State v. Payan

Decision Date01 May 2009
Docket NumberNo. S-08-598.,S-08-598.
Citation277 Neb. 663,765 N.W.2d 192
PartiesSTATE of Nebraska, appellee, v. Abram L. PAYAN, appellant.
CourtNebraska Supreme Court

Dennis R. Keefe, Lancaster County Public Defender, and Robert G. Hays for appellant.

Jon Bruning, Attorney General, J. Kirk Brown, and Kimberly A. Klein for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, and McCORMACK, JJ.

STEPHAN, J.

After a jury found Abram L. Payan guilty of one count of first degree sexual assault and one count of false imprisonment, the trial judge sentenced him to a term of 18 to 25 years' imprisonment on the sexual assault conviction and 5 to 5 years' imprisonment on the false imprisonment conviction, with the sentences to run concurrently. The trial judge made a finding that the sexual assault conviction constituted an "aggravated offense" as defined by the Sex Offender Registration Act (SORA)1 and that therefore, Payan was subject to the lifetime registration requirement of SORA and lifetime community supervision pursuant to Neb.Rev.Stat. § 83-174.03 (Reissue 2008) following his release from prison. In this direct appeal, Payan contends that the trial court erred in determining that he had committed an aggravated offense and further erred in imposing an excessive sentence.

I. BACKGROUND

In an amended information filed in the district court for Lancaster County, Payan was charged with first degree sexual assault by a person 19 years of age or older subjecting a person at least 12 years of age but less than 16 years of age to sexual penetration, a Class II felony.2 He was also charged with first degree false imprisonment by knowingly restraining a person under terrorizing circumstances or under circumstances which exposed the victim to the risk of serious bodily injury, a Class IIIA felony.3 Payan was tried by a jury.

C.N., whose date of birth is November 14, 1992, testified to events occurring in Lancaster County, Nebraska, on September 8 and 9, 2007. C.N. lived across the street from Payan and was at home on the evening of September 8. She testified that Payan called and asked her to "hang out" with him and several others, including his nephew and another male who were classmates of C.N. Payan said that they would not be gone long and that C.N. would not get in trouble. C.N. decided to join the group. She left her home through a basement window and entered the back seat of Payan's vehicle, where C.N.'s two male classmates were seated. An older individual known as Ason was seated in the front passenger seat.

Payan drove for some distance and then stopped at a store. He and Ason went inside, leaving C.N. and the others in the vehicle. C.N. testified that while Payan and Ason were in the store, she told her classmates that she was frightened because of a prior experience with Payan but that Payan's nephew and the other male assured her they would not let anything happen to her.

When Payan and Ason returned to the vehicle, Payan drove to an unlocked house in Lincoln, Nebraska. After C.N. and the four males entered the front door of the house, Payan and Ason blocked the door by placing a piece of furniture in front of it. C.N. testified that Payan gave her an alcoholic beverage in a shot glass and insisted that she drink it. After initially resisting, she drank several shots, because she did not feel that she had a choice. C.N. testified that she did not feel well after consuming the alcohol and went to a bedroom of the home to lie down. When Payan entered the bedroom, C.N. left the room and rejoined the others, who had remained in the front room of the home. One of C.N.'s classmates testified that while C.N. was in the bedroom, Payan stated that he intended to use his knife to coerce C.N. to perform oral sex.

C.N. testified that when she returned to the front room, Payan, who was also now in the front room, displayed a knife and told her he would kill her if she did not comply with his instructions. She testified that Payan then subjected her to oral and anal penetration in the presence of the others in the room. C.N. testified that Payan then took her to the bedroom to perform oral sex on Ason. C.N.'s testimony regarding these events was corroborated by the testimony of one of her male classmates, who stated that he was present and observed the events described by C.N. in her testimony.

All five persons then left the house. C.N. testified that Payan dropped her off in front of his home and told her not to call the police. Instead of entering her home, C.N. walked to a friend's house, arriving after 1 a.m. on September 9, 2007. She told her friend what had occurred. He and another friend drove her to her home at approximately 7 a.m. on September 9.

Payan testified in his own defense. He was born on August 5, 1984, and was 23 years old in September 2007. He testified that he was acquainted with C.N., but denied that he had engaged in sexual acts with her. Payan's 15-year-old nephew also testified for the defense. He denied that he was present at the time of the alleged assault and testified that he had never seen Payan engage in sex with C.N.

After the jury returned guilty verdicts on both charges, the district court ordered a presentence investigation report and subsequently conducted a sentencing hearing. At that hearing, Payan's counsel objected to any finding that the sexual assault conviction constituted an aggravated offense under SORA. He argued that the elements of the offense did not meet the statutory definition of an aggravated offense and that any factual finding by the court would violate the constitutional principles articulated by the U.S. Supreme Court in Apprendi v. New Jersey.4 The district court made a specific finding that Payan's conviction on the sexual assault charge constituted an aggravated offense triggering the lifetime registration requirement under SORA and lifetime community supervision. At the sentencing hearing, Payan signed documents acknowledging that he had been advised of these requirements. Payan was sentenced to a term of 18 to 25 years' imprisonment on the sexual assault conviction and 5 to 5 years' imprisonment on the false imprisonment conviction, with the sentences to run concurrently.

Payan perfected this timely appeal, and both parties filed petitions to bypass, which we granted.

II. ASSIGNMENTS OF ERROR

Payan assigns that (1) the court erred in finding that he is subject to lifetime sex offender registration, (2) the court erred in finding that he is subject to lifetime supervision by the Office of Parole Administration, and (3) his sentence on the sexual assault conviction was excessive.

III. STANDARD OF REVIEW

Whether a criminal defendant has been denied a constitutional right to a jury trial presents a question of law.5 When deciding questions of law, an appellate court is obligated to reach conclusions independent of those reached by the trial court.6

Sentences within statutory limits will be disturbed by an appellate court only if the sentences complained of were an abuse of judicial discretion.7

IV. ANALYSIS
1. AGGRAVATED OFFENSE FINDING

SORA applies to any person who pleads guilty to or is found guilty of certain listed offenses, including sexual assault as defined by § 28-319 or Neb.Rev.Stat. § 28-320 (Reissue 2008).8 SORA includes a general requirement that persons convicted of these listed offenses must register with the sheriff of the county in which he or she resides9 during any period of supervised release, probation, or parole and "for a period of ten years after the date of discharge from probation, parole, or supervised release or release from incarceration, whichever date is most recent."10

Certain sex offenders, however, are subject to a lifetime registration requirement. Section 29-4005(2) provides:

A person required to register under section 29-4003 shall be required to register under [SORA] for the rest of his or her life if the offense creating the obligation to register is an aggravated offense, if the person has a prior conviction for a registrable offense, or if the person is required to register as a sex offender for the rest of his or her life under the laws of another state, territory, commonwealth, or other jurisdiction of the United States. A sentencing court shall make that fact part of the sentencing order.

The lifetime community supervision provisions of § 83-174.03 incorporate and mirror the lifetime registration provisions of SORA.11 According to § 83-174.03(1), a defendant who commits an aggravated offense as defined by SORA "shall, upon completion of his or her term of incarceration or release from civil commitment, be supervised in the community by the Office of Parole Administration for the remainder of his or her life."

SORA defines an aggravated offense as "any registrable offense under section 29-4003 which involves the penetration of (i) a victim age twelve years or more through the use of force or the threat of serious violence or (ii) a victim under the age of twelve years."12 Payan argues that he was not convicted of an aggravated offense as defined by SORA, because the elements of first degree sexual assault as charged in the amended information did not include either the use of force or the threat of serious violence or a victim under the age of 12 years. We recently rejected a similar contention in State v. Hamilton,13 concluding that under SORA, a sentencing judge need not consider only the elements of an offense in determining whether an aggravated offense as defined in § 29-4005(4)(a) has been committed. Instead, the court may make this determination based upon information contained in the record. Payan's argument that the aggravated offense determination under SORA must be based solely upon the elements of the charged offense is without merit.

2. APPRENDI/BLAKELY ARGUMENT

Alternatively, Payan argues that any factual finding of an aggravated offense must be made by a jury. This issue was neither raised nor...

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