testified that when she returned to the front room,
payan, who was also now in the front room, displayed a knife
3 Neb. Rev. Stat. § 28-314 (Reissue 2008).
STATe v. pAyAN 	665
Cite as 277 Neb. 663

and told her he would kill her if she did not comply with his
instructions. She testified that payan then subjected her to oral
and anal penetration in the presence of the others in the room.
C.N. testified that payan then took her to the bedroom to per-
form oral sex on Ason. C.N.’s testimony regarding these events
was corroborated by the testimony of one of her male class-
mates, who stated that he was present and observed the events
described by C.N. in her testimony.
All five persons then left the house. C.N. testified that payan
dropped her off in front of his home and told her not to call the
police. Instead of entering her home, C.N. walked to a friend’s
house, arriving after 1 a.m. on September 9, 2007. She told her
friend what had occurred. He and another friend drove her to
her home at approximately 7 a.m. on September 9.
payan testified in his own defense. He was born on August
5, 1984, and was 23 years old in September 2007. He testi-
fied that he was acquainted with C.N., but denied that he had
engaged in sexual acts with her. payan’s 15-year-old nephew
also testified for the defense. He denied that he was present at
the time of the alleged assault and testified that he had never
seen payan engage in sex with C.N.
After the jury returned guilty verdicts on both charges, the
district court ordered a presentence investigation report and
subsequently conducted a sentencing hearing. At that hearing,
payan’s counsel objected to any finding that the sexual assault
conviction constituted an aggravated offense under SORA.
He argued that the elements of the offense did not meet the
statutory definition of an aggravated offense and that any
factual finding by the court would violate the constitutional
principles articulated by the U.S. Supreme Court in Apprendi
v. New Jersey.4 The district court made a specific finding that
payan’s conviction on the sexual assault charge constituted an
aggravated offense triggering the lifetime registration require-
ment under SORA and lifetime community supervision. At the
sentencing hearing, payan signed documents acknowledging
that he had been advised of these requirements. payan was
4 Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. ed. 2d 435
(2000).
666 	277 NeBRASKA RepORTS

sentenced to a term of 18 to 25 years’ imprisonment on the
sexual assault conviction and 5 to 5 years’ imprisonment on
the false imprisonment conviction, with the sentences to run
concurrently.
payan perfected this timely appeal, and both parties filed
petitions to bypass, which we granted.
II. ASSIGNMeNTS OF eRROR
payan assigns that (1) the court erred in finding that he is
subject to lifetime sex offender registration, (2) the court erred
in finding that he is subject to lifetime supervision by the
Office of parole Administration, and (3) his sentence on the
sexual assault conviction was excessive.
III. STANDARD OF RevIeW
[1,2] Whether a criminal defendant has been denied a con-
stitutional right to a jury trial presents a question of law.5
When deciding questions of law, an appellate court is obligated
to reach conclusions independent of those reached by the
trial court.6
[3] Sentences within statutory limits will be disturbed by an
appellate court only if the sentences complained of were an
abuse of judicial discretion.7
Iv. ANALySIS
1. aggravateD offeNSe fiNDiNg
SORA applies to any person who pleads guilty to or is
found guilty of certain listed offenses, including sexual assault
as defined by § 28-319 or Neb. Rev. Stat. § 28-320 (Reissue
2008).8 SORA includes a general requirement that persons
convicted of these listed offenses must register with the sheriff
of the county in which he or she resides9 during any period of
supervised release, probation, or parole and “for a period of
5 State v. Clapper, 273 Neb. 750, 732 N.W.2d 657 (2007).
6 State v. Kuhl, 276 Neb. 497, 755 N.W.2d 389 (2008).
7 State v. Draganescu, 276 Neb. 448, 755 N.W.2d 57 (2008).
8 § 29-4003(1)(a)(iii).
9 § 29-4004(1).
STATe v. pAyAN 	667
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ten years after the date of discharge from probation, parole,
or supervised release or release from incarceration, whichever
date is most recent.”10
Certain sex offenders, however, are subject to a lifetime
registration requirement. Section 29-4005(2) provides:
A person required to register under section 29-4003 shall
be required to register under [SORA] for the rest of his
or her life if the offense creating the obligation to reg-
ister is an aggravated offense, if the person has a prior
conviction 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, com-
monwealth, or other jurisdiction of the United States. A
sentencing court shall make that fact part of the sentenc-
ing order.
The lifetime community supervision provisions of § 83-174.03
incorporate and mirror the lifetime registration provisions of
SORA.11 According to § 83-174.03(1), a defendant who com-
mits an aggravated offense as defined by SORA “shall, upon
completion of his or her term of incarceration or release from
civil commitment, be supervised in the community by the
Office of parole Administration for the remainder of his or
her life.”
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.”12 payan argues that he was not convicted
of an aggravated offense as defined by SORA, because the ele-
ments of first degree sexual assault as charged in the amended
information did not include either the use of force or the threat
of serious violence or a victim under the age of 12 years. We
recently rejected a similar contention in State v. Hamilton,13
10 § 29-4005(1).
11 State v. Hamilton, ante p. 593, 763 N.W.2d 731 (2009); State v. Schreiner,
276 Neb. 393, 754 N.W.2d 742 (2008).
12 § 29-4005(4)(a).
13 State v. Hamilton, supra note 11.
668 	277 NeBRASKA RepORTS

concluding that under SORA, a sentencing judge need not con-
sider only the elements of an offense in determining whether
an aggravated offense as defined in § 29-4005(4)(a) has been
committed. Instead, the court may make this determination
based upon information contained in the record. payan’s argu-
ment that the aggravated offense determination under SORA
must be based solely upon the elements of the charged offense
is without merit.
2. A pprendi/B lAkely argumeNt
Alternatively, payan argues that any factual finding of an
aggravated offense must be made by a jury. This issue was
neither raised nor addressed in Hamilton. payan’s argument
relies upon the principle established by Apprendi that “[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable
doubt.”14 This principle is based upon the Due process Clause
of the 5th Amendment and the jury trial guarantees of the
6th Amendment, as made applicable to the states by the 14th
Amendment.15 Apprendi involved a state statute which permit-
ted a judge to impose an extended term of imprisonment if
the judge found by a preponderance of the evidence that in
committing the crime, the defendant acted with the purpose of
intimidation based upon race, color, gender, handicap, religion,
sexual orientation, or ethnicity. Concluding that such a find-
ing would be constitutionally impermissible, the U.S. Supreme
Court reasoned that the legislature could not “‘remove from
the jury the assessment of facts that increase the prescribed
range of penalties to which a criminal defendant is exposed.
It is equally clear that such facts must be established by proof
beyond a reasonable doubt.’”16 Subsequently, in Blakely v.
Washington,17 the Court held that “the ‘statutory maximum’
14 Apprendi v. New Jersey, supra note 4, 530 U.S. at 490.
15 Apprendi v. New Jersey, supra note 4.
16 Id., 530 U.S. at 490, quoting Jones v. United States, 526 U.S. 227, 119 S.
Ct. 1215, 143 L. ed. 2d 311 (1999) (Stevens, J., concurring).
17 Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 159 L. ed. 2d
403 (2004) (emphasis in original).
STATe v. pAyAN 	669
Cite as 277 Neb. 663

for Apprendi purposes is the maximum sentence a judge may
impose solely on the basis of the facts reflected in the jury ver-
dict or admitted by the defendant.”
In applying the Apprendi/Blakely principle to the issues in
this case, we must consider whether the aggravated offense
finding made by the sentencing judge subjected payan to pun-
ishment which could be imposed on the basis of the jury ver-
dict alone.18 Because payan’s sentence of imprisonment for the
sexual assault conviction is within the 1- to 50-year statutory
range for a Class II felony,19 the narrower question is whether
the lifetime registration requirement under SORA and the life-
time community supervision requirement under § 83-174.03
constitute punishment.
(a) Lifetime Registration
We have previously addressed the question of whether
SORA registration requirements are punitive in the context of
an ex post facto challenge. In State v. Worm,20 the defendant
argued that the lifetime registration requirement under SORA
was punitive in nature and therefore in violation of the ex
post facto clause as applied to him. We analyzed this issue
under the “intent-effects” test established by the U.S. Supreme
Court which requires an initial determination of whether the
Legislature intended the statute to be criminal or civil.21 If
a court determines that the Legislature intended a statutory
scheme to be civil, that intent will be rejected “‘“only where
a party challenging the [statute] provides the clearest proof
that the statutory scheme is so punitive in either purpose or
effect as to negate the State’s intention.”’”22 In Worm, we first
concluded that in enacting SORA, the “Legislature intended to
create a civil regulatory scheme to protect the public from the
danger posed by sex offenders, which intent is not altered by
18 See id.
19 Neb. Rev. Stat. § 28-105 (Reissue 2008).
20 State v. Worm, 268 Neb. 74, 680 N.W.2d 151 (2004).
21 See Smith v. Doe, 538 U.S. 84, 123 S. Ct. 1140, 155 L. ed. 2d 164
(2003).
22 State v. Worm, supra note 20, 268 Neb. at 82, 680 N.W.2d at 160, quoting
State v. Isham, 261 Neb. 690, 625 N.W.2d 511 (2001).
670 	277 NeBRASKA RepORTS

the statute’s structure or design.”23 We then examined the fac-
tors set out by the U.S. Supreme Court in Kennedy v. Mendoza-
Martinez24 to determine whether the effect of the statute was
so punitive as to negate the Legislature’s intent. These fac-
tors include:
“(1) ‘[w]hether the sanction involves an affirmative dis-
ability or restraint’; (2) ‘whether it has historically been
regarded as a punishment’; (3) ‘whether it comes into play
only on a finding of scienter’; (4) ‘whether its operation
will promote the traditional aims of punishment—retribu-
tion and deterrence’; (5) ‘whether the behavior to which
it applies is already a crime’; (6) ‘whether an alternative
purpose to which it may rationally be connected is assign-
able for it’; and (7) ‘whether it appears excessive in rela-
tion to the alternative purpose assigned.’”25
We concluded in Worm that SORA’s offense categories and
registration periods were reasonably related to the danger of
recidivism and consistent with SORA’s regulatory objective of
assisting law enforcement in future efforts to investigate and
resolve sex offenses. We concluded that the registration provi-
sions had not been shown to be so punitive in either purpose
or effect as to negate the Legislature’s intention to create a
civil regulatory scheme. We wrote, “Because the registration
provisions are not punitive, we defer to the Legislature’s deter-
mination of what remedial action is necessary to achieve the
Legislature’s goals.”26
The intent-effects test utilized in Worm to determine whether
a statute was civil or punitive for purposes of ex post facto
analysis has also been applied to make this determination
in a double jeopardy context.27 But previously, in State v.
23 Id. at 84, 680 N.W.2d at 161.
24 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. ed. 2d
644 (1963).
25 State v. Isham, supra note 22, 261 Neb. at 695, 625 N.W.2d at 515-16
(2001), quoting Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139
L. ed. 2d 450 (1997).
26 State v. Worm, supra note 20, 268 Neb. at 88, 680 N.W.2d at 163.
27 See, Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. ed. 2d
501 (1997); State v. Howell, 254 Neb. 247, 575 N.W.2d 861 (1998).
STATe v. pAyAN 	671
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Schneider,28 we declined to employ the intent-effects test to
determine whether a court was required to advise a defendant
of the SORA registration requirements before accepting a no
contest plea. Instead, following the holdings of other state
courts, we concluded that a court is not required to inform a
defendant of the “collateral consequence of the duties imposed
under [SORA] before accepting his pleas.”29
Because Apprendi/Blakely focuses upon whether a defend-
ant is subjected to punishment beyond that which is permis-
sible on the basis of the jury verdict alone, we conclude that
the intent-effects test is the appropriate standard to determine
whether the lifetime registration requirement under SORA
and the lifetime community supervision requirement under
§ 83-174.03 are punitive in nature. If they are not, there can
be no Apprendi/Blakely error. Based upon our holding in Worm
that the registration provisions of SORA are not punitive, the
trial judge’s finding of an aggravating offense triggering the
lifetime reporting provisions did not violate the constitutional
principles articulated in Apprendi and Blakely.
(b) Lifetime Community Supervision
The same finding of an aggravated offense also triggers the
lifetime community supervision provisions of § 83-174.03.
We have not previously determined whether those provisions
are civil or penal in nature. We do so now, considering first
whether the Legislature intended the statute to be civil or puni-
tive in nature.
Section 83-174.03 will pass the intent prong of the intent-
effects test if the Legislature intended it to be a part of a civil
regulatory scheme to remedy a present situation and the restric-
tion to the individual comes about as a relevant incident to the
regulation.30 Whether the Legislature intended the statute to be
civil or criminal is primarily a matter of statutory construc-
tion. However, we must also look at the statute’s structure and
28 State v. Schneider, 263 Neb. 318, 640 N.W.2d 8 (2002).
29 Id. at 324, 640 N.W.2d at 13.
30 See, State v. Worm, supra note 20; Artway v. Attorney General of State of
N.J., 81 F.3d 1235 (3d Cir. 1996).
672 	277 NeBRASKA RepORTS

design.31 Although § 83-174.03 incorporates the aggravated
offense finding from SORA as one of the events which may
trigger the lifetime community supervision requirement, it is
not actually a part of SORA. The text of § 83-174.03 originated
in L.B. 1199,32 a 2006 “comprehensive bill that amend[ed]
several provisions of law with respect to sex offenses and con-
victed sex offenders.”33 L.B. 1199 created new sex offenses,
amended SORA, and mandated lifetime community supervi-
sion for certain sex offenders. According to the Judiciary
Committee’s summary:
L.B. 1199 provides for lifetime supervision after release
from prison or civil commitment for repeat sex offend-
ers and first time offenders convicted of rape of a child
under twelve years of age or forcible rape of a person
over twelve years of age. Supervision shall be provided
by the office of parole administration. each individual
subject to supervision shall be evaluated by [the] office of
parole administration and have conditions of supervision
imposed which are the least restrictive conditions that are
compatible with public safety.34
A 	key 	factor 	in 	determining 	the 	legislative 	intent 	of
§ 83-174.03 is the fact that the statute requires persons sub-
jected to lifetime community supervision to be supervised
by the Office of parole Administration, a component of the
Department of Correctional Services, which is responsible for
all parole services in the community.35 Section 83-174.03 is
codified in chapter 83, article 1(f), of the Nebraska Revised
Statutes 	pertaining 	to 	“Correctional 	Services, 	parole, 	and
pardons.” The term “parole” has a distinctively penal conno-
tation. It is generally defined as “[t]he release of a prisoner
31 State v. Worm, supra note 20. See, also, State v. Isham, supra note 22.
32 2006 Neb. Laws, L.B. 1199, § 89.
33 Introducer’s Statement of Intent, Judiciary Committee, 99th Leg., 2d Sess.
(Feb. 16, 2006).
34 Bill Summary, Judiciary Committee, 99th Leg., 2d Sess. (Feb. 16, 2006).
35 See Neb. Rev. Stat. § 83-1,100 (Reissue 2008).
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from imprisonment before the full sentence has been served.”36
In a case holding that a suspicionless search of a parolee did
not violate the Fourth Amendment, the U.S. Supreme Court
referred to parole as “‘an established variation on imprison-
ment of convicted criminals’” and to parolees as being “on
the ‘continuum’ of state-imposed punishments.”37 Nebraska
law defines “[p]arole term” as “the time from release on
parole to the completion of the maximum term, reduced by
good time.”38
Unlike the SORA registration requirements, § 83-174.03
subjects the offender who has completed a prison sentence to
significant affirmative restraints which may be imposed by the
Office of parole Administration. Some of these are similar to
restrictions which may be imposed upon incarcerated persons
paroled before their mandatory release date.39 These include
restrictions on place of residence40; required reporting to a
parole officer41; and submission to medical, psychological, psy-
chiatric, or other treatment.42 In addition, persons subject to
lifetime community supervision may be subject to drug and
alcohol testing, restrictions on employment and leisure activi-
ties, and polygraph examinations.43
A majority of the courts which have considered lifetime
community supervision statutes similar to § 83-174.03 have
concluded that they are punitive in nature, reasoning that
“post-release supervision increases the maximum range of an
offender’s sentence, thereby directly and immediately affecting
36 Black’s Law Dictionary 1149 (8th ed. 2004).
37 Samson v. California, 547 U.S. 843, 850, 126 S. Ct. 2193, 165 L. ed. 2d
250 (2006), quoting United States v. Knights, 534 U.S. 112, 122 S. Ct.
587, 151 L. ed. 2d 497 (2001), and Morrissey v. Brewer, 408 U.S. 471, 92
S. Ct. 2593, 33 L. ed. 2d 484 (1972).
38 Neb. Rev. Stat. § 83-170(11) (Reissue 2008).
39 See Neb. Rev. Stat. § 83-1,116 (Reissue 2008).
40 §§ 83-174.03(4)(d) and 83-1,116(1)(e).
41 §§ 83-174.03(4)(c) and 83-1,116(1)(d).
42 §§ 83-174.03(4)(f) and 83-1,116(1)(f).
43 § 83-174.03(4)(a), (b), and (f).
674 	277 NeBRASKA RepORTS

the defendant’s punishment.”44 The State has called our atten-
tion to one case holding otherwise, an unpublished opinion
of the Court of Criminal Appeals of Tennessee in which the
majority of a divided panel concluded that lifetime commu-
nity supervision did not constitute punishment, because it was
motivated by protective and rehabilitative aims.45 A dissenting
judge agreed with the majority of courts holding that a lifetime
community supervision requirement imposed at the time of
sentencing was punitive in nature.46
[4] We likewise agree with the majority view on this issue.
Lifetime community supervision under § 83-174.03 begins
upon completion of the offender’s term of incarceration or
release from civil commitment. It involves affirmative restraints
and disabilities similar to and arguably greater than traditional
parole. It is not dependent upon any finding that the offender
poses a risk to the safety of others at the time he or she com-
pletes a period of incarceration or civil commitment. We there-
fore conclude that the legislative intent in enacting § 83-174.03
was to establish an additional form of punishment for some
sex offenders.
[5] In this case, the imposition of lifetime community super-
vision was triggered by the finding of the trial judge, not
the jury, that payan had committed an aggravated offense as
defined by SORA. This constitutes error under Apprendi and
Blakely, because the punishment imposed on the basis of this
finding is beyond that which would have been permissible
on the basis of the jury verdict alone, i.e., imprisonment for
a maximum of 50 years. We hold that where the facts neces-
sary to establish an aggravated offense as defined by SORA
are not specifically included in the elements of the offense of
44 Palmer v. State, 118 Nev. 823, 828-29, 59 p.3d 1192, 1195 (2002). See,
State v. Jamgochian, 363 N.J. Super. 220, 832 A.2d 360 (2003); State
v. Baugh, No. 06-1599, 2008 WL 782742 (Iowa App. Mar. 26, 2008)
(unpublished disposition listed in table of “Decisions Without published
Opinions” at 752 N.W.2d 34 (Iowa App. 2008)).
45 Ward v. State, No. W2007-01632-CCA-R3-pC, 2009 WL 113236 (Tenn.
Crim. App. Jan. 14, 2009).
46 Id. (Tipton, presiding Judge, dissenting).
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which the defendant is convicted, such facts must be specifi-
cally found by the jury in order to impose lifetime community
supervision under § 83-174.03 as a term of the sentence. We
specifically note that the finding of an aggravated offense need
not be made by a jury if utilized only to impose the nonpuni-
tive lifetime registration requirements of SORA.47
(c) Harmless error Analysis
[6] The U.S. Supreme Court has recognized that most con-
stitutional error can be harmless.48 Constitutional error is sub-
ject to automatic reversal only in those limited instances where
the Court has determined that the error is “‘structural.’”49 In
Washington v. Recuenco,50 the Court held that an Apprendi/
Blakely error in failing to submit a sentencing factor to the
jury was not structural error and was subject to harmless error
analysis. We therefore consider whether the error in this case
was harmless.
[7] In performing a harmless error analysis, our normal
inquiry is whether the actual guilty verdict rendered in the
questioned trial was surely unattributable to the error.51 But
that standard does not logically fit the circumstance presented
here, where the error was a failure to require the jury to decide
a factual question pertaining only to the enhancement of the
sentence, not to the determination of guilt. We hold that the
appropriate harmless 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 sen-
tencing enhancement factor.52
47 State v. Hamilton, supra note 11.
48 Neder v. United States, 527 U.S. 1, 119 S. Ct. 1827, 144 L. ed. 2d 35
(1999).
49 Id., 527 U.S. at 8.
50 Washington v. Recuenco, 548 U.S. 212, 126 S. Ct. 2546, 165 L. ed. 2d 466
(2006).
51 See State v. Rogers, 277 Neb. 37, 760 N.W.2d 35 (2009).
52 See, Neder v. United States, supra note 48; Galindez v. State, 955 So. 2d
517 (Fla. 2007); Adams v. State, 336 Mont. 63, 153 p.3d 601 (2007); State
v. Bowen, 220 Or. App. 380, 185 p.3d 1129 (2008).
676 	277 NeBRASKA RepORTS

The jury found payan guilty of a sex offense which included
penetration as an element. Because C.N. was over the age of
12, the crime could be an aggravated offense only if it was
committed “through the use of force or the threat of serious
violence.”53 The jury heard two distinct versions of the facts.
C.N. and one eyewitness testified that the assault occurred
after payan displayed a knife and threatened to kill C.N. if
she did not submit to his sexual advances. payan and one
other witness testified that the assault never occurred. There
is no evidence that the assault occurred under circumstances
which did not involve the use of force or the threat of serious
violence. On this record, any rational jury which convicted
payan of the sexual assault would have also concluded that it
was committed through the use of force or the threat of seri-
ous violence. Accordingly, we conclude that the making of
this finding by the trial judge instead of the jury was harm-
less error.
3. exceSSive SeNteNce argumeNt
[8] payan argues that his sentence of imprisonment for 18 to
25 years on his sexual assault conviction was excessive. payan
was convicted of a Class II felony punishable by imprison-
ment for a minimum of 1 year and a maximum of 50 years.54
Because payan’s sentence falls within the statutory range, we
may alter it only if we conclude that it constituted an abuse of
judicial discretion.55 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 con-
science, reason, and evidence.56
[9,10] In imposing a sentence, the sentencing court is not
limited to any mathematically applied set of factors. The
appropriateness of a sentence is necessarily a subjective judg-
ment and includes the sentencing judge’s observation of the
53 § 29-4005(4)(a)(i).
54 §§ 28-105 and 28-319(1) and (2).
55 See State v. Draganescu, supra note 7.
56 State v. Davis, 276 Neb. 755, 757 N.W.2d 367 (2008); State v. Reid, 274
Neb. 780, 743 N.W.2d 370 (2008).
STATe v. pAyAN 	677
Cite as 277 Neb. 663

defendant’s demeanor and attitude and all the facts and cir-
cumstances surrounding the defendant’s life.57 When imposing
a sentence, a sentencing judge should consider the defendant’s
(1) age, (2) mentality, (3) education and experience, (4) social
and cultural background, (5) past criminal record or record of
law-abiding conduct, and (6) motivation for the offense, as well
as (7) the nature of the offense, and (8) the amount of violence
involved in the commission of the crime.58
payan was 23 years old at the time of the assault. He
dropped out of high school but later obtained his diploma
through the GeD program while at the Work ethic Camp after
a probation violation. He has two young children, one living in
Lincoln and the other in Las vegas, Nevada. He has assaulted
the mothers of both children. He pled guilty to second degree
kidnapping and battery constituting domestic violence against
the mother of his youngest child in 2006 in Las vegas. He was
sentenced to 6 months in jail with the sentence suspended, and
he was required to attend domestic violence counseling. payan
assaulted the mother of his oldest child in 2004, when she
attempted to end their relationship. He spent 10 days in jail for
that assault.
In 2004, payan pled guilty to an amended charge of attempted
robbery, for which he was sentenced to 90 days in jail and 4
years’ probation. The probation was extended to 5 years after
a violation, and payan was placed on intensive supervision
probation and committed to Work ethic Camp. According to
the presentence investigation report, during the robbery, payan
placed a knife at the victim’s throat and demanded money for
his next methamphetamine “‘fix.’”
payan reported alcohol abuse and drug use, specifically,
near daily use of marijuana from the age of 12 until 2005 and
weekly methamphetamine use for a period of 2 years end-
ing in 2004. Tests administered as a part of the presentence
investigation report assessed payan as being at very high
risk in categories measuring alcohol abuse, drug abuse or
57 State v. Albers, 276 Neb. 942, 758 N.W.2d 411 (2008).
58 State v. Williams, 276 Neb. 716, 757 N.W.2d 187 (2008).
678 	277 NeBRASKA RepORTS

relapse, violence, antisocial behavior, aggressiveness, and poor
stress coping.
We need not reiterate the egregious facts upon which his
current sexual assault conviction is based. Taking into account
all relevant factors, we conclude that the district court did not
abuse its discretion in sentencing payan.
v. CONCLUSION
In summary, we conclude that the finding that payan com-
mitted an aggravated offense was properly made by the trial
judge for purposes of the lifetime registration provisions of
SORA, which are civil in nature, but the question should have
been submitted to the jury for the purpose of lifetime com-
munity supervision pursuant to § 83-174.03, which is punitive.
We conclude, however, that this error was harmless and does
not require reversal. We further conclude that payan’s sentence
was not excessive, and we affirm the judgment of the district
court in all respects.
affirmeD.
miller-lermaN, J., participating on briefs.
RISOR v. NeBRASKA BOILeR 	679
Cite as 277 Neb. 679
JameS e. riSor , appellee , v.
NebraSka boiler , appellaNt.
765 N.W.2d 170
Filed May 1, 2009. 	No. S-08-726.
1. Workers’ Compensation: Appeal and Error. When reviewing a compensa-
tion award under Neb. Rev. Stat. § 48-185 (Reissue 2004), an appellate court
may modify, reverse, or set aside a Workers’ Compensation Court decision only
when (1) the compensation court acted without power or exceeded its powers;
(2) the judgment, order, or award was procured by fraud; (3) the record lacks
sufficient competent evidence to warrant the making of the order, judgment, or
award; or (4) the compensation court’s factual findings do not support the order
or award.
2. ____: ____. On appellate review of a workers’ compensation award, the trial
judge’s factual findings have the effect of a jury verdict and will not be disturbed
unless clearly wrong.
3. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
and an appellate court independently decides questions of law.