State v. Norman

• Decision Date: 06 January 2012
• Docket Number: No. S–10–888.,S–10–888.
• Citation: 808 N.W.2d 48,282 Neb. 990
• Parties: STATE of Nebraska, appellee, v. Chad NORMAN, appellant.
• Court: Nebraska Supreme Court

282 Neb. 990

808 N.W.2d 48

STATE of Nebraska, appellee,

v.Chad NORMAN, appellant.

No. S–10–888.

Supreme Court of Nebraska.

Jan. 6, 2012.

Syllabus by the Court

1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the determination made by the trial court.

2. Constitutional Law: Due Process. The determination of whether the procedures afforded an individual comport with constitutional requirements for procedural due process presents a question of law.

3. Judgments: Appeal and Error. On a question of law, an appellate court is obligated to reach a conclusion independent of the court below.

4. Pretrial Procedure: Appeal and Error. The trial court has broad discretion in granting discovery requests and errs only when it abuses its discretion.

5. Constitutional Law: Appeal and Error. A constitutional issue not presented to or passed upon by the trial court is generally not appropriate for consideration on appeal.

6. Criminal Law: Convicted Sex Offender: Notice. Before determining that a defendant convicted of a crime not sexual in nature is subject to sex offender registration pursuant to Neb.Rev.Stat. § 29–4003(1)(b)(i)(B) (Cum.Supp.2010), the court must provide notice and a hearing and must make the finding whether sexual penetration or sexual contact occurred in connection with the incident that gave rise to the conviction based on the record and the hearing.

7. Statutes: Presumptions: Legislature: Intent: Appeal and Error. In construing a statute, appellate courts are guided by the presumption that the Legislature intended a sensible rather than absurd result in enacting the statute.

8. Statutes: Legislature: Intent. An appellate court will place a sensible construction upon a statute to effectuate the object of the legislation, as opposed to a literal meaning that would have the effect of defeating the legislative intent.

9. Statutes: Intent. In construing a statute, a court must look to the statutory objective to be accomplished, the evils and mischiefs sought to be remedied, and the purpose to be served, and then must place on the statute a reasonable or liberal construction that best achieves the statute's purpose, rather than a construction that defeats the statutory purpose.

10. Constitutional Law: Statutes. It is the duty of a court to give a statute an interpretation that meets constitutional requirements if it can reasonably be done.

11. Due Process. When an individual claims he or she is being deprived of a liberty interest without due process, the claim is examined in three stages. First, a determination must be made that there is a liberty interest at stake. Second, having found a liberty interest, the court must determine what procedural safeguards are required. Third, the facts of the case are examined to ascertain whether there was a denial of that process which was due.

12. Criminal Law: Convicted Sex Offender: Presentence Reports: Due Process. Neb.Rev.Stat. § 29–4003(1)(b)(i)(B) (Cum.Supp.2010) provides that the court's finding shall include consideration of the factual basis for a plea-based conviction and information contained in the presentence report. However, the statute does not limit the court's consideration to such sources and, because a liberty interest is at stake, a meaningful hearing requires consideration of evidence at the hearing as well as the factual basis and the presentence report.

13. Criminal Law: Convicted Sex Offender: Proof. The finding required under Neb.Rev.Stat. § 29–4003(1)(b)(i)(B) (Cum.Supp.2010) should be established by clear and convincing evidence.

Michael J. Synek for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

MILLER–LERMAN, J.

NATURE OF CASE

Chad Norman pled no contest to third degree assault, Neb.Rev.Stat. § 28–310 (Reissue 2008), and was sentenced by the district court for Buffalo County to probation for 2 years and jail for 30 days with credit for time served. After a hearing, the court also ordered Norman to register under Nebraska's Sex Offender Registration Act (SORA) pursuant to Neb.Rev.Stat. § 29–4003(1)(b)(i)(B) (Cum.Supp.2010). Norman appeals the portion of his sentence which ordered him to register, because he claims he was denied due process. We find merit to this claim and reverse the registration order and remand for resentencing in a manner that comports with procedural due process as outlined in this opinion. We find no merit to Norman's remaining assignments of error.

STATEMENT OF FACTS

On August 20, 2009, the State filed an information charging Norman with one count of third degree sexual assault of a child, in violation of Neb.Rev.Stat. § 28–320.01 (Reissue 2008). The State alleged that in February 2009, Norman had subjected T.A.W., born in March 1998, to sexual contact. Norman pled not guilty.

On April 22, 2010, Norman filed a motion to take the depositions of certain witnesses and for discovery of certain information. Norman sought, inter alia, to depose three persons who had treated T.A.W. for behavioral disorders and to discover T.A.W.'s juvenile and residential treatment records maintained by the Nebraska Department of Health and Human Services. The court sustained portions of the motion but, on the basis of physician-patient and counselor-client privileges, denied his requests to depose the three counselors and to discover treatment and juvenile records compiled by the Department of Health and Human Services.

Thereafter, Norman and the State reached a plea agreement pursuant to which the State filed an amended information charging Norman with one count of third degree assault in violation of § 28–310. Section 28–310 provides:

(1) A person commits the offense of assault in the third degree if he:

(a) Intentionally, knowingly, or recklessly causes bodily injury to another person; or

(b) Threatens another in a menacing manner.

(2) Assault in the third degree shall be a Class I misdemeanor unless committed in a fight or scuffle entered into by mutual consent, in which case it shall be a Class II misdemeanor.

The information tracked the language of § 28–310(1)(a) and (b).

Norman offered to plead no contest to this amended charge at a plea hearing held June 16, 2010. When questioning Norman prior to accepting his plea, the court informed Norman that the State had advised the court that if a conviction were entered, the State would request, based upon the factual basis for the plea, that the court require Norman to register pursuant to SORA. Norman replied that he understood.

The State provided the following factual basis:

[O]n July 9th of 2009, officers were dispatched to [a certain address] to have contact with ... the mother of the victim identified in the complaint as [T.A.W.], date of birth [March 1998]. During this contact, [T.A.W.'s mother] stated that her son had told her that he had been sexually assaulted by ... Norman.

An interview was conducted with the minor child. He stated that [Norman] had touched his penis. Then stated that [Norman] told him or threatened him by saying not to tell anyone or he would hurt his family.

Those events occurred in Buffalo County, Nebraska.

After recitation of the factual basis, the court clarified that the third degree assault charge was “based upon the threat,” to which the State agreed. The State added that “[t]here was no physical injury to the child ....” Finding that an adequate factual basis had been established for conviction of third degree assault based on threats made in a menacing manner, the court accepted Norman's plea and found Norman guilty of third degree assault.

Because of the potential for SORA registration, the court conducted an expansive sentencing hearing. At the sentencing hearing held August 2, 2010, the State offered two exhibits in support of its request to require Norman to register under SORA. Norman did not object to the stipulated redacted version of the police reports. The police reports stated that T.A.W. had told officers that Norman had touched his penis on more than one occasion. Norman objected to the State's offer of a copy of a deposition of T.A.W. taken by Norman's attorney. The court found that the relevant portions of the deposition were cumulative to statements in the police reports and sustained the objection.

Norman later offered a redacted version of the deposition of T.A.W. as a rebuttal to statements in the police reports. The State objected to admission of the redacted version of the deposition. In the redacted version, T.A.W. stated that he had told police Norman “sexually abused” him and that he had heard of sexual abuse because “[a] lot of my friends have been sexually abused”; upon further questioning, T.A.W. stated that only one friend had talked to him about being sexually abused. The court received Norman's redacted version of the deposition but also received the full deposition that had been offered by the State “to the extent that [it] clarifies or places into context the contents of” the redacted version.

Norman offered two additional exhibits pertaining to SORA registration. The court sustained the State's relevance objection to Norman's offer of a copy of the record of T.A.W.'s juvenile proceedings, but the court received a redacted version of a deposition of T.A.W.'s mother in which she stated, inter alia, that T.A.W. had been removed from her home and was a ward of the State and that T.A.W. had behavioral problems. She further stated that Norman had lived with her and that she continued to ask him for money after he moved out. She also described the circumstances under which T.A.W. told her that Norman had sexually abused him.

Norman testified at the sentencing hearing. He stated that he had lived with T.A.W.'s mother and her children, that both T.A.W. and his m...