State v. Pauly

311 Neb. 418

972 N.W.2d 907

STATE of Nebraska, appellant and cross-appellee,

v.Patrick M. PAULY, appellee and cross-appellant.

Nos. S-21-401

S-21-409.

Supreme Court of Nebraska.

Filed April 22, 2022

R. Scott Earl, Deputy Sarpy County Attorney, for appellant.

Marcus A. Sladek, of Dornan, Troia, Howard, Breitkreutz, Conway & Dahlquist, P.C., L.L.O., for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.

Funke, J.

I. INTRODUCTION

Patrick M. Pauly was convicted of four counts of first degree sexual assault and sentenced to concurrent terms of 5 years’ probation for each conviction. The State appeals, arguing the district court handed down excessively lenient sentences. Pauly cross-appeals, arguing the district court erred in denying his motion for directed verdict, motion to dismiss, and proposed jury instructions. For reasons set forth herein, we affirm Pauly's convictions and sentences.

II. BACKGROUND

In May 2019, the State filed an information charging Pauly, who was born in May 1997, with four counts of first degree sexual assault under Neb. Rev. Stat. § 28-319 (Reissue 2016). The information was filed the day before Pauly's 22nd birthday. An amended information was filed in July 2020, still alleging four counts of first degree sexual assault under § 28-319, but further alleging the incidents occurred between January 1, 2008, and January 1, 2016.

1. TRIAL

The victim, K.H., was 15 years old at the time of trial in October 2020. Pauly's mother babysat K.H. and K.H.’s brother, J.H., when they were between the ages of 4 and 12. K.H. testified that she was a repeat victim of sexual assault at the hands of Pauly. Although she could not recall the exact number of times she was assaulted, she was able to testify to four separate incidents where Pauly assaulted her.

(a) Assault No. 1

K.H. testified that the first incident happened in Pauly's bedroom, located in the basement of the Pauly residence. At that time, K.H. and J.H. were in Pauly's bedroom when Pauly asked J.H. to get him a soda. After J.H. left the room, Pauly told K.H. to take her pants off and lie on the bed. Pauly then closed the door, removed his clothing, lay on top of her, and inserted his penis into her vagina. On cross-examination, K.H. testified that she thought she was around 7 years old at the time, but responded "[m]aybe" when defense counsel asked her if she was 5 or 6 years old.

(b) Assault No. 2

The next incident occurred while K.H. and J.H. were watching Pauly play video games in his bedroom which was, at this point, located in the upstairs area of the home. Pauly asked J.H. to look out the window to see if anyone was there, then told K.H. to "pull [her] pants down." Pauly then pulled his own pants down, lay on top of her, and put his penis in her vagina. He began moving up and down after penetrating her. On cross-examination, K.H. testified that this incident lasted for about a minute while J.H. was a foot away. K.H. could not recall how much time had passed between the first and second incident, but thought that the second incident occurred a couple of months after the first. J.H. testified that he did not hear anything while standing at the window.

(c) Assault No. 3

The third incident occurred when Pauly penetrated K.H. with his finger. K.H. testified that Pauly had a "Halloween finger" he placed over his own finger and told K.H. that "this is going to feel good." Pauly instructed K.H. to take off her pants and lie on the bed. He inserted the "Halloween finger" into her vagina, causing K.H. to say "ow." As she began to scream, Pauly covered her mouth. K.H. could not say when this incident happened or how old she was at the time, and she could not recall whether this incident happened before or after the second incident.

(d) Assault No. 4

The next incident occurred when Pauly's mother and J.H. went to the airport. Pauly told K.H. to take her pants off, and then he lay on top of her and put his penis in her vagina. K.H. also testified that on another occasion, Pauly told her to perform oral sex on him. K.H. could not recall how old she was when this incident occurred.

(e) Motion for Directed Verdict

At the close of the State's case, counsel for Pauly made an oral motion for directed verdict. Counsel also made a "motion to quash" for lack of jurisdiction. Counsel argued that pursuant to Neb. Rev. Stat. §§ 43-246.01(1)(d) and 43-247(2) (Reissue 2016), the trial court lacked subject matter jurisdiction over any allegations that occurred when Pauly was between 11 and 14 years old. The court denied the motion because "matters such as [a] motion to quash, [a] constitutional challenge to the face [of] the statute, or as it's applied ... are ... waived once we [start] the trial." The court acknowledged that Pauly may have a "very good argument [for appeal]" but that those matters needed to be addressed in a pretrial hearing. Pauly argued that he did not provide notice to the State because he was not aware that the victim was going to testify that she may have been 5 or 6 years old at the time of the offenses (which would put Pauly under 14 years of age at the time). Aside from the jurisdictional issue, the court overruled the motion for directed verdict finding there was prima facie evidence of penetration without consent and prima facie evidence regarding whether Pauly knew or should have known that the victim was incapable of resisting. After the motions were denied, Pauly put on evidence by calling his mother as a witness.

(f) Testimony of Pauly's Mother

Pauly's mother testified that when she would leave to pick up her sister from the airport, she would always take both K.H. and J.H. with her, and that she would never leave just one of them at home. Pauly's mother also testified that during the time Pauly's bedroom was located in the basement, K.H. and J.H. were not allowed to go to the basement. Pauly's mother further testified that Pauly did not play video games in his basement/bedroom because he did not have a television or video game system down there. She also claimed that there was "no way" Pauly could have closed and latched the basement door because the door was too large for the doorframe and would not shut.

(g) Jury Instructions and Verdict

Pauly requested the inclusion of two jury instructions regarding the date when the alleged incidents occurred. The first proposed jury instruction stated: "For each count, you must determine that the act took place on or after May 30, 2011. Source: Neb. Rev. Stat. 43-261.01 [sic] and Neb. Rev. Stat. 43-247." The second proposed jury instruction stated:

The material elements of the crimes of four counts of First degree sexual assault are:

1. The defendant did subject K.H. to sexual penetration without consent of the victim, and/or when he knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct.

2. The act took place on or after May 30, 2011 through January 1, 2016.

3. The act took place in Sarpy County, Nebraska. If you decide that the State proved each element beyond a reasonable doubt, then you must find the defendant guilty. Otherwise, you must find the defendant not guilty.

The court denied Pauly's requested jury instructions and the case was submitted to the jury, which found Pauly guilty on all four counts of first degree sexual assault.

Pauly then made a motion for a judgment notwithstanding the verdict, reasserting his jurisdictional argument under §§ 43-246.01 and 43-247, and also arguing sufficiency of the evidence. The court overruled the motion and ordered Pauly to undergo a presentence investigation and a psycho-sexual evaluation.

(h) Motion for New Trial

Pauly timely filed a motion for reconsideration and/or new trial, arguing that the denial of his motion to quash, the denial of his proposed jury instructions, and the denial of his motion for judgment notwithstanding the verdict were all errors of law that materially affected his substantial right to a fair trial. His motion was largely based on his prior jurisdictional arguments under §§ 43-246.01(1)(d) and 43-247. The court overruled the motion for new trial.

2. PRESENTENCE INVESTIGATION REPORT

The presentence investigation report showed that Pauly had no criminal record and that he had never been sentenced to a term of probation or to a period of incarceration. Pauly reported only one previous sexual encounter with his then-girlfriend when they were in high school. Pauly admitted that he has multiple social media accounts, but he denied ever having a sexual conversation on any of those platforms. Pauly was administered the "Vermont Assessment of Sex Offender Risk-2," which is used to assess recidivism risk among adult males who have been convicted of at least one qualifying sex offense. He scored in the "Low Risk Range," which estimates a recidivism rate of 2.6 percent in a period of 5 years. Pauly was also administered the "Sex Offender Treatment Intervention and Progress Scale," which is used to assess risk, treatment, supervision needs, and progress among adult male sex offenders. Pauly was given a combined static and dynamic risk of "Low," with an estimated recidivism rate of 0.5 percent in a 1-year period and 1.4 percent in a 3-year period.

A clinical psychological evaluation concluded that Pauly could be safely managed in the community with appropriate safeguards. The evaluation recognized that Pauly was around 14 years of age at the time of the offenses and that since age 14, Pauly has not engaged in any other known or reported forms of sexual misconduct. According to the evaluation, Pauly does not have a significant history of antisocial behaviors, of violence, or of any other instances of sexual misconduct.

3. SENTENCING

At sentencing, the State argued for a period of incarceration, while Pauly argued he was a good candidate for probation. In sentencing Pauly, the court referenced Neb. Rev. Stat. § 29-2204.02(6) (Reissue 2016),...