State v. Norman

acts and omissions, not those of Ferguson Signs or NEVCO
Scoreboard Company. The College was not free from any
wrongdoing. It thus cannot claim indemnity.
V. CONCLUSION
Because of our decision, other issues that the parties assigned
are no longer relevant. We conclude that the court did not err
in finding the College liable. Further, it correctly denied the
College’s claim for indemnity. The court, however, did err in
apportioning negligence to Ferguson Signs. On remand, the
court should reapportion Ferguson Signs’ share of the neg-
ligence to the remaining parties—Downey and the College.
Accordingly, we affirm in part, reverse in part, and remand for
further proceedings consistent with this opinion.
A ffirmed in pArt, And in pArt reversed And
remAnded for further proceedings.
Wright, J., not participating.
stAte of nebrAskA, Appellee , v.
chAd normAn, AppellAnt.
808 N.W.2d 48
Filed January 6, 2012. 	No. S-10-888.
1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
2. Constitutional Law: Due Process. The determination of whether the procedures
afforded an individual comport with constitutional requirements for procedural
due process presents a question of law.
3. Judgments: Appeal and Error. On a question of law, an appellate court is obli-
gated to reach a conclusion independent of the court below.
4. Pretrial Procedure: Appeal and Error. The trial court has broad discretion in
granting discovery requests and errs only when it abuses its discretion.
5. Constitutional Law: Appeal and Error. A constitutional issue not presented to
or passed upon by the trial court is generally not appropriate for consideration
on appeal.
6. Criminal Law: Convicted Sex Offender: Notice. Before determining that a
defendant convicted of a crime not sexual in nature is subject to sex offender
990 	282 NEBrASkA rEpOrTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:44 AM CST

registration pursuant to Neb. rev. Stat. § 29-4003(1)(b)(i)(B) (Cum. Supp. 2010),
the court must provide notice and a hearing and must make the finding whether
sexual penetration or sexual contact occurred in connection with the incident that
gave rise to the conviction based on the record and the hearing.
7. Statutes: Presumptions: Legislature: Intent: Appeal and Error. In constru-
ing a statute, appellate courts are guided by the presumption that the Legislature
intended a sensible rather than absurd result in enacting the statute.
8. Statutes: Legislature: Intent. An appellate court will place a sensible construc-
tion upon a statute to effectuate the object of the legislation, as opposed to a
literal meaning that would have the effect of defeating the legislative intent.
9. Statutes: Intent. In construing a statute, a court must look to the statutory objec-
tive to be accomplished, the evils and mischiefs sought to be remedied, and the
purpose to be served, and then must place on the statute a reasonable or liberal
construction that best achieves the statute’s purpose, rather than a construction
that defeats the statutory purpose.
10. Constitutional Law: Statutes. It is the duty of a court to give a statute an inter-
pretation that meets constitutional requirements if it can reasonably be done.
11. Due Process. When an individual claims he or she is being deprived of a liberty
interest without due process, the claim is examined in three stages. First, a deter-
mination must be made that there is a liberty interest at stake. Second, having
found a liberty interest, the court must determine what procedural safeguards are
required. Third, the facts of the case are examined to ascertain whether there was
a denial of that process which was due.
12. Criminal Law: Convicted Sex Offender: Presentence Reports: Due Process.
Neb. rev. Stat. § 29-4003(1)(b)(i)(B) (Cum. Supp. 2010) provides that the court’s
finding shall include consideration of the factual basis for a plea-based conviction
and information contained in the presentence report. However, the statute does
not limit the court’s consideration to such sources and, because a liberty interest
is at stake, a meaningful hearing requires consideration of evidence at the hearing
as well as the factual basis and the presentence report.
13. Criminal Law: Convicted Sex Offender: Proof. The finding required under
Neb. rev. Stat. § 29-4003(1)(b)(i)(B) (Cum. Supp. 2010) should be established
by clear and convincing evidence.
Appeal from the District Court for Buffalo County: John
p. icenogle, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Michael J. Synek for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for
appellee.
Wright, connolly, gerrArd, stephAn, mccormAck , and
miller-lermAn, JJ.
STATE v. NOrMAN 	991
Cite as 282 Neb. 990

miller-lermAn, J.
NATUrE OF CASE
Chad Norman pled no contest to third degree assault, Neb.
rev. Stat. § 28-310 (reissue 2008), and was sentenced by the
district court for Buffalo County to probation for 2 years and
jail for 30 days with credit for time served. After a hearing, the
court also ordered Norman to register under Nebraska’s Sex
Offender registration Act (SOrA) pursuant to Neb. rev. Stat.
§ 29-4003(1)(b)(i)(B) (Cum. Supp. 2010). Norman appeals the
portion of his sentence which ordered him to register, because
he claims he was denied due process. We find merit to this
claim and reverse the registration order and remand for resen-
tencing in a manner that comports with procedural due process
as outlined in this opinion. We find no merit to Norman’s
remaining assignments of error.
STATEMENT OF FACTS
On August 20, 2009, the State filed an information charg-
ing Norman with one count of third degree sexual assault of
a child, in violation of Neb. rev. Stat. § 28-320.01 (reissue
2008). The State alleged that in February 2009, Norman had
subjected T.A.W., born in March 1998, to sexual contact.
Norman pled not guilty.
On April 22, 2010, Norman filed a motion to take the depo-
sitions of certain witnesses and for discovery of certain infor-
mation. Norman sought, inter alia, to depose three persons who
had treated T.A.W. for behavioral disorders and to discover
T.A.W.’s juvenile and residential treatment records maintained
by the Nebraska Department of Health and Human Services.
The court sustained portions of the motion but, on the basis
of physician-patient and counselor-client privileges, denied his
requests to depose the three counselors and to discover treat-
ment and juvenile records compiled by the Department of
Health and Human Services.
Thereafter, Norman and the State reached a plea agreement
pursuant to which the State filed an amended information
charging Norman with one count of third degree assault in vio-
lation of § 28-310. Section 28-310 provides:
992 	282 NEBrASkA rEpOrTS

(1) A person commits the offense of assault in the third
degree if he:
(a) Intentionally, knowingly, or recklessly causes bodily
injury to another person; or
(b) Threatens another in a menacing manner.
(2) Assault in the third degree shall be a Class I mis-
demeanor unless committed in a fight or scuffle entered
into by mutual consent, in which case it shall be a Class II
misdemeanor.
The 	information 	tracked 	the 	language 	of 	§ 	28-310(1)(a)
and (b).
Norman offered to plead no contest to this amended charge
at a plea hearing held June 16, 2010. When questioning Norman
prior to accepting his plea, the court informed Norman that the
State had advised the court that if a conviction were entered,
the State would request, based upon the factual basis for the
plea, that the court require Norman to register pursuant to
SOrA. Norman replied that he understood.
The State provided the following factual basis:
[O]n July 9th of 2009, officers were dispatched to [a
certain address] to have contact with . . . the mother of
the victim identified in the complaint as [T.A.W.], date
of birth [March 1998]. During this contact, [T.A.W.’s
mother] stated that her son had told her that he had been
sexually assaulted by . . . Norman.
An interview was conducted with the minor child. He
stated that [Norman] had touched his penis. Then stated
that [Norman] told him or threatened him by saying not to
tell anyone or he would hurt his family.
Those events occurred in Buffalo County, Nebraska.
After recitation of the factual basis, the court clarified that the
third degree assault charge was “based upon the threat,” to
which the State agreed. The State added that “[t]here was no
physical injury to the child . . . .” Finding that an adequate fac-
tual basis had been established for conviction of third degree
assault based on threats made in a menacing manner, the court
accepted Norman’s plea and found Norman guilty of third
degree assault.
STATE v. NOrMAN 	993
Cite as 282 Neb. 990

Because of the potential for SOrA registration, the court
conducted an expansive sentencing hearing. At the sentencing
hearing held August 2, 2010, the State offered two exhibits
in support of its request to require Norman to register under
SOrA. Norman did not object to the stipulated redacted ver-
sion of the police reports. The police reports stated that T.A.W.
had told officers that Norman had touched his penis on more
than one occasion. Norman objected to the State’s offer of a
copy of a deposition of T.A.W. taken by Norman’s attorney.
The court found that the relevant portions of the deposition
were cumulative to statements in the police reports and sus-
tained the objection.
Norman later offered a redacted version of the deposition
of T.A.W. as a rebuttal to statements in the police reports. The
State objected to admission of the redacted version of the depo-
sition. In the redacted version, T.A.W. stated that he had told
police Norman “sexually abused” him and that he had heard
of sexual abuse because “[a] lot of my friends have been sexu-
ally abused”; upon further questioning, T.A.W. stated that only
one friend had talked to him about being sexually abused. The
court received Norman’s redacted version of the deposition but
also received the full deposition that had been offered by the
State “to the extent that [it] clarifies or places into context the
contents of” the redacted version.
Norman offered two additional exhibits pertaining to SOrA
registration. The court sustained the State’s relevance objec-
tion to Norman’s offer of a copy of the record of T.A.W.’s
juvenile proceedings, but the court received a redacted version
of a deposition of T.A.W.’s mother in which she stated, inter
alia, that T.A.W. had been removed from her home and was
a ward of the State and that T.A.W. had behavioral problems.
She further stated that Norman had lived with her and that she
continued to ask him for money after he moved out. She also
described the circumstances under which T.A.W. told her that
Norman had sexually abused him.
Norman testified at the sentencing hearing. He stated that
he had lived with T.A.W.’s mother and her children, that both
T.A.W. and his mother had asked Norman for money to buy
things when he lived with them, and that they continued to ask
994 	282 NEBrASkA rEpOrTS

him for money after he had separated from T.A.W.’s mother.
Norman testified that a week or two before he was arrested in
this case, he had denied requests from T.A.W. and his mother
for money and they became angry and confronted him pub-
licly. During the confrontation, T.A.W. stated that Norman had
sexually abused him. Norman testified that this was the first
he had heard such claims and that he was later arrested based
on T.A.W.’s allegations. Norman denied that he had sexually
abused T.A.W. and testified that there had “never been any
contact between me and him.”
The State requested that as part of his sentence, Norman
be required to register under SOrA pursuant to § 29-4003. In
2009, the Legislature had amended § 29-4003 such that persons
convicted of certain offenses not sexual in nature would be
required to register under SOrA if the court found evidence
of sexual penetration or sexual contact in the record. The rele-
vant portion of § 29-4003(1)(b) provides that SOrA applies
to, inter alia, “any person who on or after January 1, 2010
. . . has ever pled guilty to, pled nolo contendere to, or been
found guilty of any of” a list of offenses, which list includes
“[a]ssault in the third degree pursuant to section 28-310.”
Section 29-4003(1)(b)(i)(B) provides that in order for SOrA to
apply to the offenses listed in § 29-4003(1)(b)(i) which are not
sexual in nature, including third degree assault under § 28-310,
of which Norman stands convicted, “a court shall have found
that evidence of sexual penetration or sexual contact, as those
terms are defined in section 28-318, was present in the record,
which shall include consideration of the factual basis for a
plea-based conviction and information contained in the presen-
tence report.”
After the 2009 amendments to SOrA, an individual ordered
to register must provide certain information and adhere to cer-
tain reporting requirements. Neb. rev. Stat. § 29-4001 et seq.
(Cum. Supp. 2010). Failure to do so subjects the individual to a
felony. § 29-4011. The information provided shall not be confi-
dential, § 29-4009, except for certain facts, such as the individ-
ual’s Social Security number. Further, the information provided
will be made publicly available using the Internet, § 29-4013,
without regard to classification as to level of dangerousness.
STATE v. NOrMAN 	995
Cite as 282 Neb. 990

In sum, the individual ordered to register under SOrA will be
publicly listed in the sex offender registry and be identified as
a sex offender.
After hearing argument by both the State and Norman, the
court made the following oral ruling with regard to SOrA reg-
istration under the revised statute:
You appear to have gone to a rather enlarged hearing
because of the language contained in Nebraska statutes
that was recently amended which provided that a person
who is convicted of an offense that is not a sex offender
offense based upon the contents of the Court’s record
can still be required to register pursuant to [SOrA]. As
far as that particular statute is concerned, it provides that
if there is evidence within the record that the person has
committed actions which would lead him to be convicted
of a registrable offense, that regardless of whatever the
defendant is convicted of, he can be required to register.
There’s no provision for any facts, findings, or any deci-
sions by the Court or a jury or any trier of fact to resolve
the dispute in the evidence in the record. And to the
extent that the statute can require registration based upon
evidence that rule isn’t evidence but statements which are
contained in the record, the Court will not find that the
law is applicable.
However, the law does provide that one of the things
the Court must consider is the factual basis that was
established in getting to the conviction. We had a plea,
we had a factual basis, we had an agreement by [Norman]
that the State would be able to offer that evidence at the
time of trial. And by the very nature of his plea, [Norman]
was saying that he was not willing to contest those state-
ments at trial. The Court then accepted those statements
and . . . accepted [Norman’s] plea in part based upon
the Court’s acceptance of the statements and then found
beyond a reasonable doubt [Norman] guilty.
Based upon that portion of the arraignment and solely
upon that portion of the arraignment, the Court will find
that [Norman] will have to register pursuant to [SOrA].
996 	282 NEBrASkA rEpOrTS

The court then sentenced Norman to probation for 2 years and
to jail for 30 days, with credit for time served, on the convic-
tion for third degree assault and ordered Norman to register
pursuant to SOrA.
Norman appeals.
ASSIGNMENTS OF ErrOr
Norman generally claims that the district court erred and
imposed an “excessive sentence” when it ordered him to reg-
ister pursuant to § 29-4003(1)(b)(i)(B) of SOrA. He claims
that the district court denied him procedural due process and
that the court erred when it failed to find § 29-4003(1)(b)(i)(B)
unconstitutional. Norman claims that the district court erred
when it denied his motion to allow him to take certain deposi-
tions and conduct discovery seeking additional information
about T.A.W.
STANDArDS OF rEVIEW
[1] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the trial court. State ex rel. Wagner v. Gilbane
Bldg. Co., 280 Neb. 223, 786 N.W.2d 330 (2010).
[2,3] The determination of whether the procedures afforded
an individual comport with constitutional requirements for pro-
cedural due process presents a question of law. Travelers Indem.
Co. v. Gridiron Mgmt. Group, 281 Neb. 113, 794 N.W.2d 143
(2011); State v. Boppre, 280 Neb. 774, 790 N.W.2d 417 (2010).
On a question of law, an appellate court is obligated to reach
a conclusion independent of the court below. Travelers Indem.
Co. v. Gridiron Mgmt. Group, supra.
[4] The trial court has broad discretion in granting discovery
requests and errs only when it abuses its discretion. State v.
Vela, 279 Neb. 94, 777 N.W.2d 266 (2010).
ANALYSIS
Before addressing Norman’s arguments, we clarify the issues
that are properly before us and that we will address on appeal.
The State asserts that Norman failed to argue his “excessive
STATE v. NOrMAN 	997
Cite as 282 Neb. 990

sentence” assignment of error in his brief. Norman replies
that the court imposed an “excessive sentence” to the extent
it found him subject to the registration requirements of SOrA
and that he did not challenge any other part of his sentence. We
therefore read Norman’s “excessive sentence” assignment of
error as being encompassed by and resolved in his claim that
the court erred when it ruled that he was subject to SOrA.
Norman also claims that the district court erred when it
failed to find § 29-4003(1)(b)(i)(B) unconstitutional. The State
argues that Norman did not properly raise and preserve a chal-
lenge to the constitutionality of the statute before the trial court
and that he did not give proper notice of his challenge or com-
ply with Neb. Ct. r. App. p. § 2-109(E) (rev. 2008). Norman
asserts that he had no opportunity to challenge the statute until
sentencing, when he was ordered to register under SOrA.
[5] A constitutional issue not presented to or passed upon by
the trial court is generally not appropriate for consideration on
appeal. State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).
To the extent that Norman contends that § 29-4003(1)(b)(i)(B)
is unconstitutional, he failed to timely make that challenge to
the trial court, and therefore the issue is not properly before
this court on appeal.
The record shows that prior to accepting the plea, the dis-
trict court advised Norman that the State intended to invoke
§ 29-4003(1)(b)(i)(B) and that Norman could be subject to
SOrA upon the requisite factual finding. Norman had the
opportunity to challenge the constitutionality of the statute at
the trial level. The fact that Norman’s proposed challenge goes
to the constitutionality of a statute that affects his sentence,
rather than the underlying charge, does not absolve Norman of
the need to challenge the statute at the trial level. See State v.
Albrecht, 18 Neb. App. 402, 790 N.W.2d 1 (2010). Therefore,
we do not consider Norman’s arguments on appeal that the
statute is unconstitutional.
In contrast, Norman generally challenges the district court’s
application of the statute to him and asserts in particular that
the court did not use procedures required by the statute and by
procedural due process. Our analysis of whether the court com-
plied with the statute requires interpretation of the statute, and,
998 	282 NEBrASkA rEpOrTS

as we discuss below, our interpretation of the statute entails
consideration of the constitutional requirements of procedural
due process. Whether Norman received procedural due process
is properly before us.
Norman Was Entitled to Procedural Due Process With Regard
to the Court’s Finding Under § 29-4003(1)(b)(i)(B);
Although the Court Gave Norman Notice and a
Hearing, the Court Erred When It Failed to
Consider Evidence From the Hearing When
It Determined He Was Subject to SORA.
[6] Norman generally claims he was denied procedural due
process in connection with the court’s order directing him to
register under SOrA. He specifically asserts that the district
court erred because the court did not provide the process due
under § 29-4003 and under constitutional principles of proce-
dural due process. We find merit to Norman’s claim that he was
denied procedural due process. For reasons explained below,
we conclude that before determining that a defendant convicted
of a crime not sexual in nature is subject to SOrA registra-
tion pursuant to § 29-4003(1)(b)(i)(B), the court must provide
notice and a hearing and must make the finding whether sexual
penetration or sexual contact occurred in connection with the
incident that gave rise to the conviction based on the record and
the hearing. In this case, although Norman was given notice and
a hearing, the court stated that it did not consider the evidence
adduced at the hearing and instead found Norman had commit-
ted an act of sexual contact subjecting him to SOrA registra-
tion based solely on statements in the State’s factual basis for
the plea. Under our reading of § 29-4003(1)(b)(i)(B), Norman
did not receive the process he was due. We therefore reverse
the portion of the sentencing order which found Norman sub-
ject to SOrA, and we remand the cause to the district court
with instructions to make the § 29-4003(1)(b)(i)(B) finding,
based on all the evidence in the record, including evidence
from the hearing, and to determine, based on such finding,
whether Norman is subject to SOrA.
Broadly speaking, the issue in this case is to determine
the procedures required before a defendant convicted of a
STATE v. NOrMAN 	999
Cite as 282 Neb. 990

crime not sexual in nature can be ordered to register as a sex
offender. The primary statute at issue in this case is § 29-4003,
which specifies persons to whom SOrA is applicable. Section
29-4003(1)(a) provides that SOrA “applies to any person who
on or after January 1, 1997 . . . [h]as ever pled guilty to, pled
nolo contendere to, or been found guilty of any of” a list of
specific criminal offenses. The offenses listed under subsection
(1)(a) are generally offenses of an obviously sexual nature or
offenses committed against minors. However, subsection (1)(b)
provides that “[i]n addition to the registrable offenses under
subdivision (1)(a) of this section, [SOrA] applies to any per-
son who on or after January 1, 2010 . . . has ever pled guilty
to, pled nolo contendere to, or been found guilty of any of” a
list of offenses. The offenses listed in subsection (1)(b) include
offenses that are not of a sexual nature, including “(VI) Assault
in the third degree pursuant to section 28-310.” Norman was
found guilty of third degree assault.
Section 29-4003(1)(b)(i)(B), upon which we focus, provides
as follows:
In order for [SOrA] to apply to the offenses listed in sub-
divisions (1)(b)(i)(A)(I) [murder in the first degree], (II)
[murder in the second degree], (III) [manslaughter], (IV)
[assault in the first degree], (V) [assault in the second
degree], (VI) [assault in the third degree], (VII) [stalk-
ing], (IX) [kidnapping], and (X) [false imprisonment]
of this section, a court shall have found that evidence
of sexual penetration or sexual contact, as those terms
are defined in section 28-318, was present in the record,
which shall include consideration of the factual basis for
a plea-based conviction and information contained in the
presentence report.
In sum, Norman was convicted of third degree assault
pursuant to § 28-310, which is an offense listed in both
§ 29-4003(1)(b)(i)(A) and § 29-4003(1)(b)(i)(B). Therefore,
for a person such as Norman convicted of third degree assault
to be subject to SOrA, the court must make the required
finding 	of 	either 	“sexual 	penetration 	or 	sexual 	contact.”
§ 29-4003(1)(b)(i)(B). Norman claims that the district court did
not make a proper finding under § 29-4003(1)(b)(i)(B) and that
1000 	282 NEBrASkA rEpOrTS

he was denied procedural due process in the manner by which
the district court reached its finding. We look to the statute and
our procedural due process jurisprudence in order to determine
whether the court made a proper finding and what procedures
are required in reaching the finding which subjects Norman to
registration under SOrA and its consequences.
[7-10] With regard to reading the statute at issue, we note
certain standards of statutory construction. In construing a
statute, appellate courts are guided by the presumption that
the Legislature intended a sensible rather than absurd result in
enacting the statute. Walton v. Patil, 279 Neb. 974, 783 N.W.2d
438 (2010). An appellate court will place a sensible construc-
tion upon a statute to effectuate the object of the legislation,
as opposed to a literal meaning that would have the effect of
defeating the legislative intent. Id. In construing a statute, a
court must look to the statutory objective to be accomplished,
the evils and mischiefs sought to be remedied, and the purpose
to be served, and then must place on the statute a reasonable
or liberal construction that best achieves the statute’s purpose,
rather than a construction that defeats the statutory purpose. Id.
It is the duty of a court to give a statute an interpretation that
meets constitutional requirements if it can reasonably be done.
Travelers Indem. Co. v. Gridiron Mgmt. Group, 281 Neb. 113,
794 N.W.2d 143 (2011); State v. Williams, 278 Neb. 841, 774
N.W.2d 384 (2009).
The purpose of SOrA is indicated by the legislative findings
set forth in Neb. rev. Stat. § 29-4002 (reissue 2008), which
provides in part:
The Legislature finds that sex offenders present a high
risk to commit repeat offenses. The Legislature further
finds that efforts of law enforcement agencies to protect
their communities, conduct investigations, and quickly
apprehend sex offenders are impaired by the lack of
available information about individuals who have pleaded
guilty to or have been found guilty of sex offenses and
who live, work, or attend school in their jurisdiction.
From these findings, it is apparent that the purpose of regis-
tration under SOrA is to identify persons who are “guilty of
sex offenses” and to gather and publish information regarding
STATE v. NOrMAN 	1001
Cite as 282 Neb. 990

these individuals which is necessary for the protection of the
public. The Nebraska State patrol Sex Offender registry simi-
larly indicates that it contains “information about individuals
who have pleaded guilty to or have been found guilty of sex
offenses.” The persons referred to in § 29-4002 and listed in
the registry are deemed “sex offenders.”
Unlike 	other 	state 	sex 	offender 	registry 	statutes, 	“sex
offender” is not explicitly defined in SOrA. Compare Rainer
v. State, 286 Ga. 675, 678, 690 S.E.2d 827, 830 (2010)
(noting that “sexual offender” is defined in Ga. Code Ann.
§ 42-1-12(a)(20)(A) (Supp. 2009) and that there “is no require-
ment that sexual activity be involved”). In the absence of a stat-
utory definition, we look to SOrA overall to determine who is
a sex offender for registration purposes. Section 29-4003(1)(b)
states that SOrA applies to persons who stand convicted of the
listed offenses and, as to certain crimes, where the requisite
finding of sexual penetration or sexual contact has been made.
persons so convicted are deemed to have committed “sex
offenses” and are “sex offenders” for purposes of SOrA and
the Nebraska State patrol Sex Offender registry.
We read § 29-4003(1)(b)(i)(B) in light of the purpose of
SOrA. As to persons convicted of crimes not sexual in nature,
we read § 29-4003(1)(b)(i)(B) to require the court to make a
factual finding that the defendant committed an act of “sexual
penetration” or “sexual contact” which is related to the inci-
dent that gave rise to the conviction before the defendant can
be ordered to register under SOrA as a sex offender. That is,
before an individual convicted of a crime not sexual in nature
listed in § 29-4003(1)(b)(i)(B) can be publicly identified as
a “sex offender” under SOrA and the registry, this requisite
finding must be made.
Having identified the finding that the court must make under
§ 29-4003(1)(b)(i)(B), we next consider the procedures the
court must follow under the statute and constitutional principles
in making such finding. The statute does not clearly specify the
procedure the court must follow in making its finding. Because,
as we explain below, registering and failing to register under
SOrA as amended in 2009 implicate a liberty interest, we
construe § 29-4003(1)(b)(i)(B) as requiring those procedures
1002 	282 NEBrASkA rEpOrTS

that comply with constitutional mandates for procedural due
process. In doing so, we give the statute an interpretation that
meets constitutional requirements. See, Travelers Indem. Co. v.
Gridiron Mgmt. Group, 281 Neb. 113, 794 N.W.2d 143 (2011);
State v. Williams, 278 Neb. 841, 774 N.W.2d 384 (2009).
We had occasion in Slansky v. Nebraska State Patrol, 268
Neb. 360, 685 N.W.2d 335 (2004), a case involving a reputa-
tional claim under a previous version of SOrA, to consider the
procedural due process required by U.S. Const. amend. XIV,
§ 1, and Neb. Const. art. I, § 3. As we noted in Slansky by
reference to our prior due process jurisprudence, procedural
due process limits the government’s ability to deprive people
of interests which constitute “liberty” or “property” interests
within the meaning of the Due process Clause. In this regard,
the U.S. Supreme Court has stated that “[w]here a person’s
good name, reputation, honor, or integrity is at stake because
of what the government is doing to him, notice and an oppor-
tunity to be heard are essential.” Wisconsin v. Constantineau,
400 U.S. 433, 437, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971).
“Only when the whole proceedings leading to the pinning of
an unsavory label on a person are aired can oppressive results
be prevented.” Id. procedural due process reduces the risk of a
finding which both is erroneous and places an individual in a
false light.
Due process requires that parties at risk of the deprivation of
liberty interests be provided adequate notice and an opportu-
nity to be heard appropriate to the nature of the proceeding and
the character of the rights which may be affected by it. Slansky
v. Nebraska State Patrol, supra. The U.S. Supreme Court has
stated that “[d]ue process is flexible and calls for such proce-
dural protections as the particular situation demands.” Mathews
v. Eldridge, 424 U.S. 319, 334, 96 S. Ct. 893, 47 L. Ed. 2d 18
(1976). Consideration should be given to “the risk of an errone-
ous deprivation of such [liberty] interest through the procedures
used, and the probable value, if any, of additional or substitute
procedural safeguards.” Id. at 335.
[11] When an individual claims he or she is being deprived
of a liberty interest without due process, the claim is examined
in three stages. First, a determination must be made that there
STATE v. NOrMAN 	1003
Cite as 282 Neb. 990

is a liberty interest at stake. Second, having found a liberty
interest, the court must determine what procedural safeguards
are required. Third, the facts of the case are examined to ascer-
tain whether there was a denial of that process which was due.
See, id.; Slansky v. Nebraska State Patrol, supra.
In Slansky, the Nebraska State patrol determined that the
defendant was a Level 3 sex offender and, under SOrA then in
effect, such determination required public disclosure of infor-
mation concerning his status as a sex offender. The defendant
asserted that public disclosure impacted his reputational liberty
interest and that the manner by which the assigned level was
ascertained violated his right to procedural due process. We
determined in Slansky that we did not need to reach the issue
whether a liberty interest was at stake, because even if we
assumed there was a liberty interest in not having his Level
3 sex offender status and associated information released, the
process afforded before public dissemination of the informa-
tion was surely adequate. In Slansky, we noted that the defend-
ant had notification and the ability to contest his classification
prior to public disclosure. We concluded that the defendant
“was afforded notice and a meaningful opportunity to contest
the [State patrol’s] decision.” 268 Neb. at 385, 685 N.W.2d at
355. The instant case differs from Slansky because SOrA has
been revised and to analyze Norman’s claim, we are required
to determine whether Norman had a liberty interest and, if so,
whether he received procedural due process.
For completeness, we also note that the instant case differs
from State v. Worm, 268 Neb. 74, 89, 680 N.W.2d 151, 164
(2004), where we noted under an earlier version of SOrA
that the “only issue currently before this court is the registra-
tion requirements, which do not involve public notice.” Worm
involved a defendant already found guilty of a sexual crime,
attempted first degree sexual assault on a child, and at issue
was whether he had committed an aggravated offense. Unlike
Worm, Norman’s underlying conviction for third degree assault
is not a crime necessarily sexual in nature, but under the current
version of SOrA, if the finding under § 29-4003(1)(b)(i)(B) is
made, then public notice of Norman’s status as a sex offender
is required.
1004 	282 NEBrASkA rEpOrTS

The current version of SOrA, applicable to this case, is
more expansive than those previously considered by this court.
It has been described as follows: “What the [current version of
SOrA] actually did . . . was to replace a system that required
individualized risk assessments of sex offenders” to determine
if the fact of their registration should be made public with a law
which requires that “certain information regarding all regis-
trants is disclosed to the public.” Doe v. Nebraska, 734 F. Supp.
2d 882, 917, 919 (D. Neb. 2010) (emphasis supplied). See
§ 29-4009(1) (“[i]nformation obtained under [SOrA] shall not
be confidential . . .”). See, also, § 29-4013. Upon registration,
information is published on the Sex Offender registry Web
site, which tracks the statutory language at § 29-4002 and iden-
tifies the individuals listed as sex offenders who “have pleaded
guilty to or have been found guilty of sex offenses.”
Norman identifies several liberty interests which he asserts
are at stake. We focus on the reputational claim to the effect
that he was denied procedural due process when he was
required to register under SOrA, thus identifying him as a
sex offender and placing his information on the public Web
site, because such order deprived him of a liberty interest—his
reputation combined with the alteration of his status under
state law—without a meaningful hearing. We have previously
noted that such a reputational claim is subject to the “‘stigma
plus’” test. State v. Worm, 268 Neb. at 88, 680 N.W.2d at 164.
In Worm, we stated:
reputational damage caused by state action which
results in a person’s stigmatization can implicate a pro-
tected liberty interest, but only if it is coupled with some
more tangible interest . . . . See Benitez v. Rasmussen, 261
Neb. 806, 626 N.W.2d 209 (2001), quoting Paul v. Davis,
424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976).
268 Neb. at 88, 680 N.W.2d at 163. The stigma-plus analy-
sis is applicable to procedural due process claims. Doe v.
Nebraska, supra.
Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d
405 (1976), referred to in Worm, is a case brought under 42
U.S.C. § 1983 (1970). The U.S. Supreme Court observed in
Paul that to establish a violation of due process, a plaintiff who
STATE v. NOrMAN 	1005
Cite as 282 Neb. 990

complains of governmental defamation must show (1) the utter-
ance of a statement about him or her that is sufficiently deroga-
tory to injure his or her reputation, that is capable of being
proved false, and that he or she claims is false and (2) some
tangible and material state-imposed burden or alteration of his
or her status or of a right in addition to the stigmatization. The
stigma-plus test applies to cases such as the present one which
show indications of material government involvement in its
public role such that the claim of a violation of a liberty inter-
est in one’s reputation is distinguishable from a common state
law defamation suit.
A “stigma” is “‘[a] mark or token of infamy, disgrace, or
reproach . . . .’” Doe v. Dept. of Public Safety ex rel. Lee, 271
F.3d 38, 48 (2d Cir. 2001), overruled on other grounds 538
U.S. 1, 123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003) (quoting
The American Heritage Dictionary of the English Language
1702 (4th ed. 2000)). Being publicly deemed a sex offender
is sufficiently derogatory to injure a person’s reputation. The
Nebraska State patrol Sex Offender registry, following the
language of § 29-4002, “stigmatizes” the people listed on it
insofar as it asserts that the persons listed are sex offenders,
that is, “individuals who have pleaded guilty to or have been
found guilty of sex offenses.” Although this stigmatizing state-
ment would be true as to persons convicted of a sex offense,
it may be a false statement as to persons such as Norman who
are convicted of an offense not sexual in nature. That is, if the
requisite finding of sexual penetration or sexual contact under
§ 29-4003(1)(b)(i)(B) is not established, it would be inaccurate
to identify Norman as a sex offender. Through his procedural
due process claim, Norman seeks to show that he has been
inaccurately deemed a “sex offender.”
To summarize our stigma analysis under § 29-4003(1)(b)(i)(B),
persons convicted of offenses not sexual in nature, such as
murder in the first degree, manslaughter, and various degrees
of assault, can be ordered to register under SOrA. Such order
is based upon a finding of an act of sexual penetration or sex-
ual contact. This finding will require the defendant to register
under SOrA, and hence, he or she will publicly be deemed by
the State as a “sex offender” and his or her information will be
1006 	282 NEBrASkA rEpOrTS

publicly disclosed. Norman was found guilty of third degree
assault, and by application of § 29-4003(1)(b)(i)(B), he was
ordered to register under SOrA, identified publicly as guilty of
a sex offense, and deemed a sexual offender on the public reg-
istry. We believe the stigma component of Norman’s claim has
been satisfied by the making of a reputation-tarnishing state-
ment, i.e. he is a sex offender, which may be proved false.
Having isolated the “stigma” that the Nebraska sexual
offender registry visited on Norman, we must next inquire
whether there is a “plus” factor that gives rise to a liberty inter-
est triggering procedural due process. A plus factor includes
an alteration or impairment by the State of “a right or status
previously recognized by state law.” Paul v. Davis, 424 U.S.
693, 711, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976). Paul clari-
fied that stigmatization by the State alone does not give rise
to a liberty interest or necessitate procedural due process.
Under Paul, common-law defamation is available for ordinary
insults visited by nonstate actors. Only where there is a stigma
imposed by state action and where that stigma causes a non-
trivial injury which could not have been initiated by a private
citizen will the plus factor be recognized. Although the stigma
factor may be comparable to private defamation, the plus factor
directly implicates state action.
Applying the stigma-plus test to the case before us, we agree
with Norman’s assertion that the statutory registration duties
imposed on him constitute the plus factor. These obligations
alter his legal status and are governmental in nature. The regis-
tration duties imposed on Norman by SOrA are extensive and
onerous. Under Nebraska’s SOrA statutes, a person subject
to SOrA is required within specified time limits to register in
person at a location designated by the State patrol, to notify the
sheriff if he or she moves within the county or outside the state,
and, if he or she moves to a new county, to notify the sheriff
of the new county. § 29-4004. The person must provide DNA
samples, §§ 29-4004(10) and 29-4006(1)(r). The person must
provide certain information, such as his or her remote com-
munication device identifiers, domain names registered by the
person, and blogs and Internet sites maintained by the person,
and verify such information annually for the duration of the
STATE v. NOrMAN 	1007
Cite as 282 Neb. 990

registration period. § 29-4006. If a person required to register
under SOrA violates the act, he or she is guilty of a Class IV
felony for such failure and, for a subsequent failure, is guilty
of a Class III felony and shall be sentenced to a minimum term
of 1 year in prison. § 29-4011.
We believe these and other statutory obligations taken
together constitute the plus factor. “The imposition on a person
of a new set of legal duties that, if disregarded, subject him or
her to felony prosecution, constitutes a ‘change of [that per-
son’s] status’ under state law” under Paul and constitutes the
plus factor. Doe v. Dept. of Public Safety ex rel. Lee, 271 F.3d
38, 57 (2d Cir. 2001) (quoting Paul v. Davis, supra). Although
the issues raised differ from Norman’s claim, we note that the
plus factor has been found by several other courts considering
sex offender registration requirements. Gwinn v. Awmiller, 354
F.3d 1211 (10th Cir. 2004); Doe v. Pryor, 61 F. Supp. 2d 1224
(M.D. Ala. 1999); State v. Germane, 971 A.2d 555 (r.I. 2009);
State v. Briggs, 199 p.3d 935 (Utah 2008); Schuyler v. Roberts,
285 kan. 677, 175 p.3d 259 (2008); State v. Guidry, 105 Haw.
222, 96 p.3d 242 (2004); Noble v. Board of Parole, 327 Or.
485, 964 p.2d 990 (1998).
Having found stigma and the plus factor, we conclude that
Norman had a reputational liberty interest at stake when the
court made a finding under § 29-4003(1)(b)(i)(B) and ordered
him to register under SOrA. Because a liberty interest is at
stake, due process requires notice and a meaningful opportu-
nity to be heard. We therefore must consider what procedural
safeguards are required.
The U.S. Supreme Court considered the requirements of
procedural due process in connection with a sex offender
registration scheme in Connecticut Dept. of Public Safety v.
Doe, 538 U.S. 1, 123 S. Ct. 1160, 155 L. Ed. 2d 98 (2003).
In that case, the U.S. Court of Appeals for the Second Circuit
determined that being listed on the Connecticut state reg-
istry implied that such individual was currently dangerous.
The Second Circuit concluded that public disclosure of sex
offender status deprived offenders of a liberty interest and
that the Connecticut scheme violated procedural due process
because offenders were not afforded a predeprivation hearing
1008 	282 NEBrASkA rEpOrTS

to determine whether they were likely to be “currently danger-
ous.” See Doe v. Dept. of Public Safety ex rel. Lee, supra. The
U.S. Supreme Court assumed without deciding that a liberty
interest was at stake in connection with registering as a sex
offender. The Court reversed the Second Circuit’s decision.
The Court found that under Connecticut’s law, registration
was required based only on the fact that a person had been
convicted of a sex offense and no other finding; that is, no
finding of current dangerousness was required as a predicate to
registration. The Court concluded that “due process does not
entitle [the defendant] to a hearing to establish a fact that is not
material under the [State] statute.” Connecticut Dept. of Public
Safety v. Doe, 538 U.S. at 7.
[12] Unlike the statute in Doe, Nebraska’s SOrA requires
a finding of fact in addition to the fact of conviction as a
predicate to registration for persons like Norman who were
convicted of an offense not sexual in nature. Given the lib-
erty interest at stake, we conclude here that in order to make
the finding initially requiring a person who is guilty of an
offense not sexual in nature to be subject to SOrA, pursuant
to § 29-4003(1)(b)(i)(B), the court is required to give notice to
the defendant that such order is being sought and that a hearing
will be held. The court must then hold a hearing at which the
defendant is given the opportunity to dispute evidence in the
record regarding sexual penetration or sexual contact. For the
hearing to be meaningful, the court must make its finding based
on the evidence in the record, including evidence adduced at
the hearing. We note that § 29-4003(1)(b)(i)(B) provides that
the court’s finding “shall include consideration of the factual
basis for a plea-based conviction and information contained
in the presentence report.” However, the statute does not limit
the court’s consideration to such sources and, because a liberty
interest is at stake, a meaningful hearing requires consideration
of evidence at the hearing as well as the factual basis and the
presentence report. A registration decision is not punitive, and
the fact necessitating registration can be decided by the court
as opposed to a jury. See, Slansky v. Nebraska State Patrol, 268
Neb. 360, 685 N.W.2d 335 (2004); State v. Worm, 268 Neb. 74,
680 N.W.2d 151 (2004).
STATE v. NOrMAN 	1009
Cite as 282 Neb. 990

[13] In regard to the burden of proof, we look initially to
the statute at issue. Section 29-4003(1)(b)(i)(B) under con-
sideration does not specify a standard of proof required for
the finding which subjects the defendant to SOrA. We note,
however, that Nebraska’s Sex Offender Commitment Act pro-
vides statutorily in Neb. rev. Stat. § 71-1209(1) (reissue 2009)
that the State must prove certain facts “by clear and convinc-
ing evidence” before the defendant can be committed. See In
re Interest of O.S., 277 Neb. 577, 763 N.W.2d 723 (2009).
Having examined the burden of proof issue in other jurisdic-
tions, we agree with the observation of the Supreme Court of
Wyoming, where it stated: “It is difficult to identify a general
rule as to the ‘correct’ burden of proof under a sexual offender
registration statute, both because statutes differ so much from
jurisdiction to jurisdiction, and because the questions raised in
the reported cases vary so much one from the other.” JJF v.
State, 132 p.3d 170, 177 (Wyo. 2006). returning to Nebraska
law, we note that although being subject to SOrA does not
implicate liberty interests to the same degree as commitment
under the Sex Offender Commitment Act, we nevertheless
conclude that the finding required under § 29-4003(1)(b)(i)(B)
which converts a defendant convicted of a crime not sexual
in nature into a “sex offender” should also be established by
clear and convincing evidence. We add that because the SOrA
registration requirement is not considered punitive, see Slansky
v. Nebraska State Patrol, supra, and State v. Worm, supra, due
process does not require evidence beyond a reasonable doubt,
see Com. v. Maldonado, 576 pa. 101, 838 A.2d 710 (2003).
However, because of the liberty interests at stake in a registra-
tion decision under the current statute, we conclude that the
fact of sexual penetration or sexual contact should be based on
more than a mere preponderance of the evidence. We are aware
of state statutes that require clear and convincing evidence
for registration and notification decisions. E.g., N.Y. Correct.
Law § 168-n(3) (Mckinney 2003 & Cum. Supp. 2012); 42
pa. Cons. Stat. Ann. § 9795.4(e)(3) (West 2007 & Cum. Supp.
2011). See, also, E.B. v. Verniero, 119 F.3d 1077 (3d Cir.
1997); Doe v. Pataki, 3 F. Supp. 2d 456 (S.D.N.Y. 1998). But
1010 	282 NEBrASkA rEpOrTS

see, JJF v. State, supra; State v. Guidry, 105 Haw. 222, 96
p.3d 242 (2004); In re W.M., 851 A.2d 431 (D.C. 2004); Sweet
v. State, 371 Md. 1, 806 A.2d 265 (2002) (all holding that
appropriate burden was preponderance of evidence). We con-
clude that the appropriate burden of proof for a finding under
§ 29-4003(1)(b)(i)(B) is clear and convincing evidence.
To summarize, in order to fulfill our duty to construe
statutes in a manner that meets constitutional requirements,
including requirements of procedural due process, we construe
§ 29-4003(1)(b)(i)(B) to require the following: When consider-
ing requiring a defendant convicted of an offense not sexual in
nature to register under SOrA pursuant to § 29-4003(1)(b)(i)(B),
the court must give the defendant notice that such order is being
considered and that a hearing will be held to determine whether
the fact required under § 29-4003(1)(b)(i)(B) exists. The State
must establish the fact of sexual penetration or sexual contact
by clear and convincing evidence. The defendant may present
evidence at the hearing to dispute evidence regarding sexual
penetration or sexual contact. After considering the evidence
in the record, including the factual basis for a plea, the pre-
sentence report, and evidence adduced at the hearing, the court
must make a finding, based on clear and convincing evidence,
whether the defendant committed an act of sexual penetration
or sexual contact related to the incident that gave rise to the
defendant’s conviction. If the court so finds, then it must order
that the defendant is subject to SOrA.
We now consider whether the court followed these require-
ments in this case to ensure that Norman received procedural
due process before his reputational liberty interest was impacted
by ordering him to register under SOrA and being publicly
deemed a sex offender. In this case, the court gave Norman
notice that the State sought an order requiring him to register
under SOrA. The court also held an evidentiary hearing and
took evidence. However, the court erred when it ignored the
evidentiary record and instead based its decision that Norman
was subject to SOrA solely on the State’s assertion of sexual
contact in the factual basis for the plea. Because the court did
not consider the evidence adduced at the hearing, Norman was
STATE v. NOrMAN 	1011
Cite as 282 Neb. 990

not given a meaningful opportunity to be heard. We conclude
that the court erred and Norman was denied procedural due
process when it found sexual contact and ordered Norman to
be subject to SOrA based solely on statements from the fac-
tual basis.
Later in this opinion, we reject Norman’s discovery-related
assignment of error and affirm his conviction. Hence, the
trial record made at the hearing is complete. Accordingly, we
must now consider the remedy resulting from the improper
sentencing order directing Norman to register under SOrA.
The improper SOrA portion of the sentence is divisible from
the remainder of the sentence pertaining to incarceration and
probation. See State v. Simnick, 279 Neb. 499, 779 N.W.2d
335 (2010). We therefore reverse that portion of the sen-
tencing order requiring Norman to register under SOrA. We
remand the cause to the district court to make a proper find-
ing under § 29-4003(1)(b)(i)(B) as set forth in this opinion.
We note that because the court already conducted an eviden-
tiary hearing regarding facts relevant to the finding required
under § 29-4003(1)(b)(i)(B), on remand, the court need not
hold a new hearing. Instead, the court should make a finding
whether sexual penetration or sexual contact occurred in con-
nection with the incident giving rise to his conviction for third
degree assault based on the record before it, including evi-
dence adduced at the hearing. Based on such finding, the court
must then determine whether Norman is required to register
under SOrA.
The District Court Did Not Err When It Denied Norman’s
Motions for Depositions and Discovery.
Norman finally asserts that the district court erred when it
denied his motion to take depositions and to allow discovery
of additional information about T.A.W. A plea of guilty or
nolo contendere waives certain claims on appeal. See State v.
Burkhardt, 258 Neb. 1050, 607 N.W.2d 512 (2000). See, also,
State v. Yos-Chiguil, 281 Neb. 618, 798 N.W.2d 832 (2011).
However, we consider it prudent to comment on this assign-
ment of error as further support of our determination that the
1012 	282 NEBrASkA rEpOrTS

hearing on the § 29-4003(1)(b)(i)(B) finding is complete for
purposes of consideration on remand. We find no merit to this
assignment of error.
The trial court has broad discretion in granting discovery
requests and errs only when it abuses its discretion. State v.
Vela, 279 Neb. 94, 777 N.W.2d 266 (2010). We conclude that
the district court did not abuse its discretion with respect to
these discovery rulings, and this assignment of error does not
provide a basis for reversing Norman’s conviction or necessi-
tate additional evidence at the § 29-4003(1)(b)(i)(B) hearing.
After the State initially charged Norman with third degree
sexual assault of a child, Norman sought to depose three coun-
selors who had treated T.A.W. for behavioral disorders and to
discover T.A.W.’s juvenile and residential treatment records
compiled by the Department of Health and Human Services.
The court denied the requests on the basis of the physician-
patient privilege set forth in Neb. rev. Stat. § 27-504 (reissue
2008). Norman and the State thereafter reached a plea agree-
ment whereby the State amended the information and charged
Norman with third degree assault. Norman pled no contest to
that charge.
Norman argues that the district court should have allowed
the discovery under an exception to the physician-patient privi-
lege set forth in § 27-504(d), which provides that “[t]here is no
privilege under this rule . . . in any criminal prosecution involv-
ing injury to [children].” Norman refers us to the original infor-
mation, which charged him with third degree sexual assault of a
child and alleged that he “did not cause serious personal injury
to [T.A.W.].” He argues that the charge impliedly involves an
injury, albeit not a serious injury and that therefore, under
§ 27-504(d), there is no privilege.
regardless of whether the district court’s discovery ruling
was correct at the time it was made, the ruling was not made
in the context of the charge to which Norman pled no contest.
The State amended the information and charged Norman with
third degree assault. At the plea hearing, it was made clear by
the State that the third degree assault to which Norman plead
nolo contendere was based on a threat to T.A.W. made in a
STATE v. NOrMAN 	1013
Cite as 282 Neb. 990

menacing manner, not based on a physical injury. We further
note that the exception to the physician-patient privilege would
not apply to the SOrA hearing, because the purpose of the
hearing is to determine whether Norman had “sexual contact”
with T.A.W., which finding does not necessarily involve a
physical injury to T.A.W.
Norman makes no convincing argument that the district court
abused its discretion when it denied his discovery requests. We
reject this assignment of error.
CONCLUSION
We find merit to Norman’s claim that he was denied pro-
cedural due process in connection with the ruling order-
ing him to register under SOrA. We conclude that before a
court orders a defendant to be subject to SOrA pursuant to
§ 29-4003(1)(b)(i), subsection (B) requires that the court make
a finding, based on clear and convincing evidence, whether
the defendant committed an act of sexual penetration or sexual
contact as part of the incident that gave rise to the defendant’s
conviction for one of the offenses not sexual in nature listed
in § 29-4003(1)(b)(i)(B). We conclude that a liberty interest is
implicated in the making of this finding and that the court must
provide procedural due process when it makes this finding.
The court must make the finding after providing the defendant
proper notice and a meaningful opportunity to be heard. We
determine that although the court in this case provided Norman
notice and a hearing, the court erred when it based its finding
solely on statements in the State’s factual basis for Norman’s
plea and explicitly ignored the evidence at the hearing. We
therefore reverse that portion of the sentencing order requiring
Norman to be subject to SOrA, and we remand the cause with
directions to make a finding under § 29-4003(1)(b)(i)(B) based
on all the evidence in the record, including evidence adduced
at the hearing, and to determine based on such finding whether
Norman is subject to SOrA.
We reject Norman’s remaining discovery-related assignment
of error. We therefore affirm his conviction, and we affirm
his sentence, except we vacate the portion of the sentence in
which the court ordered that Norman was subject to SOrA,
1014 	282 NEBrASkA rEpOrTS

and remand the cause for a finding whether Norman is subject
to SOrA consistent with this opinion.
A ffirmed in pArt, And in pArt reversed And
remAnded for further proceedings.
heAvicAn, C.J., participating on briefs.
Wright, J., not participating in the decision.
IN rE INTErEST OF ELIzABETH S. 	1015
Cite as 282 Neb. 1015
in re interest of elizAbeth s., A child
under 18 yeArs of Age .
stAte of nebrAskA And depArtment of heAlth
And humAn services , Appellees , v.
victoriA g., AppellAnt.
809 N.W.2d 495
Filed January 6, 2012. 	No. S-11-153.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases
de novo on the record and reaches its conclusions independently of the juvenile
court’s findings.
2. ____: ____. An appellate court reviews questions of law independently of the
juvenile court’s conclusions.
3. Minors: Juvenile Courts. The foremost purpose and objective of the Nebraska
Juvenile Code is to promote and protect the juvenile’s best interests.
4. Juvenile Courts: Parental Rights: Adoption. Where a juvenile has been adju-
dicated pursuant to Neb. rev. Stat. § 43-247(3)(a) (reissue 2008) and a perma-
nency objective of adoption has been established, a juvenile court has authority
under the juvenile code to order the Nebraska Department of Health and Human
Services to accept a tendered relinquishment of parental rights.
5. Juvenile Courts: Parental Rights: Evidence. A parent’s prior relinquishment of
parental rights may be considered as evidence supporting adjudication or termina-
tion of parental rights in a future proceeding involving another child.
6. Juvenile Courts: Parental Rights. A juvenile court should exercise its author-
ity to order the Nebraska Department of Health and Human Services to accept a
valid relinquishment with respect to an adjudicated child when it would be in the
best interests of that child to do so.
Appeal 	from 	the 	Separate 	Juvenile 	Court 	of 	Lancaster
County: lindA s. porter, Judge. Affirmed.
Sanford J. pollack, of pollack & Ball, L.L.C., for appellant.
Shellie D. Sabata, Deputy Lancaster County Attorney, for
appellee State of Nebraska.