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Decisions of the Nebraska Court of Appe

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STATE v. OLBRICHT

Cite as 23 Neb. App. 607

State of Nebraska, appellee, v

Cody Olbricht, also known

Cody Olbrich, appella

___ N.W.2d ___

Filed February 9, 2016. No. A-15-404.

1. Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, whether the evidence is direct, circumstantial, or a combination thereof, the standard is the same: 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.

2. ____: ____. The relevant question when an appellate court reviews a 

sufficiency of the evidence claim 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.

3. Criminal Law: Judgments: Appeal and Error. While in a bench trial 

of a criminal case the court’s findings have the effect of a verdict and 

will not be set aside unless clearly erroneous, an appellate court has an 

obligation to reach an independent, correct conclusion regarding questions of law.

4. Criminal Law: Minors: Words and Phrases. For the purposes of 

Neb. Rev. Stat. § 28-707(7) (Cum. Supp. 2014), the statute criminalizing knowing and intentional child abuse resulting in serious bodily 

injury, serious bodily injury is defined as bodily injury which involves 

a substantial risk of death, or which involves substantial risk of serious 

permanent disfigurement, or protracted loss or impairment of the function of any part or organ of the body.

5. Criminal Law: Minors: Convictions: Appeal and Error. Child 

abuse convictions will be upheld where the evidence establishes that 

the defendant was the sole caregiver for the victim at the time the 

abuse occurred.

Nebraska Supreme Court Online Library

www.nebraska.gov/courts/epub/

02/09/2016 01:20 PM CST
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STATE v. OLBRICHT

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6. Double Jeopardy: Evidence: Appeal and Error. The Double Jeopardy 

Clause precludes a second trial once the reviewing court has found the 

evidence legally insufficient.

Appeal from the District Court for Scotts Bluff County: 

Randall L. Lippstreu, Judge. Reversed and vaca

Leonard G. Tabor for appellant.

Douglas J. Peterson, Attorney General, and George R. Love 

for appellee.

Moore, Chief Judge, and Irwin and Inbody, Judg

Irwin, Judge

I. INTRODUCTION

Cody Olbricht, also known as Cody Olbrich, appeals his 

conviction and sentence for knowing and intentional child 

abuse resulting in serious bodily injury. On appeal, Olbricht 

argues that there was insufficient evidence to support his 

conviction, the trial court erred in overruling his motions 

for directed verdict and new trial, the trial court erred in 

making numerous evidentiary rulings, and Olbricht received 

an excessive sentence. Upon our review, we find that there 

was insufficient evidence to support Olbricht’s conviction. 

Accordingly, we reverse Olbricht’s conviction and vacate 

his sentence.

II. BACKGROUND

On September 28, 2014, a 3-year-old child, A.M., was 

admitted to an emergency room in Scottsbluff, Nebraska. 

A.M. had bruising on her face, torso, arms, and legs. Doctors 

also observed that A.M. was not interactive, appeared sleepy, 

and had bleeding in the white part of her left eye. Due to 

A.M.’s symptoms, doctors suspected she might be suffering 

from a “subdural hemorrhage” (brain bleed). A CAT scan 

revealed a brain bleed and infarct in A.M.’s brain. Further 

examination revealed that A.M. also had a laceration on the 
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left lobe of her liver. Due to the severity of her brain injury, 

she was transferred by helicopter to a hospital in Denver, 

Colorado, for treatment.

A.M. had been transported to the emergency room by her 

maternal grandmother, Lynelle Pahl. Cassandra Miller, who is 

A.M.’s mother, and Olbricht, who is Miller’s boyfriend, also 

came to the emergency room shortly after A.M. was admitted. 

Olbricht is not A.M.’s biological father, but Olbricht, Miller, 

and A.M. lived together, along with the couple’s son.

Olbricht and Miller informed the doctors at the emergency 

room that A.M. had not been feeling well for the past week. 

They explained that A.M. was less active, had a headache, and 

had vomited throughout the week. Olbricht and Miller also 

expressed their belief that A.M. might have a bleeding disorder 

that caused her bruises. Laboratory tests revealed that she did 

not suffer from a bleeding disorder that would have caused her 

bruising or the brain bleed.

The emergency room doctor suspected that A.M. may have 

been abused and notified the authorities. Olbricht was subsequently charged with knowing and intentional child abuse 

resulting in serious bodily injury to A.M. See Neb. Rev. Stat. 

§ 28-707(1) and (7) (Cum. Supp. 2014).

The matter proceeded to a bench trial held on March 20, 23, 

and 24, 2015. The State subpoenaed Miller to testify. Miller 

testified that she and Olbricht had been “boyfriend and girlfriend” for 21

⁄2 years. According to Miller, A.M. referred to 

Olbricht as “daddy.”

Miller testified that A.M. had previously received various 

injuries while in Olbricht’s care. First, Miller testified that 

in March 2014, A.M. cut her bottom lip while Olbricht was 

watching her. In another incident that Miller said she believed 

occurred in September 2014, A.M. received burns to her lip 

and face while under Olbricht’s supervision. With regard to the 

burning incident, Miller testified that A.M. was in the shower 

when Miller got home and that A.M.’s face was red. Miller 

next testified that A.M. suffered bruises to her right hip in 
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September 2014. During that incident, A.M. was home with 

Olbricht while Miller was at work. Olbricht told Miller that 

A.M. had fallen playing on rocks in the backyard. Next, Miller 

testified that she was at work on September 20 while Olbricht 

cared for A.M. When Miller returned home, she noticed the 

white of A.M.’s left eye was red.

Miller also testified regarding the events of the day before 

A.M. was admitted to the emergency room, September 27, 

2014. Miller testified that she worked outside the home from 

approximately 10 a.m. to 3:40 p.m. while Olbricht watched 

A.M., the couple’s son, and Olbricht’s two other children. 

According to Miller, A.M. received a bruise to her cheek just 

after Miller got off work while A.M. was playing with the other 

children. Miller testified that she and Olbricht were in another 

room when one of Olbricht’s children yelled that another child 

had hit A.M.

Miller testified that Olbricht took his other children back to 

their mother’s care at some point after Miller returned home 

from work. Miller testified that she and Olbricht then took 

A.M. to a fast-food restaurant “to get something to eat” and 

drove her to a babysitter in Lyman, Nebraska. Miller testified 

that just as they arrived at the gas station in Lyman to drop 

A.M. off with the babysitter, A.M. vomited. According to the 

babysitter, Miller changed A.M.’s clothes and then she and 

Olbricht left A.M. with the babysitter for the night.

The babysitter testified that she knew Olbricht and Miller 

because she worked with Pahl, Miller’s mother. The babysitter testified that when she met Olbricht and Miller to pick 

up A.M. on September 27, 2014, A.M. had just vomited on 

herself. According to the babysitter, Olbricht was upset with 

A.M. for vomiting and was telling her to stop. The babysitter 

noticed that A.M. had marks on her face, neck, and back. The 

babysitter testified that she took a picture of A.M.’s bruises 

and sent them to Pahl. According to the babysitter, A.M. 

was lethargic and vomited numerous times that night. The 

babysitter also testified over objection that when she informed 
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A.M. her grandmother, Pahl, was going to pick her up, A.M. 

seemed scared to go home:

She seemed terrified and she didn’t want to go home. She 

kept expressing to me she didn’t want to go home.

. . . .

. . . And then when I asked her if somebody was hurting her at home and she explained to me that, yes, and I 

said who and she said, “daddy.” And I said, “where does 

daddy hurt you?” She pointed to her shin and she pointed 

to her foot. And I had rubbed her head and I felt lumps 

all along her head and I said, “did he hit your head, too,” 

and she said yes.

The State did not ask the babysitter if A.M. had indicated a 

timeframe for when she was hurt or hit by Olbricht.

Pahl testified that she was at work when the babysitter 

texted her the photograph of A.M.’s bruises around 8 p.m. on 

September 27, 2014. Pahl spoke with the babysitter by telephone and decided that Pahl would pick up A.M. in the morning. Pahl testified that when she picked A.M. up on September 

28, A.M. was frail, lethargic, and could not hold her head up. 

Pahl transported A.M. to the emergency room and notified 

Olbricht and Miller.

Pahl testified that she had seen A.M. twice during the week 

leading up to A.M.’s hospitalization. On Monday, September 

22, 2014, Pahl watched A.M. alone at her house for approximately an hour. On either September 24 or 25, Olbricht and 

Miller brought A.M. to visit Pahl at work. It is not entirely 

clear from the record, but it appears that Pahl was not alone 

with A.M. during the work visit.

The emergency room doctor who had treated A.M., Jeffrey 

Salisbury, also testified at the trial. Dr. Salisbury opined that 

the subdural hemorrhage and infarct in A.M.’s brain were 

injuries that presented a substantial risk of death. Dr. Salisbury 

also testified that “a significant liver laceration that is bleeding 

[is] the most life threatening” because the liver, unlike some 

other organs, cannot be removed. According to Dr. Salisbury, 
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there was no way to tell exactly how old A.M.’s brain injury 

was at the time she came to the emergency room. Dr. Salisbury 

opined that the brain injury was “acute,” meaning it could have 

been anywhere from 5 minutes to 2 weeks old.

The State also presented the testimony of Dr. Andrew 

Sirotnak, a forensic pediatrician and a member of the medical 

team that treated A.M. at the hospital in Denver. Dr. Sirotnak 

testified that he had diagnosed A.M. as a “battered child,” 

meaning “a child that’s been injured in a multi system manner 

over time.” According to Dr. Sirotnak, A.M.’s injuries were 

likely nonaccidental because some occurred over soft tissue 

and others displayed a bruising pattern that indicated they 

were inflicted with an object. With respect to the injuries on 

A.M.’s legs and hip, Dr. Sirotnak opined that she had been 

hit with a wire hanger because the bruises were triangular 

in shape.

Dr. Sirotnak testified that A.M.’s brain injury posed a substantial risk of death because untreated brain injury can “progress[] to seizures and . . . lead to brain dysfunction, [and] 

respiratory or cardiac arrest as well.” With respect to A.M.’s 

lacerated liver, Dr. Sirotnak testified, “[T]he liver injury in 

isolation, the way it was graded or seen on CT, I believe it 

was a laceration, and it was handled nonoperatively, there’s 

also a risk that these things can bleed and, of course, recurrent 

trauma concerns that can bleed.”

With respect to what caused A.M.’s injuries, Dr. Sirotnak 

testified that her liver laceration was likely caused by blunt 

trauma akin to the amount of force seen in a car accident. 

Dr. Sirotnak gave his opinion that based on A.M.’s medical history, there was no accidental explanation for her liver 

injury. Dr. Sirotnak testified that A.M.’s brain injury was 

“clearly something that was inflicted” and that the injury was 

likely the result of being “thrown from something or thrown 

by something.”

On cross-examination, Dr. Sirotnak testified that the timing of A.M.’s injuries “would vary depending on the type 
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of mechanism that caused it.” Dr. Sirotnak testified that 

he believed A.M.’s brain injury occurred “within . . . a 

day or two” or within a “few days” of her hospitalization. 

Dr. Sirotnak testified that he could not tell when the liver 

injury occurred.

At the close of the State’s case, Olbricht moved for 

a directed verdict, arguing “the State failed to present a 

prima fa[cie] case.” The court overruled the motion for 

directed verdict.

Olbricht then proceeded to present his defense. Olbricht 

called numerous family members and acquaintances who testified that A.M. was always healthy, happy, and clean and that 

Olbricht had never abused her. Olbricht also called Miller to 

the stand. Miller testified that, in addition to the prior incidents 

in which A.M. was injured while in Olbricht’s care, A.M. had 

also suffered injuries in Miller’s care. Miller testified that in 

August or September 2014, both she and Olbricht were home 

when A.M. fell down the stairs. Miller also testified that on 

September 16, she was with A.M. at the park when A.M. got 

hit in the head by a swing.

Lastly, Olbricht took the stand in his own defense. Olbricht 

provided explanations for A.M.’s previous injuries. According 

to Olbricht, A.M. received the bruise on her right hip while 

playing on bricks behind the family’s apartment on September 

20, 2014. With respect to the bruises on A.M.’s leg, Olbricht 

testified that she had been bumped in the leg by the children’s 

motorized toy car. Olbricht testified that he had not seen the 

bruises on A.M.’s ribs before she was hospitalized. According 

to Olbricht, the white of A.M.’s left eye became red after 

she had been playing with the couple’s son. With respect to 

A.M.’s cut lip, Olbricht testified that he had been bathing 

A.M. and left to get a towel. A.M.’s lip was bleeding when 

Olbricht returned to the bathroom, leading Olbricht to believe 

she had slipped and cut her lip on the shower railing. With 

respect to the burns A.M. had suffered to her face and mouth, 

Olbricht testified that he had left her in the shower to change 
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the diaper of the couple’s son and that she had turned the 

water to hot. Lastly, Olbricht testified regarding the incident 

in which A.M. received a bruise on her cheek after Miller had 

returned home from work on September 27, 2014. Olbricht 

testified that one of his children had hit A.M. with either 

his hand or a toy while he and Miller were in another room. 

Olbricht denied abusing A.M.

The court found Olbricht guilty of knowing and intentional 

child abuse resulting in serious bodily injury and issued a 

written verdict. In the written verdict, the court found that 

both A.M.’s brain bleed and her lacerated liver created a substantial risk of death. The court noted that neither Olbricht 

nor Miller could provide an explanation for A.M.’s injuries. 

The court also referenced Dr. Sirotnak’s diagnosis of A.M. 

as a battered child based on her many injuries, her bruises in 

various stages of healing, and the pattern of her bruises. The 

court stated that “[t]he majority, if not all, of [A.M.’s] documented injuries occurred when she was in the sole physical 

care of . . . Olbricht.” Lastly, the court noted the evidence that 

A.M. was scared of Olbricht and had told the babysitter that 

Olbricht had hurt her. Based on this evidence, the court found 

Olbricht guilty of child abuse.

After the verdict, Olbricht moved for a new trial, arguing 

that “the evidence was just too weak by the State.” The court 

overruled Olbricht’s motion for new trial.

At the sentencing hearing, the court pronounced Olbricht’s 

sentence to be 15 to 30 years’ imprisonment, although the written journal entry and judge’s notes for the sentencing reflect 

a sentence of 18 to 30 years’ imprisonment. Olbricht appeals 

from his sentence and conviction.

III. ASSIGNMENTS OF ERROR

Olbricht assigns five errors: (1) The evidence was insufficient to support his conviction for child abuse, (2) the trial 

court erred when it overruled Olbricht’s motion for directed 

verdict at the close of the State’s case, (3) the trial court erred 
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in admitting six items of evidence over Olbricht’s objections, 

(4) the trial court erred in overruling Olbricht’s motion for new 

trial, and (5) Olbricht received an excessive sentence.

IV. ANALYSIS

Olbricht first argues that there was insufficient evidence 

adduced at the trial to sustain his conviction for knowing 

and intentional child abuse resulting in serious bodily injury. 

We agree that there was insufficient evidence to prove that 

Olbricht was the person who caused A.M.’s brain bleed or lacerated liver. We conclude this because the evidence presented 

never showed, directly or circumstantially, that A.M.’s serious 

bodily injuries occurred during a discrete timeframe when 

Olbricht was the only adult in her presence.

[1,2] In reviewing a sufficiency of the evidence claim, 

whether the evidence is direct, circumstantial, or a combination 

thereof, the standard is the same: 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. State v. Hale, 290 Neb. 70, 858 N.W.2d 543 (2015). 

The relevant question 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. Id.; State v. McClain, 285 Neb. 

537, 827 N.W.2d 814 (2013).

[3] While in a bench trial of a criminal case the court’s findings have the effect of a verdict and will not be set aside unless 

clearly erroneous, an appellate court has an obligation to reach 

an independent, correct conclusion regarding questions of law. 

State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003).

[4] Olbricht was charged with knowingly and intentionally 

committing child abuse resulting in serious bodily injury. See 

§ 28-707(7). “Serious bodily injury” is defined as “bodily 

injury which involves a substantial risk of death, or which 

involves substantial risk of serious permanent disfigurement, or protracted loss or impairment of the function of 
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any part or organ of the body.” Neb. Rev. Stat. § 28-109(20) 

(Reissue 2008).

[5] Nebraska courts have upheld child abuse convictions 

where the evidence established that the defendant was the sole 

caregiver for the victim at the time the abuse occurred. For 

example, in State v. Robinson, 278 Neb. 212, 769 N.W.2d 366 

(2009), the Nebraska Supreme Court determined that there was 

sufficient evidence to sustain the defendant’s conviction for 

knowing or intentional child abuse resulting in death. The child 

had died of trauma to the head and abdomen, which a doctor 

labeled as nonaccidental. Id. A pediatric physician testified that 

the child would have been unconscious within 15 to 20 minutes after sustaining the injuries. Id. The child’s mother testified that she left the victim with the defendant for the entire 

afternoon and that the child was already unconscious and cold 

when she picked her up. Id. The court stated, “[E]vidence that 

[the child] was in [the defendant’s] sole care during the time 

she suffered injuries was circumstantial evidence from which 

the jury could have inferred that he caused the injuries.” Id. at 

222, 769 N.W.2d at 373-74.

Similarly, in State v. Chavez, 281 Neb. 99, 793 N.W.2d 

347 (2011), the court upheld the defendant’s conviction for 

intentional child abuse resulting in death. The doctor who performed the autopsy opined that the cause of death was blunt 

force head injury consistent with shaking and that the injury 

occurred within a couple hours of the child’s being found not 

breathing. Id. The child’s mother testified that she left the child 

alone with the defendant from 5:45 to 7:30 a.m. and discovered 

the child was not breathing about a half an hour later. Id. The 

court concluded that “[t]he evidence . . . established that [the 

child’s] death was the result of shaken baby syndrome and that 

[the defendant], as sole caregiver, had shaken her during the 

relevant timeframe.” Id. at 110, 793 N.W.2d at 356 (emphasis supplied).

In State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003), 

the defendant was convicted of first degree assault for injuring 
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an 18-month-old child in her care. The child had been dropped 

off at the defendant’s home daycare at 7:50 a.m. Id. The 

defendant’s husband left the home around 10 a.m. Id. At 10:55 

a.m., the defendant summoned her neighbor for help because 

the child was in distress. Id. A doctor testified that the child 

had suffered a brain injury indicative of shaking. Id. The doctor 

opined that the symptoms would have manifested themselves 

within minutes. Id. The court upheld the defendant’s conviction, stating, “The testimony of witnesses was such that the 

jury could reasonably find that [the defendant] was the sole 

adult in [the child’s] presence at the time [the child] sustained 

her injury.” Id. at 148, 662 N.W.2d at 630. See, also, State 

v. Kuehn, 273 Neb. 219, 236, 728 N.W.2d 589, 604 (2007) 

(upholding defendant’s conviction for negligent child abuse 

because “[the child] was injured while he was in [the defendant’s] care”); State v. Jim, 13 Neb. App. 112, 688 N.W.2d 895 

(2004) (affirming trial court’s denial of defendant’s motion to 

dismiss or for directed verdict in case of child abuse resulting in death where evidence demonstrated that defendant was 

alone with child from 4:35 to 11:30 p.m. and child’s body was 

found stiff in his bed the next morning, indicating he had been 

dead for number of hours); State v. Fitzgerald, 1 Neb. App. 

315, 493 N.W.2d 357 (1992) (finding sufficient evidence supported defendant’s conviction for intentional child abuse where 

evidence demonstrated that defendant was alone with child all 

morning and child had been intentionally burned by hot water 

sometime in late morning).

In contrast, there was no evidence adduced at trial indicating a definite period of time when A.M.’s abuse must have 

occurred and during which Olbricht was her sole caregiver. 

Dr. Salisbury testified that A.M.’s brain injury presented a 

substantial risk of death. Dr. Salisbury also opined that a 

liver laceration was “life threatening” because the liver, unlike 

other organs, cannot be removed. Similarly, Dr. Sirotnak testified that A.M.’s brain injury could have led to seizures, brain 

dysfunction, and respiratory or cardiac arrest. With respect to 
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A.M.’s liver injury, Dr. Sirotnak opined that there was a risk 

of bleeding and recurrent trauma. Viewed in the light most 

favorable to the State, the doctors’ testimony supports a finding 

that either A.M.’s brain injury or her liver injury were serious 

bodily injuries within the meaning of § 28-109(20). There was 

no testimony that A.M.’s other injuries—the bruises on her 

cheek, legs, hip, torso, or back; the cut on her lip; or the burns 

to her face—involved a substantial risk of death. Therefore, 

none of these other injuries could be the basis for convicting 

Olbricht of knowing and intentional child abuse resulting in 

serious bodily injury.

According to the evidence at trial, the timeframe in which 

A.M.’s serious bodily injuries were inflicted was broad. 

Specifically, Dr. Salisbury testified that A.M.’s brain injury 

was “acute,” meaning it could have occurred anywhere from 5 

minutes to 2 weeks before she came to the emergency room. 

Dr. Sirotnak testified that A.M.’s brain injury occurred within 

“a day or two” of her hospitalization. Neither doctor provided 

a specific timeframe in which the liver injury occurred.

A.M. was not in Olbricht’s sole care for the week or the 

“day or two” before she was hospitalized. For example, Miller 

was with both Olbricht and A.M. during the afternoon and 

evening of September 27, 2014, the day before A.M. was hospitalized. Additionally, A.M. was alone with Pahl for approximately an hour 6 days before her hospitalization. Furthermore, 

the night before her hospitalization, A.M. was in the care of 

the babysitter and neither Olbricht nor Miller was present. 

Therefore, pursuant to Dr. Sirotnak’s opinion that the injury 

occurred within “a day or two” of A.M.’s hospitalization, 

Olbricht, Miller, and the babysitter cared for A.M. during the 

relevant timeframe. Pursuant to Dr. Salisbury’s opinion that 

A.M.’s brain injury was between 5 minutes and 2 weeks old, 

Olbricht, Miller, the babysitter, and Pahl all cared for A.M. 

during the relevant timeframe. With respect to A.M.’s liver 

injury, neither doctor provided a timeframe during which the 

injury was inflicted, thereby making it impossible to establish 
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that Olbricht was A.M.’s sole caregiver when the liver laceration occurred. The North Carolina Supreme Court articulated 

the rule well when it stated, “Where an adult has exclusive 

custody of a child for a period of time and during such time 

the child suffers injuries which are neither self-inflicted nor 

accidental, the evidence is sufficient to create an inference 

that the adult inflicted an injury.” State v. Perdue, 320 N.C. 

51, 63, 357 S.E.2d 345, 353 (1987) (emphasis supplied). 

Here, the lack of evidence that Olbricht had exclusive custody 

of A.M. during the time when her substantial injuries were 

inflicted prevents the conclusion that Olbricht committed 

child abuse.

In urging us to find sufficient evidence to sustain Olbricht’s 

conviction, the State relies on the district court’s comment 

that “[t]he majority, if not all, of [A.M.’s] documented injuries occurred when she was in the sole physical care of . . . 

Olbricht.” Brief for appellee at 12. It is true that Olbricht and 

Miller testified about a number of injuries that occurred while 

Olbricht was supervising A.M. However, the record does not 

support a finding that Olbricht caused either of the two injuries 

that could have supported his conviction: A.M.’s brain bleed 

and lacerated liver. Specifically, the State failed to adduce 

evidence that A.M. was in Olbricht’s sole care at the time 

she received the injuries that led to the brain bleed or lacerated liver.

We note that there was some circumstantial evidence that 

A.M. was afraid of Olbricht, that she said Olbricht hurt her, 

and that she had previously suffered injuries while in Olbricht’s 

care. However, this evidence is insufficient to overcome the 

fact that at least two other individuals could not be excluded 

as having caused the brain bleed and lacerated liver that are of 

significance in this case.

Viewing the evidence in the light most favorable to the 

State, a rational trier of fact could not have found beyond 

a reasonable doubt that Olbricht was the one who inflicted 

A.M.’s serious bodily injuries. We say this because the 
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evidence presented never showed, directly or circumstantially, 

that A.M.’s serious bodily injuries occurred during a discrete 

timeframe when Olbricht was the only adult in her presence. 

Accordingly, we reverse Olbricht’s conviction for knowing and 

intentional child abuse resulting in serious bodily injury and 

vacate his sentence.

[6] The Double Jeopardy Clause precludes a second trial 

once the reviewing court has found the evidence legally insufficient. State v. Welch, 275 Neb. 517, 747 N.W.2d 613 (2008). 

Because we find the evidence legally insufficient to support 

Olbricht’s conviction, Olbricht cannot be retried.

We do not reach Olbricht’s additional assignments of error 

because we conclude there was insufficient evidence to sustain 

his conviction. Similarly, because we vacate Olbricht’s sentence, we need not address the discrepancy between the oral 

sentence pronounced at the sentencing hearing and the sentence recorded in the trial transcript.

V. CONCLUSION

Upon our review, we find that there was insufficient evidence to support Olbricht’s conviction for knowing and intentional child abuse resulting in serious bodily injury. We reverse 

Olbricht’s conviction and vacate his sentence.

Reversed and vaca