State v. Ways

cases determined
in the
sUPreme cOUrt OF nebraska
()
State of NebraSka , appellee , v.
JohN S. WayS, Jr ., appellaNt.
775 n.W.2d 678
Filed december , 2009. 	no. s-09-07.
. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
appeal from the district court for Lancaster county: robert
r. otte, Judge. affirmed in part, and in part vacated.
James 	L. 	beckmann, 	of 	beckmann 	Law 	Offices, 	for
appellant.
Jon bruning, attorney General, and stacy m. Foust for
appellee.
Wright, C oNNolly, gerrard, StephaN, MCC orMaCk , and
M iller-lerMaN, JJ.
M iller-lerMaN, J.
natUre OF case
this appeal arises out of a criminal case filed in late October
2008, in Lancaster county district court, in which John s.
Ways, Jr., appellant, was found guilty of criminal contempt
of an order which had been entered in a separate previ-
ous criminal case. in that case, Ways had been found guilty
of pandering and, subsequent to his release from incarcera-
tion, ordered on January 3, 2002, to register under the sex
Offender registration act (sOra), neb. rev. stat. §§ 29-400
to 29-404 (reissue 2008). On december 4, in the present
criminal contempt case, Ways was ordered to serve 54 days
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www.nebraska.gov/apps-courts-epub/
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in jail and fined $,000. in addition to imposing the sentence,
the court proceeded to recalculate the timeframe during which
Ways would remain subject to sOra registration in connection
with the pandering conviction and ordered that, given certain
excluded times, Ways was required to register until at least
april 9, 204.
On appeal, Ways challenges the portion of the sentencing
order in which the court recalculated his sOra obligations.
We agree with Ways that the court was without authority in the
criminal contempt case to address the registration requirements
arising out of Ways’ 996 conviction for pandering. We there-
fore vacate that portion of the order addressing the registration
requirements and otherwise affirm his sentence.
statement OF Facts
in the present appeal from a Lancaster county district court
case, Ways pled no contest to a charge of criminal contempt
of court, pursuant to a plea agreement. in an order entered
december 4, 2008, the district court sentenced Ways to 54 days
in jail and a $,000 fine. the court also ordered that based on
his 996 conviction for pandering, Ways was subject to the
registration requirements of sOra until at least april 9, 204.
a review of events that occurred prior to the conviction and
sentence in this case is necessary to understand the december
4, 2008, challenged ruling with respect to Ways’ registration
requirements under sOra.
Ways was convicted of pandering and began serving his
sentence on the conviction in 996. sOra became operative
January , 997, after Ways was sentenced for the 996 pan-
dering conviction but before he finished serving the sentence.
Ways was released from prison on June 24, 998, but on that
date, the nebraska department of correctional services failed
to notify Ways of his registration requirements under sOra.
On October , 200, the district court held a hearing on
the state’s motion filed in the pandering case to determine
Ways’ obligations under sOra. the court entered an order
dated January 3, 2002, in which it found that because of the
pandering conviction, Ways was subject to the registration
requirements of sOra. the court ordered that Ways was “to
2 	279 nebraska rePOrts

comply with the requirements of [sOra until June 24, 2008,
representing] the remainder of the ten years from his release”
on June 24, 998. Ways appealed the January 3, 2002, order
to the nebraska court of appeals. the court of appeals
affirmed the order in an unpublished decision on February 8,
2003. see State v. Ways,  neb. app. cxvi (no. a-02-76,
Feb. 8, 2003).
Ways did not thereafter register in compliance with the
January 3, 2002, order in the pandering case. Ways was taken
into federal custody on may 5, 2003, and remained in custody
until July 28, 2008.
On October 3, 2008, the state filed an information in the
district court for Lancaster county in the case that gives rise
to the current appeal. the information charged Ways with two
counts: () a violation of sOra for failing to register between
July 28 and august 5, 2008, and (2) contempt of court for
disobeying the January 3, 2002, order in the pandering case
by failing to register between January 3, 2002, and may 5,
2003. Pursuant to a plea agreement, Ways pled no contest to
the contempt charge, and the state dropped the other charge
and did not file habitual criminal charges.
at the plea and sentencing hearing held december 4, 2008,
Ways argued that the January 3, 2002, order in the pander-
ing case set a date certain of June 24, 2008, for the end of his
registration requirement under sOra and that therefore his
obligation to register ended on that date. contrary to Ways’
urging in the present contempt case, the court determined in its
december 4 sentencing order that Ways’ obligation to register
under sOra based on the 996 pandering conviction should
extend until at least april 9, 204.
in making its determination in the december 4, 2008, order,
the court stated that Ways should get credit for fulfilling the
registration requirement for the period from his release until
the court of appeals’ affirmance of his sOra obligations,
i.e., June 24, 998, through February 8, 2003. the court
stated, however, that Ways should get no credit for the period
of February 8, 2003, through december 4, 2008, “because
of non-compliance, incarceration or both.” the court there-
fore ordered that Ways should get credit for having completed
state v. Ways 	3
cite as 279 neb. 

55 months and 25 days of the 0-year registration requirement
and that because of the time remaining on the 0-year period,
Ways was “ordered to continuously register under [sOra]
until at least april 9, 204.”
Ways appeals the portion of the december 4, 2008, order
regarding his sOra obligations.
assiGnments OF errOr
Ways asserts that the district court erred in its december 4,
2008, order when it concluded that Ways was subject to sOra
registration requirements for any time after June 24, because
the January 3, 2002, order in the pandering case set a date
certain of June 24, 2008, upon which his registration would
end. in the alternative, Ways asserts that the district court
lacked authority to issue sOra-related rulings in the present
criminal contempt case.
standard OF reVieW
[] When dispositive issues on appeal present questions of
law, an appellate court has an obligation to reach an indepen-
dent conclusion irrespective of the decision of the court below.
State v. Head, 276 neb. 354, 754 n.W.2d 62 (2008).
anaLysis
because we find it to be dispositive, we first address Ways’
assertion that the portion of the december 4, 2008, order
regarding Ways’ sOra obligations in the criminal contempt
case was an improper exercise of authority by the district
court. We conclude that the district court lacked authority in
the criminal contempt case to address issues regarding sOra
registration requirements arising from Ways’ conviction in the
separate earlier criminal case of pandering.
the present case regarding criminal contempt was a separate
action and not part of the action in which Ways was convicted
of pandering. the information in the present case, filed in late
October 2008, charged Ways with two counts: failure to reg-
ister under sOra and criminal contempt for disobeying the
January 3, 2002, order in the pandering case ordering Ways
to register. the information put Ways on notice of the charges
against him. see State v. Kennedy, 25 neb. 337, 557 n.W.2d
4 	279 nebraska rePOrts

33 (996) (information setting forth specific acts constitut-
ing offense gives adequate notice to defendant). the count of
failure to register was dismissed as part of a plea agreement,
and Ways pled guilty to criminal contempt. notwithstanding
the limited scope of the present case, in its sentencing order of
december 4, 2008, the court exceeded the sentencing necessary
to dispose of the criminal contempt identified in the informa-
tion and addressed issues regarding registration requirements
related to the pandering case.
issues regarding the duration of Ways’ registration require-
ments related to the 996 pandering conviction were collateral
to the present case, which was limited to the issue of criminal
contempt. Ways pled guilty to contempt because he disobeyed
the January 3, 2002, order in the pandering case to register
between that date and may 5, 2003, a period during which
Ways was subject to registration. the present case was not
the appropriate forum to raise and address issues pertaining to
further calculations regarding the period of time during which
Ways remained subject to registration. instead, any request for
modification or clarification of orders regarding registration
requirements which stemmed from Ways’ pandering convic-
tion should have been raised and addressed by a proceeding
in the separate criminal action in which Ways was convicted
of pandering.
in its brief on appeal, the state urges us to affirm the dis-
trict court’s order of december 4, 2008, in all respects. the
state argues that to the extent the court erred by addressing the
registration issue in this case, the error was invited by Ways,
who raised the issue by a letter requesting the court to issue an
order that his registration requirement had ended on June 24.
the record shows that the state had also corresponded with the
court providing its calculations, culminating in the suggestion
that Ways was subject to sOra registration until april 9, 204.
however, as we have concluded, the court did not have author-
ity to address the issue of the duration of remaining registration
in the present case, and the parties cannot confer such authority
on the court through their agreement. see, similarly, Cummins
Mgmt. v. Gilroy, 266 neb. 635, 667 n.W.2d 538 (2003). We
therefore conclude that the portions of the december 4, 2008,
state v. Ways 	5
cite as 279 neb. 

sentencing order in which the court addressed the registra-
tion requirements related to Ways’ 996 pandering conviction
should be vacated.
cOncLUsiOn
in this criminal contempt case, we conclude that the dis-
trict court was without authority to enter an order regarding
the duration of Ways’ sOra registration requirement, which
was a consequence of his conviction for pandering in a sepa-
rate criminal action. We therefore vacate that portion of the
sentencing order of december 4, 2008, which orders Ways to
register until at least april 9, 204, and affirm the remainder of
the sentencing order.
affirMed iN part, aNd iN part vaCated.
heaviCaN, c.J., not participating.
State of NebraSka , appellee , v.
M arCuS l. hudSoN, appellaNt.
775 n.W.2d 429
Filed december , 2009. 	no. s-09-30.
. Criminal Law: Convictions: Evidence: Appeal and Error. When reviewing a
criminal conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
2. Convictions: Evidence: Appeal and Error. regardless of whether the evidence
is direct, circumstantial, or a combination thereof, an appellate court, in review-
ing a criminal conviction, does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence.
3. Evidence: Appeal and Error. any conflicts in the evidence or questions con-
cerning the credibility of witnesses are for the finder of fact to resolve.
4. Convictions: Evidence: Appeal and Error. a conviction will be affirmed, in
the absence of prejudicial error, if the properly admitted evidence, viewed and
construed most favorably to the state, is sufficient to support the conviction.
5. Rules of Evidence. in proceedings where the nebraska evidence rules apply, the
admissibility of evidence is controlled by the nebraska evidence rules; judicial
discretion is involved only when the rules make discretion a factor in determin-
ing admissibility.
6 	279 nebraska rePOrts