State v. Todd, 85-853
| Decision Date | 18 July 1986 |
| Docket Number | No. 85-853,85-853 |
| Citation | 390 N.W.2d 528,223 Neb. 462 |
| Parties | STATE of Nebraska, Appellee, v. Ronald G. TODD, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Criminal Law: Sentences: Sexual Assault. In pronouncing sentence for a defendant charged and found guilty of sexual assault on a child, the inadvertent addition of the words "first degree" is mere surplusage and does not affect the validity of a sentence which is regular in all other respects.
2. Criminal Law: Mentally Disordered Sex Offender. There is no statutory requirement that the opinion of the examiners appointed to assist the trial court in determining whether a defendant is a mentally disordered sex offender be unanimous.
3. Criminal Law: Mentally Disordered Sex Offender. Whether a defendant is a mentally disordered sex offender is a question of fact to be determined by the trial court.
Michael T. Levy of Levy & Lazer, P.C., and John D. Sykora of Law Offices of John D. Sykora, Omaha, for appellant.
Robert M. Spire, Atty. Gen., and Dale D. Brodkey, Lincoln, for appellee.
By an information filed March 4, 1985, the defendant, Ronald G. Todd, was charged with first degree sexual assault on a child. An amended information charging two counts of sexual assault on a child was filed July 19, 1985. The defendant pleaded no contest to each of these counts and was adjudged guilty. The defendant was represented by counsel, and the arraignment complied with the requirements set out in State v. Tweedy, 209 Neb. 649, 309 N.W.2d 94 (1981).
A presentence investigation was ordered, and the defendant was examined to determine if he was a mentally disordered sex offender.
The sentencing hearing was held on September 26, 1985. The trial court found that the defendant was a treatable mentally disordered sex offender and sentenced him to imprisonment for a period of 4 years on each count, the sentences to be served consecutively. The defendant was then committed to the Lincoln Regional Center.
The defendant has appealed and contends that the trial court erred (1) in sentencing him "based on the crime of first degree sexual assault on a child," (2) in relying upon a defective presentence investigation, (3) in finding that he is a mentally disordered sex offender, and (4) in denying him probation.
The defendant is now 40 years of age. He has a high school education and generally has been employed in custodial work. The reports in the presentence investigation indicate that he functions at a borderline mentally retarded intellectual level and is in need of much psychotherapy.
The victim involved in this case was the 8- or 9-year-old son of a man living with the defendant's niece. The offenses occurred while the defendant was serving as a babysitter for the victim. The incidents took place over a period of a year. There is information in the presentence report that the defendant has engaged in other similar acts with other male children.
The defendant's first assignment of error has reference to a statement made by the trial court at the time of pronouncing sentence. The trial court stated that the defendant was sentenced "on each count of first degree sexual assault on a child." The statement was inadvertent, and it is apparent from the entire record, including the formal record of the judgment, that the defendant was in fact sentenced for sexual assault on a child. The words "first degree" were surplusage and do not affect the validity of the judgment.
The second assignment of error relates to the requirement of Neb.Rev.Stat. § 29-2261(3) (Reissue ...
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State v. Cook
...contrast, the subject act provides a number of procedural protections. Although the opinions need not be unanimous, see State v. Todd, 223 Neb. 462, 390 N.W.2d 528 (1986), the trial court must nonetheless solicit two written opinions from mental health experts; the reports and findings are ......
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State v. Harris
...as a fact finder, the trial court obviously rejected Dr. Baldwin's diagnosis and accepted Dr. Moore's diagnosis. See State v. Todd, 223 Neb. 462, 390 N.W.2d 528 (1986). The court found that the evidence was clear and convincing that Harris was an MDSO and that he could benefit from treatmen......
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State v. Thornton, 86-936
...on probation. Further, the cases cited by defendant of State v. Bovill, 223 Neb. 764, 393 N.W.2d 715 (1986), and State v. Todd, 223 Neb. 462, 390 N.W.2d 528 (1986), did not require the sentencing court to reach a contrary result on this issue. Based on these cases, the defendant contends th......
- State v. Dittrich, 85-805