State v. Gaskill

STATE v. GASKILL 	605
Cite as 284 Neb. 605
State of NebraSka, appellee, v.
timothy GaSkill, appellaNt.
824 N.W.2d 655
Filed November 9, 2012. 	No. S-11-528.
1. Appeal and Error. Consideration of plain error occurs at the discretion of an
appellate court.
2. ____. Plain error may be found on appeal when an error unasserted or uncom-
plained of at trial, but plainly evident from the record, prejudicially affects a
litigant’s substantial right and, if uncorrected, would result in damage to the
integrity, reputation, and fairness of the judicial process.
3. Verdicts: Appeal and Error. Only where evidence lacks sufficient probative
value as a matter of law may an appellate court set aside a guilty verdict as
unsupported by evidence beyond a reasonable doubt.
Appeal from the District Court for Lancaster County: robert
r. otte, Judge. Motion for rehearing sustained. See 284 Neb.
236, 817 N.W.2d 754 (2012), for original opinion. Original
opinion withdrawn. Judgment reversed and vacated, and cause
remanded with directions to dismiss.
Joshua W. Weir, of Dornan, Lustgarten & Troia, P.C., L.L.O.,
for appellant.
Jon Bruning, Attorney General, and Stacy M. Foust for
appellee.
heavicaN, c.J., WriGht, coNNolly, StephaN, mccormack,
and miller-lermaN, JJ.
per curiam.
In an opinion filed on July 27, 2012,1 we affirmed Timothy
Gaskill’s Class IV felony conviction2 based on his failure
to comply with certain registration provisions of the Sex
Offender Registration Act (SORA).3 We subsequently sus-
tained Gaskill’s motion for rehearing and ordered the case
submitted without further oral argument. We now withdraw
1 State v. Gaskill, ante p. 236, 817 N.W.2d 754 (2012).
2 See Neb. Rev. Stat. § 29-4011(1) (Cum. Supp. 2012).
3 Neb. Rev. Stat. §§ 29-4001 through 29-4014 (Reissue 2008 & Cum. Supp.
2012).
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

606 	284 NEBRASKA REPORTS
our prior opinion, reverse and vacate Gaskill’s conviction and
sentence, and remand the cause to the district court with direc-
tions to dismiss.
BACKGROUND
In April 1995, at the age of 18, Gaskill was convicted of
attempted first degree sexual assault. He was sentenced to
probation for a period of 2 years. He was still on probation on
January 1, 1997, when the original SORA was enacted.4 SORA
applied to Gaskill because he had been convicted of a registra-
ble offense prior to January 1, 1997, and remained “under pro-
bation or parole” as a result of that conviction.5 SORA required
Gaskill to register for 10 years from the date he was released
from probation,6 which occurred in April 1997. Pursuant to the
risk assessment instrument then utilized by the Nebraska State
Patrol, Gaskill was determined to be at low risk to reoffend and
was classified as a “Level 1 offender,” which meant that his
registration was not publicly disseminated on the Nebraska sex
offender registry Web site.
In late October 2009, Gaskill received a letter from the sex
offender registry advising him that under 2009 amendments to
SORA, which would become effective on January 1, 2010, he
would be considered a “lifetime registrant.” Pursuant to these
2009 SORA amendments, Gaskill’s name, address, and pho-
tograph were disseminated on the sex offender registry Web
site on January 1, 2010. At that time, Gaskill was living with
his wife and children at a Lincoln apartment while pursuing
graduate studies. On April 1, he received a notice to vacate the
apartment. The apartment manager explained that Gaskill was
being evicted because other tenants complained after learning
he was on the Nebraska sex offender registry.
After spending several nights in motels, Gaskill and his fam-
ily found another residence in Lincoln and began residing there
on April 10, 2010. On May 1, Gaskill was contacted by the
Lancaster County sheriff’s office and informed that he had not
4 1996 Neb. Laws, L.B. 645.
5 See § 29-4003(c) (Supp. 2000).
6 See § 29-4005(1) (Supp. 2000).

STATE v. GASKILL 	607
Cite as 284 Neb. 605
updated his registration. He immediately went to the sheriff’s
office to do so. After being interviewed, he was arrested and
later charged in the district court for Lancaster County with
failing to report his change of address as required by SORA,7
a Class IV felony.8
Gaskill filed a motion to quash the information, asserting
that the 2009 amendments to SORA as applied retroactively
to him violated his right to due process and constituted ex
post facto legislation. During a hearing on the motion, counsel
for Gaskill and the State stipulated that Gaskill was subject
to SORA. The district court overruled the motion to quash,
and Gaskill entered a plea of not guilty. After a stipulated
bench trial at which he preserved his constitutional challenges,
Gaskill was found guilty and sentenced to pay a fine of $250
and costs of the action and to serve 200 hours of community
service. He filed a timely appeal.
In his brief on appeal, Gaskill assigned that the district
court erred in rejecting his constitutional challenges to SORA
as amended in 2009. He made no contention that he was not
subject to SORA at the time of the charged offense. But in its
brief, the State advised the court as follows:
This Court should be aware that Gaskill is no longer
required to register as a sex offender. See http://www.nsp.
state.ne.us/sor/find.cfm. Because his conviction for vio-
lating SORA is at issue, the State will address his argu-
ments. However, any as applied arguments that Gaskill
makes as to future registration obligations should be
rendered moot.9
When questioned about this statement during oral argument,
counsel for the State replied that she had confirmed with the
Nebraska State Patrol that Gaskill was no longer required to
register. When asked why this was so, counsel indicated that
there had been a “miscalculation” by the State Patrol. She did
not indicate the precise nature of the miscalculation, when
7 § 29-4004(9) (Cum. Supp. 2012).
8 § 29-4011(1) (Cum. Supp. 2012).
9 Brief for appellee at 12.

608 	284 NEBRASKA REPORTS
it had been discovered, or when Gaskill was notified that he
was no longer required to register. In our original opinion,
we rejected Gaskill’s constitutional challenges and affirmed
his conviction.10
Gaskill moved for rehearing. In his brief in support of the
motion, he argued for the first time that his obligation to regis-
ter under SORA ended in 2007 at the expiration of his original
10-year registration requirement. He contended that “[t]his
explains why the State informed the Court that Gaskill was no
longer on the Sex Offender Registry in [the State’s] Brief.”11
He concluded that because he “was not required to register
pursuant to SORA” on May 1, 2010, the date of the alleged
offense, “his conviction should be vacated.”12
When the State elected not to file a response to the motion
for rehearing, we ordered it to do so. We directed that the
response should include a representation by the State as to (1)
the date on which the Nebraska State Patrol determined that
Gaskill was “no longer required to register as a sex offender”
under SORA and the date that the Attorney General’s office
was first advised of this determination; (2) the specific reason
for that determination, including an explanation of why Gaskill
was no longer considered to be a “lifetime registrant”; and
(3) whether, according to the State’s most recent calculation,
Gaskill was subject to SORA as of May 1, 2010, the date of
the offense underlying the conviction which is the subject of
this appeal. In addition, we directed the State to address the
issue of whether its most recent calculation of the duration
of SORA’s application to Gaskill requires that his conviction
be vacated.
In its response, the State advised this court that the Nebraska
State Patrol determined that Gaskill was no longer required to
register as a sex offender on December 23, 2011, and that the
State Patrol “voluntarily removed Gaskill from the registry in
late December 2011 due to a miscalculation of willful noncom-
pliance time.” The State further represented:
10 State v. Gaskill, supra note 1.
11 Brief for appellant in support of motion for rehearing at 2.
12 Id.

STATE v. GASKILL 	609
Cite as 284 Neb. 605
Because the amount of willful noncompliance time was
not raised below and because the parties actually stipu-
lated at the hearing on the motion to quash that Gaskill
was subject to SORA, there was no reason for the State
to question that it was the properly calculated amount
of willful noncompliance time that required Gaskill to
register as of May 1, 2010, the date of the offense
underlying the conviction which is the subject of this
appeal. However, in the interest of full disclosure, the
State advised this Court in brief and at oral argument
that Gaskill was no longer required to register as a sex
offender not knowing when that requirement ceased. It
was not because the State knew that Gaskill was not sub-
ject to SORA’s registration requirements after 2007 that it
“informed the Court that Gaskill was no longer on the Sex
Offender Registry.”
The State further represented that it was not until preparing its
response to the motion for rehearing, as directed by this court,
that it determined from the State Patrol that “the ten-year reg-
istration period for Gaskill, beginning April of 1997, should
not have been tolled and should have ended in April of 2007.”
Further, the State represented that “Gaskill was not subject to
SORA on May 1, 2010.”
Because the State’s response did not address the question
of whether Gaskill’s conviction should be vacated as a result
of this information, we entered an order directing the State to
show cause why that should not occur. The State responded
that it had “no additional response to the order to show cause
beyond the comments made at oral argument and the prior
response to the Court’s questions.”
STANDARD OF REVIEW
[1-3] Consideration of plain error occurs at the discre-
tion of an appellate court.13 Plain error may be found on
appeal when an error unasserted or uncomplained of at trial,
but plainly evident from the record, prejudicially affects a
13 State v. Britt, 283 Neb. 600, 813 N.W.2d 434 (2012); State v. Young, 279
Neb. 602, 780 N.W.2d 28 (2010).

610 	284 NEBRASKA REPORTS
litigant’s substantial right and, if uncorrected, would result in
damage to the integrity, reputation, and fairness of the judi-
cial process.14 Only where evidence lacks sufficient probative
value as a matter of law may an appellate court set aside a
guilty verdict as unsupported by evidence beyond a reason-
able doubt.15
ANALYSIS
This case presents the rather unusual circumstance of a
reversible error which is plainly evident from a record made
not in the trial court but on appeal. But it is plain error none-
theless. Based upon the information which the State has pro-
vided in the course of this appeal, it was impossible for Gaskill
to have committed the offense for which he was charged and
convicted, because he was not subject to SORA on May 1,
2010, and therefore had no legal obligation to report his change
of address to the Nebraska sex offender registry. Thus, it is
apparent as a matter of law that Gaskill did not commit the
charged offense.
It is regrettable that the State Patrol miscalculated the time
period that Gaskill was subject to SORA. It is unfortunate
that neither counsel discovered the full nature and signifi-
cance of the miscalculation sooner. But based upon the record
now before us, it would be untenable for this court to permit
Gaskill’s conviction to stand. To do so would have an obvious
prejudicial effect upon his substantial right in the presump-
tion of innocence and would result in even greater damage
to the integrity, reputation, and fairness of the judicial proc-
ess. Accordingly, we exercise our discretionary authority to
note plain error and reverse and vacate Gaskill’s conviction
and sentence.
CONCLUSION
For the reasons discussed, we withdraw our opinion filed
on July 27, 2012. We reverse and vacate the judgment of
14 State v. Williams, 282 Neb. 182, 802 N.W.2d 421 (2011); State v. Simnick,
279 Neb. 499, 779 N.W.2d 335 (2010).
15 State v. Ross, 283 Neb. 742, 811 N.W.2d 298 (2012); State v. McCave, 282
Neb. 500, 805 N.W.2d 290 (2011).

STATE v. KITT 	611
Cite as 284 Neb. 611
conviction and sentence, and we remand the cause to the dis-
trict court with directions to dismiss.
JudGmeNt reverSed aNd vacated, aNd cauSe
remaNded With directioNS to diSmiSS.
caSSel, J., not participating.
State of NebraSka, appellee, v.
WeSley e. kitt, appellaNt.
823 N.W.2d 175
Filed November 9, 2012. 	No. S-11-629.
1. Rules of Evidence. In proceedings where the Nebraska Evidence Rules apply, the
admissibility of evidence is controlled by the Nebraska Evidence Rules; judicial
discretion is involved only when the rules make such discretion a factor in deter-
mining admissibility.
2. Rules of Evidence: Appeal and Error. Where the Nebraska Evidence Rules
commit the evidentiary question at issue to the discretion of the trial court, the
admissibility of evidence is reviewed for an abuse of discretion.
3. Judges: Words and Phrases. A judicial abuse of discretion exists only when
the reasons or rulings of a trial judge are clearly untenable, unfairly depriving
a litigant of a substantial right and denying a just result in matters submitted
for disposition.
4. Constitutional Law: Witnesses: Appeal and Error. An appellate court
reviews de novo a trial court’s determination of the protections afforded by the
Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article
I, § 11, of the Nebraska Constitution and reviews the underlying factual determi-
nations for clear error.
5. Criminal Law: Convictions: Evidence: Appeal and Error. In reviewing a suf-
ficiency of the evidence claim, whether the evidence is direct, circumstantial,
or a combination thereof, the standard is the same: 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. 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 ele-
ments of the crime beyond a reasonable doubt.
6. Rules of Evidence. When a Nebraska Evidence Rule is substantially similar to a
corresponding federal rule of evidence, Nebraska courts will look to federal deci-
sions interpreting the corresponding federal rule for guidance in construing the
Nebraska rule.
7. Rules of Evidence: Hearsay: Witnesses: Proof. For purposes of hearsay analy-
sis, it is within the discretion of the trial court to determine whether the unavail-
ability of a witness under Neb. Evid. R. 804, Neb. Rev. Stat. § 27-804 (Reissue
2008), has been shown.