State v. Olbricht

294 Neb. 974

885 N.W.2d 699

State of Nebraska, appellee,

v.Cody Olbricht, also known as Cody Olbrich, appellant.

No. S-15-404.

Supreme Court of Nebraska.

Filed October 14, 2016.

Leonard G. Tabor, Gering, for appellant.

Douglas J. Peterson, Attorney General, and George R. Love, Lincoln, for appellee.

Heavican, C.J., Wright, Miller–Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

Stacy, J.

NATURE OF CASE

After a bench trial in the district court for Scotts Bluff County, Cody Olbricht, also known as Cody Olbrich, was convicted of knowing and intentional child abuse resulting in serious bodily injury. The Nebraska Court of Appeals reversed the conviction and vacated the sentence, holding the evidence was insufficient to support the conviction.¹ We granted the State's petition for further review. Because we conclude the evidence was sufficient to sustain the conviction, we reverse the Court of Appeals' decision and remand the matter with directions to affirm Olbricht's conviction and sentence, as modified.

FACTS

On September 28, 2014, 3–year–old A.M. was admitted to an emergency room in Scottsbluff, Nebraska, with bruising on her face, torso, arms, and legs. A.M. was not interactive, appeared sleepy, and had bleeding in the white part of her left eye. Due to A.M.'s symptoms, doctors suspected she was suffering from a subdural hemorrhage (brain bleed). A CAT scan revealed a brain bleed and infarct in A.M.'s brain. Further examination revealed A.M. had a laceration on the left lobe of her liver. She was transferred by helicopter to a hospital in Denver, Colorado, for further treatment.

The emergency room doctor in Scottsbluff suspected A.M. had been abused and notified the authorities. Olbricht, the live-in boyfriend of A.M.'s mother, was subsequently charged with knowing and intentional child abuse resulting in serious bodily injury.² The operative information alleged the crime occurred “[o]n or about March, 2014 through September, 2014.” Olbricht waived a jury trial, and the matter was tried to the court.

EVIDENCE AT TRIAL

Cassandra Miller, A.M.'s mother, testified for the State. In addition to testifying about the events leading up to A.M.'s hospitalization, Miller testified about prior injuries A.M. had received while in Olbricht's care. According to Miller, in March 2014, A.M. sustained a cut to her bottom lip while in Olbricht's care. And in separate instances in September, A.M. incurred burns to her lips and face, various bruises on her cheek and hips, and retinal bleeding while in Olbricht's care. There were no rule 404³ objections to this testimony.

On the evening of September 27, 2014, the day before A.M. was admitted to the hospital, Miller and Olbricht took A.M. to a fast-food restaurant and then to a babysitter. A.M. vomited after leaving the restaurant. Miller changed A.M.'s clothes, and then she and Olbricht left A.M. with the babysitter for the night.

The babysitter noticed A.M. had bruises on her face, neck, and back. According to the babysitter, A.M. was lethargic and vomited several more times that night. The babysitter took a photograph of A.M.'s bruises and sent it to A.M.'s grandmother, Lynelle Pahl. Pahl was at work when she received the photograph via text message and said she would take A.M. to the hospital first thing in the morning if A.M. was not better. The babysitter also testified, over objection, that when she informed A.M. that her grandmother was going to pick her up, A.M. became very upset and seemed scared to go home:

She seemed terrified and she didn't want to go home. She kept expressing to me she didn't want to go home.

....

... And then when I asked her if somebody was hurting her at home and she explained to me that, yes, and I said who and she said, “daddy.” And I said, “where does daddy hurt you?” She pointed to her shin and she pointed to her foot. And I had rubbed her head and I felt lumps all along her head and I said, “did he hit your head, too,” and she said yes.

The evidence showed A.M. referred to Olbricht as “daddy.”

A.M.'s regular daycare provider testified that between March and September 2014, A.M. regularly came to daycare with bruises on her face, arms, back, and legs. When Olbricht came to pick up A.M. from daycare, A.M. would become upset and cry, because she did not want to go home with him. In April, after noticing A.M.'s face was “really swollen,” seeing bruises down her back, and seeing a distinctive mark across her left buttocks, A.M.'s daycare provider called the Department of Health and Human Services to report her concerns. The provider testified that after A.M. was released from the hospital into Pahl's care, she has had no injuries or bruises.

Two doctors testified for the State. Dr. Jeffrey Salisbury, A.M.'s emergency room doctor, testified that the subdural hemorrhage and infarct in A.M.'s brain and the laceration to A.M.'s liver were injuries that presented a substantial risk of death. According to Dr. Salisbury, there was no way to tell exactly how old A.M.'s brain injury was, but it was his opinion that the brain injury was “acute,” meaning it could have been anywhere from 5 minutes to 2 weeks old.

Dr. Andrew Sirotnak, a forensic pediatrician and a member of the medical team that treated A.M. at the hospital in Denver, testified that in his opinion, A.M.'s brain injury occurred “a day or two” or a “few days” prior to her hospitalization. Dr. Sirotnak testified that A.M.'s brain injury was “clearly something that was inflicted” and that the injury was likely the result of being “thrown from something or thrown by something.” Dr. Sirotnak could not tell when the liver injury occurred. Dr. Sirotnak diagnosed A.M. as a “battered child,” meaning “a child that's been injured in a multi system manner over time.” According to Dr. Sirotnak, A.M.'s injuries were likely nonaccidental because some occurred over soft tissue and others displayed a bruising pattern that indicated they were inflicted with an object. It was Dr. Sirotnak's opinion that A.M. had been hit with a wire hanger because the bruises on her legs and hip were triangular in shape. With respect to what caused the liver laceration, Dr. Sirotnak testified it was likely caused by blunt trauma akin to the amount of force seen in a car accident. Dr. Sirotnak opined that based on A.M.'s medical history, there was no accidental explanation for her liver injury.

At the close of the State's case, Olbricht moved for a directed verdict. The court overruled the motion, and Olbricht proceeded to call numerous family members and acquaintances who testified that A.M. was always healthy, happy, and clean and that Olbricht had never abused her. Olbricht also called Miller to testify for the defense. Miller testified that, in addition to the times A.M. was injured while in Olbricht's care, A.M. also had been injured while in Miller's care. Miller testified that in August or September 2014, she and Olbricht were home when A.M. fell down the stairs. Miller also testified that on September 16, she was with A.M. at the park when A.M. was hit in the head by a swing.

Olbricht testified in his own defense. He did not dispute that A.M. had a history of prior injuries while in his care as described by other witnesses. Instead, Olbricht denied that he caused A.M.'s injuries and offered a variety of explanations for how the injuries occurred, all of which either suggested A.M. was responsible for her own injuries or another child had inflicted the injuries.

The district court found the brain bleed and the liver laceration created a substantial risk of death and were serious bodily injuries. The court recounted the evidence and concluded that the injuries were nonaccidental and that “[t]he majority, if not all, of [A.M.'s] documented injuries occurred when she was in the sole physical care of ... Olbricht.” Based on this evidence, the court found Olbricht guilty of knowing and intentional child abuse resulting in serious bodily injury.

After the court imposed sentence, Olbricht timely appealed, assigning that the trial court erred in (1) finding him guilty, (2) denying his motion for directed verdict, (3) overruling his evidentiary objections, (4) overruling his motion for new trial, and (5) imposing an excessive sentence.

COURT OF APPEALS

The Court of Appeals held the evidence was insufficient to support Olbricht's conviction, “because the evidence presented never showed, directly or circumstantially, that A.M.'s serious bodily injuries occurred during a discrete timeframe when Olbricht was the only adult in her presence.”⁴ That court laid out its reasoning as follows:

According to the evidence at trial, the timeframe in which A.M.'s serious bodily injuries were inflicted was broad. Specifically, Dr. Salisbury testified that A.M.'s brain injury was “acute,” meaning it could have occurred anywhere from 5 minutes to 2 weeks before she came to the emergency room. Dr. Sirotnak testified that A.M.'s brain injury occurred within “a day or two” of her hospitalization. Neither doctor provided a specific timeframe in which the liver injury occurred.

A.M. was not in Olbricht's sole care for the week or the “day or two” before she was hospitalized. For example, Miller was with both Olbricht and A.M. during the afternoon and evening of September 27, 2014, the day before A.M. was hospitalized. Additionally, A.M. was alone with Pahl for approximately an hour 6 days before her hospitalization. Furthermore, the night before her hospitalization, A.M. was in the care of the babysitter and neither Olbricht nor Miller was present. Therefore, pursuant to Dr. Sirotnak's opinion that the injury occurred within “a day or two” of A.M.'s hospitalization, Olbricht, Miller, and the babysitter cared for A.M. during the relevant timeframe. Pursuant to Dr. Salisbury's opinion that A.M.'s brain injury was between 5 minutes and 2 weeks old, Olbricht, Miller, the babysitter, and Pahl all cared for A.M. during the relevant timeframe. With respect to A.M.'s liver injury,

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