State v. Gay

State of NebraSka , appellee , v.
bradley a. Gay, appellaNt.
778 N.W.2d 494
Filed December 1, 2009. 	No. A-08-1103.
1. Assault: Words and Phrases. Intimate partner within the context of Neb. Rev.
Stat. § 28-323(7) (Reissue 2008) means a spouse, a former spouse, persons who
have a child in common whether or not they have been married or lived together
at any time, and persons who are or were involved in a dating relationship.
2. ____: ____. Dating relationship within the context of Neb. Rev. Stat. § 28-323(7)
(Reissue 2008) means frequent, intimate associations primarily characterized
by the expectation of affectional or sexual involvement, but does not include a
casual relationship or an ordinary association between persons in a business or
social context.
Appeal from the District Court for Douglas County, J ruSSell
derr, Judge, on appeal thereto from the County Court for
Douglas County, lawreNce e. barrett, Judge. Judgment of
District Court affirmed.
James Martin Davis, of Davis Law Office, for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
INbody, Chief Judge, and I rwIN and Moore, Judges.
I rwIN, Judge.
I. INTRODUCTION
Bradley A. Gay appeals an order of the district court for
Douglas County, Nebraska, affirming his conviction and sen-
tence by the county court for Douglas County for third degree
domestic assault. On appeal, Gay alleges that there is insuffi-
cient evidence to prove the victim of the assault was an “inti-
mate partner” pursuant to Neb. Rev. Stat. § 28-323 (Reissue
2008) and that as a result, there is insufficient evidence
to sustain his conviction for third degree domestic assault.
We affirm.
II. BACKGROUND
The State filed a criminal complaint charging Gay with
third degree domestic assault pursuant to § 28-323. The charge
STATe v. GAy 	163
Cite as 18 Neb. App. 163
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against Gay stems from an incident which occurred in August
2007. evidence adduced at trial revealed that Gay was at his
parents’ house “hanging out” with Amy Walter (Amy), when
she became upset with him and accused him of cheating on
her. Gay and Amy began to argue, and the argument became
physical. The argument was eventually broken up by Gay’s
mother. Subsequently, Amy left the Gay residence and went
to the sheriff’s office. There, she reported that Gay had “beat
[her] up.”
Gay’s argument on appeal concerns whether there was suf-
ficient evidence to demonstrate that Amy was his “intimate
partner” at the time of the assault. As such, we limit our discus-
sion of the facts presented at trial to only those necessary for
the resolution of this issue.
At trial, both Gay and Amy testified concerning their rela-
tionship. Amy testified that in August 2007, she was dating
Gay. She testified that at such time, they had been together for
a year; however, she indicated that they had been arguing with
each other for approximately 1 month because Gay was cheat-
ing on her.
During Gay’s testimony, he also described his relationship
with Amy as a dating relationship. He testified that he met
Amy on a social networking Web site and that they “basically
messaged each other randomly and began to hang out and
that’s how we became in a relationship and started dating.”
Gay testified that Amy often spent the night at his parents’
house with him, but that his parents required her to sleep in
the guestroom. Gay agreed with Amy’s testimony that at the
time of the incident, they had been fighting for about a month
because Amy believed he was cheating on her. Gay testified
that it was actually Amy who had cheated on him and that Amy
was a very jealous person who would not let him “hang out
with other females.”
Gay’s mother, father, and brother and Amy’s father also
testified about Gay and Amy’s relationship. Gay’s mother
testified that at the time of the incident, Gay and Amy were
in a dating relationship, and that she considered them to be
“boyfriend/girlfriend.” Gay’s father testified that he had known
Amy for about a year prior to the incident, that she had been
164 	18 NeBRASKA AppeLLATe RepORTS

to his house numerous times during that year, and that she had
even stayed overnight at his house on many occasions. Gay’s
brother described Amy as Gay’s “ex-girlfriend.” Amy’s father
testified that Amy and Gay had dated for about a year at the
time of the incident.
After the conclusion of the trial, the county court found Gay
guilty of third degree domestic assault and sentenced him to 90
days in jail. Subsequently, Gay appealed to the district court,
which affirmed the conviction and sentence. Gay now appeals
to this court.
III. ASSIGNMeNTS OF eRROR
On appeal, Gay alleges that there is insufficient evidence to
prove that Amy was his “intimate partner” pursuant to § 28-323
and that as a result, there is insufficient evidence to sustain his
conviction for third degree domestic assault.
IV. STANDARD OF ReVIeW
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 credi-
bility 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 admitted at trial,
viewed and construed most favorably to the State, is sufficient
to support the conviction. State v. McGhee, 274 Neb. 660, 742
N.W.2d 497 (2007).
V. ANALySIS
Section 28-323(1) provides, “A person commits the offense
of domestic assault in the third degree if he or she: (a)
Intentionally and knowingly causes bodily injury to his or her
intimate partner; or (b) places, by physical menace, his or her
intimate partner in fear of imminent bodily injury.” In this case,
Gay does not dispute the sufficiency of the evidence concern-
ing whether he intentionally and knowingly caused bodily
injury to Amy or placed Amy in fear of imminent bodily injury.
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Cite as 18 Neb. App. 163

Rather, Gay asserts that there is insufficient evidence to sustain
his conviction for third degree domestic assault because the
State did not present evidence to establish that Amy, the victim
of the assault, was his intimate partner.
[1,2] Section 28-323(7) defines an “intimate partner” as “a
spouse; a former spouse; persons who have a child in com-
mon whether or not they have been married or lived together
at any time; and persons who are or were involved in a dating
relationship.” Section 28-323(7) goes on to define a “dat-
ing relationship” as “frequent, intimate associations primar-
ily characterized by the expectation of affectional or sexual
involvement, but does not include a casual relationship or
an ordinary association between persons in a business or
social context.”
At trial, both Gay and Amy testified that they were dating
at the time of the assault. Amy testified that she and Gay had
been dating for about a year. Gay testified about the evolution
of their relationship. He testified that they initially contacted
each other on a social networking Web site and then began to
“hang out” with each other. Gay indicated that eventually, he
and Amy began a more serious relationship and started dating.
Gay’s and Amy’s families also testified that Gay and Amy were
in a dating relationship at the time of the assault. The fami-
lies referred to Gay and Amy as “boyfriend/girlfriend.” Gay’s
parents testified that Amy spent a lot of time at their home
with Gay and that she often would spend the night in their
home’s guestroom.
Both Gay and Amy testified that the argument in August
2007 was precipitated by Amy’s concerns that Gay had been
cheating on her. Gay and Amy testified that for approximately
1 month prior to the incident, they had been arguing about
whether Gay was cheating on Amy. Gay testified that Amy
had actually cheated on him early on in their relationship and
that Amy was a very jealous person who would not let him
“hang out with other females.” Gay testified that he and Amy
struggled to trust each other.
In Gay’s brief to this court, he argues that this evidence does
not demonstrate any affectional or sexual involvement between
Gay and Amy, but, rather, demonstrates that Gay and Amy had
166 	18 NeBRASKA AppeLLATe RepORTS

only a casual relationship. In support of this argument, Gay
highlights the testimony indicating that Amy slept in a guest-
room when she stayed overnight at Gay’s parents’ home. Gay
argues, “The only evidence at the trial relating to the relation-
ship was that [Gay and Amy] were prevented from ‘intimate’
relations by their parents who required them to sleep in sepa-
rate bedrooms when [Amy] spent the night at [Gay’s] house.”
Brief for appellant at 9 (emphasis in original).
We recognize that there is no evidence that Gay and Amy
had a sexual relationship. However, the language of § 28-323(7)
does not provide that proof of a sexual relationship is necessary
to establish a dating relationship between the victim and the
defendant. Rather, under § 28-323(7), a dating relationship
can be characterized by the expectation of either affectional
involvement or sexual involvement.
Here, there is no dispute that Gay and Amy were dating each
other or that they were considered to be “boyfriend/girlfriend.”
Furthermore, there is evidence of the expectation of affectional
involvement. The altercation was precipitated by Amy’s con-
cerns that Gay was dating other girls or cheating on her. Gay
testified that he had concerns that Amy had previously cheated
on him. Such evidence indicates that Gay and Amy considered
their relationship to be more than casual or ordinary. In fact,
Gay’s testimony about the progression of their relationship
demonstrates that initially the relationship was casual or social,
but that over time it developed into a more involved and serious
dating relationship.
When we view the evidence in the light most favorable to
the State, we find that there is sufficient evidence to demon-
strate that Gay and Amy were in a dating relationship at the
time of the assault and that as a result, Amy was Gay’s intimate
partner pursuant to § 28-323.
VI. CONCLUSION
We find that the State presented sufficient evidence to estab-
lish that Amy, the victim of the assault, was Gay’s intimate
partner. As such, we find sufficient evidence to support Gay’s
conviction for third degree domestic assault. We affirm.
affIrMed.
STATe v. GAy 	167
Cite as 18 Neb. App. 163