S-23-0845 State of Nebraska (Appellee) v. John G. Strawn (Appellant)
Appeal from the District Court for Sarpy County, Judge Nathan B. Cox, on appeal therefrom the County Court for Sarpy County, Judge PaTricia A. Freeman
Attorneys: Liam K. Meehan (Higgins Law for Appellant) and Melissa R. Vincent (Asst. Attorney General for Appellee)
Criminal: Sexual Offender Registration Act (SORA)
Proceedings Below: Appellant pled no contest to two counts of third-three assault, and the county court sentenced Appellant to twenty-four months’ probation and ordered him to register under SORA. On appeal, the district court affirmed. Appellant filed a petition to bypass the Nebraska Court of Appeals, which the Nebraska Supreme Court sustained and transferred this case from the docket of the Nebraska Court of Appeals to its docket.
Issues: Appellant assigns the following errors: 1) The trial court erred and abused its discretion in requiring Appellant to register as a sex offender pursuant to SORA by finding of evidence of sexual penetration or sexual contact in “the record” when such evidence was not present in “the record” as defined by Neb. Rev. Stat. § 29-4003(1)(b)(i)(B). Specifically, the factual basis agreed upon by the parties and accepted by the Court beyond a reasonable doubt was void of any reference to evidence of sexual contact or penetration and a plain reading of the SORA statute requires evidence of sexual contact or penetration in both the factual basis and the pre-sentence investigation report. As such, the trial court had no authority to require Appellant to register pursuant to SORA; 2) The trial court erred in subjecting Appellant to SORA based upon a blanket determination of the credibility of witnesses without a particularized rationale or basis for such finding. The court made no finding whatsoever from any part of the records as to credibility of either named victim or their statements to law enforcement or otherwise, as contained with the pre-sentence investigation report; 3) The trial court erred in denying Appellant procedural due process by failing to allow him an opportunity to dispute evidence in the record and adduced at the hearing regarding sexual penetration or sexual contact when it determined he was subject to the SORA pursuant to Neb. Rev. Stat. § 29-4003; and 4) The trial court committed plain error in subjecting Appellant to the federal firearm prohibition for a misdemeanor crime of domestic violence because it failed to properly employ the modified categorical approach to the issue of whether Appellant’s offense of conviction included as an element the “use of physical force” and there was no evidence in the record of a domestic relationship.