State v. Heslep

State of NebraSka , appellee , v.
C hriStopher a. heSlep, appellaNt.
757 N.W.2d 386
Filed November 18, 2008. 	No. A-08-197.
1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether
the issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: In reviewing a
criminal conviction, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favorably to the
State, is sufficient to support the conviction.
2. Verdicts: Appeal and Error. On a claim of insufficiency of the evidence, an
appellate court will not set aside a guilty verdict in a criminal case where such
verdict is supported by relevant evidence. Only where evidence lacks sufficient
probative force as a matter of law may an appellate court set aside a guilty verdict
as unsupported by evidence beyond a reasonable doubt.
3. Judgments: Appeal and Error. When deciding questions of law, an appellate
court is obligated to reach conclusions independent of those reached by the
trial court.
4. 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.
5. Criminal Law: Photographs: Minors. A determination of whether a defendant
possessed photographs for the purpose of real or simulated overt sexual gratifica-
tion or sexual stimulation should include consideration of (1) whether the focal
point of the visual depiction is on the child’s genitalia or pubic area; (2) whether
the setting of the visual depiction is sexually suggestive, i.e., in a place or pose
generally associated with sexual activity; (3) whether the child is depicted in an
unnatural pose, or in inappropriate attire, considering the age of the child; (4)
whether the child is fully or partially clothed, or nude; (5) whether the visual
depiction suggests sexual coyness or a willingness to engage in sexual activity;
and (6) whether the visual depiction is intended or designed to elicit a sexual
response in the viewer.
6. Effectiveness of Counsel: Records: Appeal and Error. A claim of ineffective
assistance of counsel need not be dismissed merely because it is made on direct
appeal. The determining factor is whether the record is sufficient to adequately
review the question.
7. Trial: Evidence: Appeal and Error. If a matter has not been raised or ruled on
at the trial level and requires an evidentiary hearing, an appellate court will not
address the matter on direct appeal.
236 	17 NebRASkA AppellATe RepORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:15 AM CST

Appeal from the District Court for Sarpy County: DaviD k.
arterburN, Judge. Affirmed.
patrick 	J. 	boylan, 	Chief 	Deputy 	Sarpy 	County 	public
Defender, for appellant.
Jon bruning, Attorney General, and George R. love for
appellee.
iNboDy, Chief Judge, and Moore and CaSSel, Judges.
iNboDy, Chief Judge.
I. INTRODUCTION
Christopher A. Heslep appeals his conviction of possession
of child pornography, contending that the evidence was insuf-
ficient to support his conviction and that he received ineffec-
tive assistance of counsel. For the reasons set forth herein,
we affirm.
II. STATeMeNT OF FACTS
While 	at 	a 	hotel 	in 	Sarpy 	County, 	Nebraska, 	Heslep
allowed a 17-year-old hotel guest and a hotel employee, kurt
Voorhees, into his hotel room. During that time, Voorhees and
the hotel guest observed a picture, saved as Heslep’s “wall-
paper” on his computer screen, of three young girls, approxi-
mately 9 or 10 years of age, dressed in very tight swimsuits,
in sexually explicit poses. Additionally, Voorhees observed
several “thumbnail drives” that were popping up on the screen
and saw what appeared to be an approximately 10-year-old
female, whom he believed to be either naked or dressed in a
nude-colored swimsuit. Voorhees contacted law enforcement
about the photographs he observed on Heslep’s computer.
Voorhees told officers that Heslep had talked sexually about
the girls in the pictures and that Heslep had admitted to him
that Heslep was attracted to young girls.
Vorhees informed officers that Heslep had been giving two
young girls (under 10 years old), who were patrons of the
hotel, pizza and stuffed animals. The hotel guest stated that
he had observed Heslep playing peekaboo in the hallway with
STATe v. HeSlep 	237
Cite as 17 Neb. App. 236

a girl who was approximately 8 or 9 years old. According
to the hotel guest, as the girl left the hallway, Heslep com-
mented that the girl “had very beautiful legs.” The hotel
guest also told officers that he thought the age of the girls
in the photographs he viewed on Heslep’s computer, and the
way they were posing, was inappropriate. The hotel guest,
who was 17 years old, told officers that during the time he
was in Heslep’s motel room, Heslep gave him a beer, which
he drank.
Heslep was arrested and charged with possession of child
pornography in violation of Neb. Rev. Stat. § 28-813.01(1)
(Cum. Supp. 2006), a Class IV felony, and procuring alcohol
for a minor, in violation of Neb. Rev. Stat. § 53-180 (Reissue
2004), a Class I misdemeanor.
A stipulated trial was held to the court at which four exhib-
its were admitted into evidence: exhibit 1—police reports,
including witness statements, from the Sarpy County sheriff’s
office; exhibit 2—a CD containing the forensic report of the
Douglas County sheriff’s office cybercrimes unit, as well as
items removed from the hard drive of Heslep’s computer,
including the subject photograph which is the basis for the
child pornography conviction (report contained on CD notes
that forensic examiner of Heslep’s computer found “10 pictures
of underage females” saved to hard drive); exhibit 3—a DVD
video recording of a portion of an interview conducted with
Heslep by a deputy of the Sarpy County sheriff’s office; and
exhibit 4—a written stipulation entered into by the parties set-
ting forth that the date of the offense was July 15, 2007, the
court shall receive into evidence the aforementioned exhibits,
Heslep’s date of birth is December 23, 1956, and the hotel
guest’s date of birth is January 16, 1990.
On November 19, 2007, the district court rendered its writ-
ten opinion and verdict wherein the court found Heslep guilty
of the two charged offenses. Regarding the sufficiency of the
evidence to convict Heslep of possession of child pornography,
the district court stated that “in argument the parties stipulated,
or at least [Heslep] did not contest, that the girls depicted
in the photographs qualified as being children as defined by
Sec. 28-1463.02(1).”
238 	17 NebRASkA AppellATe RepORTS

Further, the district court found that in Heslep’s interview
with law enforcement and his statements to a hotel worker,
there was sufficient evidence to establish that he was view-
ing the photographs for the purpose of sexual gratification or
sexual stimulation. The court stated:
During the course of his interview, [Heslep] was asked
upon numerous occasions whether he received sexual
gratification 	from 	viewing 	the 	photographs. 	[Heslep]
would not answer the question in a yes-or-no fashion,
but simply stated that the girls are “extremely attractive”,
“inviting”, “pretty”, “gorgeous young ladies”, that they
have “puffy little breasts and butts”, but he says he will
not “go there” regarding sexual attraction.
Finally, the court determined that at least one of the photo-
graphs, labeled “‘Future playmate Models,’” contained “sex-
ually explicit conduct,” that being “erotic nudity” as defined by
statute. The court noted that in this photograph,
two young girls are on their hands and knees with their
buttocks pointed toward the camera. both girls are wear-
ing thong-type underwear which goes down the crack
of their buttocks and partially covers their crotch. both
young girls are looking back at the camera; one girl has
a bikini-type top on, the other has a lingerie-type top.
Neither of the girls’ breasts are visible due to the clothing
worn and the nature of the pose. . . . The focal point of
the depiction is clearly the genitalia and pubic areas of
the girls portrayed. While the setting is benign, the pose
is clearly associated with sexual activity. The children
in the photograph are clearly depicted in an unnatural
pose and are in inappropriate attire considering their age.
While the children are partially clothed, little is cov-
ered. In addition, the visual depiction based on pose and
expressions of the children demonstrates a sexual coy-
ness and willingness to engage in sexual activity. Finally,
the visual depiction is clearly intended to elicit a sexual
response in the viewer.
Heslep was sentenced to 3 years’ probation on each count,
with the sentences ordered to run concurrently. Heslep has
timely appealed to this court.
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Cite as 17 Neb. App. 236

III. ASSIGNMeNTS OF eRROR
On appeal, Heslep contends that the evidence was insuf-
ficient to support his conviction of possession of child por-
nography, because the State failed to prove (a) that the females
depicted in the photograph at issue were children as defined
by statute and (b) that the photograph used to convict him
met the statutory definition of “erotic nudity” or that he pos-
sessed the photograph for the purpose of sexual gratification or
sexual stimulation.
Heslep also contends that his trial counsel was ineffective
for (1) failing to file a motion to suppress physical evidence
and Heslep’s statements to law enforcement, (2) failing to file
a motion for discovery, (3) failing to require the State to pro-
duce the purported rights advisory forms connected to Heslep’s
statements to law enforcement, (4) failing to obtain an expert
witness to conduct a forensic examination of the laptop com-
puter, (5) failing to confront and cross-examine the State’s
witnesses by waiving a jury trial and agreeing to a stipulated
bench trial, (6) failing to file a motion in limine to exclude
irrelevant and prejudicial hearsay evidence, and (7) failing to
raise the defense of intoxication.
IV. STANDARD OF ReVIeW
[1] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction. State v. McGhee, 274 Neb.
660, 742 N.W.2d 497 (2007); State v. White, 272 Neb. 421, 722
N.W.2d 343 (2006).
[2,3] On a claim of insufficiency of the evidence, an appel-
late court will not set aside a guilty verdict in a criminal case
where such verdict is supported by relevant evidence. Only
240 	17 NebRASkA AppellATe RepORTS

where evidence lacks sufficient probative force as a matter of
law may an appellate court set aside a guilty verdict as unsup-
ported by evidence beyond a reasonable doubt. State v. Kuhl,
276 Neb. 497, 755 N.W.2d 389 (2008). When deciding ques-
tions of law, this court is obligated to reach conclusions inde-
pendent of those reached by the trial court. Id.
V. ANAlYSIS
1. iNSuffiCieNCy of eviDeNCe
Heslep contends that the evidence adduced by the State
was insufficient to support his conviction of possession of
child pornography. Specifically, he contends the State failed to
prove (a) that the females depicted in the photograph at issue
were children as defined by statute and (b) that the photograph
met the statutory definition of “erotic nudity” or that he pos-
sessed the photograph for the purpose of sexual gratification or
sexual stimulation.
[4] 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. State v. Heitman, 262 Neb. 185, 629 N.W.2d
542 (2001); State v. Spidel, 10 Neb. App. 605, 634 N.W.2d
825 (2001).
Section 28-813.01(1) provides: “It shall be unlawful for a
person to knowingly possess any visual depiction of sexually
explicit conduct, as defined in section 28-1463.02, which has
a child, as defined in such section, as one of its participants or
portrayed observers.” The definition of “sexually explicit con-
duct,” contained in Neb. Rev. Stat. § 28-1463.02(5) (Reissue
1995), includes “erotic nudity,” which is further defined as
“the display of the human male or female genitals or pubic
area, the human female breasts, or the developing breast area
of the human female child, for the purpose of real or simulated
overt sexual gratification or sexual stimulation of one or more
of the persons involved,” § 28-1463.02(3). The definition of
“child” states: “Child, in the case of a participant, shall mean
any person under the age of eighteen years and, in the case of
STATe v. HeSlep 	241
Cite as 17 Neb. App. 236

a portrayed observer, shall mean any person under the age of
sixteen years.” § 28-1463.02(1).
(a) Age of Children
Heslep contends that the evidence is insufficient to estab-
lish that the females depicted in the photograph at issue
were children as defined by statute, because the State did not
establish the age of the girls depicted in the photograph. The
district court noted that “in argument the parties stipulated,
or at least [Heslep] did not contest, that the girls depicted
in the photographs qualified as being children as defined by
Sec. 28-1463.02(1).”
In its brief, the State notes that Voorhees and the hotel guest
told law enforcement that they observed photographs of young
girls, approximately 9 or 10 years of age, posing in a sexually
provocative manner. However, the State did not establish that
Voorhees and the hotel guest ever viewed the photograph which
served as the basis of Heslep’s conviction. Further, we disagree
with the district court’s characterization of the parties’ stipula-
tion. Although the parties stipulated to the evidence adduced
at trial, we have found nothing in the record which indicates
Heslep agreed to stipulate to an element of the offense, i.e.,
that the girls in the photographs were under the age of 18.
Further, regarding the trial court’s statements that Heslep did
not contest the girls’ ages, Heslep does not bear the burden of
proof at trial.
However, as the State further notes in its brief, the forensic
examiner of Heslep’s computer found “10 pictures of underage
females” saved to the hard drive of Heslep’s computer. Viewing
this evidence in the light most favorable to the State, as we are
required to do, there is sufficient evidence to establish that the
girls in the photograph were under the age of 18 years. Thus,
we reject Heslep’s claim that the State failed to prove the age
of the females in the photograph.
(b) “erotic Nudity”
Heslep also contends the State did not prove that the photo-
graph used to convict him met the statutory definition of “erotic
nudity” or that he possessed the photograph for the purpose of
242 	17 NebRASkA AppellATe RepORTS

“real or simulated overt sexual gratification or sexual stimula-
tion” as required by § 28-1463.02(3).
As we previously set forth, “erotic nudity” is defined as “the
display of the human male or female genitals or pubic area,
the human female breasts, or the developing breast area of the
human female child, for the purpose of real or simulated overt
sexual gratification or sexual stimulation of one or more of the
persons involved.” § 28-1463.02(3).
Although the Nebraska Supreme Court has not set forth
factors to consider when determining whether a defendant pos-
sessed photographs for the purpose of real or simulated overt
sexual gratification, the court has made this determination in
the context of whether a defendant took pictures for that pur-
pose. In State v. Saulsbury, 243 Neb. 227, 498 N.W.2d 338
(1993), the Nebraska Supreme Court held that a determination
of whether a defendant took photographs for the purpose of
real or simulated overt sexual gratification or sexual stimu-
lation should include consideration of (1) whether the focal
point of the visual depiction is on the child’s genitalia or pubic
area; (2) whether the setting of the visual depiction is sexually
suggestive, i.e., in a place or pose generally associated with
sexual activity; (3) whether the child is depicted in an unnatu-
ral pose, or in inappropriate attire, considering the age of the
child; (4) whether the child is fully or partially clothed, or
nude; (5) whether the visual depiction suggests sexual coyness
or a willingness to engage in sexual activity; and (6) whether
the visual depiction is intended or designed to elicit a sexual
response in the viewer. See, also, State v. Spidel, 10 Neb. App.
605, 634 N.W.2d 825 (2001).
[5] In our opinion, these considerations are equally appli-
cable when considering whether a defendant possessed photo-
graphs for the purpose of real or simulated overt sexual grati-
fication or sexual stimulation. Therefore, in this case and
future cases, a determination of whether a defendant possessed
photographs for the purpose of real or simulated overt sexual
gratification or sexual stimulation should include consideration
of (1) whether the focal point of the visual depiction is on the
child’s genitalia or pubic area; (2) whether the setting of the
visual depiction is sexually suggestive, i.e., in a place or pose
STATe v. HeSlep 	243
Cite as 17 Neb. App. 236

generally associated with sexual activity; (3) whether the child
is depicted in an unnatural pose, or in inappropriate attire,
considering the age of the child; (4) whether the child is fully
or partially clothed, or nude; (5) whether the visual depiction
suggests sexual coyness or a willingness to engage in sexual
activity; and (6) whether the visual depiction is intended or
designed to elicit a sexual response in the viewer.
As applied to the instant case, in the photograph at issue, we
agree with the assessment of the district court that
[t]he focal point of the depiction is clearly the genitalia
and pubic areas of the girls portrayed. While the setting is
benign, the pose is clearly associated with sexual activity.
The children in the photograph are clearly depicted in an
unnatural pose and are in inappropriate attire considering
their age. While the children are partially clothed, little is
covered. In addition, the visual depiction based on pose
and expressions of the children demonstrates a sexual
coyness and willingness to engage in sexual activity.
Finally, the visual depiction is clearly intended to elicit a
sexual response in the viewer.
When these factors are considered in conjunction with
Heslep’s statements that he was attracted to young girls, there
is little doubt that Heslep possessed the photograph for the
purpose of real or simulated overt sexual gratification or sexual
stimulation. because the photograph in question displayed the
female genital and pubic area as its focal point and we have
found that the State proved that Heslep possessed the photo-
graph for sexual gratification or stimulation, we reject Heslep’s
claim that the State failed to meet the statutory definition of
“erotic nudity.”
2. iNeffeCtive aSSiStaNCe of C ouNSel
Next, Heslep contends that his trial counsel was ineffective
for (1) failing to file a motion to suppress physical evidence
and Heslep’s statements to law enforcement, (2) failing to
file a motion for discovery, (3) failing to require the State
to produce the purported rights advisory forms connected to
Heslep’s statements to law enforcement, (4) failing to obtain an
expert witness to conduct a forensic examination of the laptop
244 	17 NebRASkA AppellATe RepORTS

computer, (5) failing to confront and cross-examine the State’s
witnesses by waiving a jury trial and agreeing to a stipulated
bench trial, (6) failing to file a motion in limine to exclude
irrelevant and prejudicial hearsay evidence, and (7) failing to
raise the defense of intoxication.
[6,7] A claim of ineffective assistance of counsel need not
be dismissed merely because it is made on direct appeal. The
determining factor is whether the record is sufficient to ade-
quately review the question. State v. McCulloch, 274 Neb. 636,
742 N.W.2d 727 (2007); State v. Walker, 272 Neb. 725, 724
N.W.2d 552 (2006). If a matter has not been raised or ruled on
at the trial level and requires an evidentiary hearing, an appel-
late court will not address the matter on direct appeal. State v.
McCulloch, supra; State v. Walker, supra.
We find that since all of Heslep’s allegations concern his
trial counsel’s failure to act, the record on direct appeal is not
sufficient for review of this assignment of error at this time.
VI. CONClUSION
In sum, having rejected Heslep’s claim that the evidence
was insufficient to support his conviction and finding that the
record on direct appeal is not sufficient for adequate review of
Heslep’s claims of ineffective assistance of counsel, the deci-
sion of the district court is affirmed.
affirMeD.
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