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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. KILGORE

Cite as 30 Neb. App. 273

State of Nebraska, appellee, v. 

Marcus A. Kilgore, appellant.

___ N.W.2d ___

Filed October 19, 2021. No. A-20-886.

1. Criminal Law: Courts: Appeal and Error. In an appeal of a criminal 

case from the county court, the district court acts as an intermediate 

court of appeals, and its review is limited to an examination of the 

record for error or abuse of discretion.

2. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error 

appearing on the record.

3. Judgments: Appeal and Error. When reviewing a judgment for errors 

appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is 

neither arbitrary, capricious, nor unreasonable.

4. Criminal Law: Courts: Appeal and Error. When deciding appeals 

from criminal convictions in county court, an appellate court applies the 

same standards of review that it applies to decide appeals from criminal 

convictions in district court.

5. 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.

6. Criminal Law: Parent and Child. Neb. Rev. Stat. § 28-1413(1) 

(Reissue 2016) codifies the common-law defense against criminal liability for a parent’s use of force in, among other circumstances, punishing 

his or her child’s misbehavior.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/19/2021 08:07 AM CDT
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. KILGORE

Cite as 30 Neb. App. 273

7. ____: ____. At common law, a parent, or one standing in the relation 

of parent, was not liable either civilly or criminally for moderately and 

reasonably correcting a child, but it was otherwise if the correction was 

immoderate and unreasonable.

8. ____: ____. The question of whether a parent’s use of physical force 

to discipline his or her child was protected under Neb. Rev. Stat. 

§ 28-1413(1) (Reissue 2016) presents a question of fact for the fact 

finder.

9. Criminal Law: Evidence: Appeal and Error. In reviewing a sufficiency of the evidence claim, 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.

Appeal from the District Court for Douglas County, Duane 

C. Dougherty, Judge, on appeal thereto from the County Court 

for Douglas County, Thomas K. Harmon, Judge. Judgment of 

District Court affirmed.

Thomas C. Riley, Douglas County Public Defender, and 

Brian D. Craig for appellant.

Matthew Kuhse, Omaha City Prosecutor, and Kevin J. Slimp 

for appellee.

Riedmann, Bishop, and Arterburn, Judges.

Bishop, Judge.

INTRODUCTION

Marcus A. Kilgore appeals from an order of the Douglas 

County District Court affirming his conviction and sentence 

in the county court for Douglas County for caretaker neglect 

in violation of the Omaha Municipal Code. On appeal to this 

court, Kilgore claims that the evidence was insufficient to support his conviction. We affirm.

BACKGROUND

On August 28, 2019, Kilgore’s 9-year-old daughter went 

to her school counselor expressing that she was feeling pain 
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Nebraska Court of Appeals Advance Sheets

30 Nebraska Appellate Reports

STATE v. KILGORE

Cite as 30 Neb. App. 273

from her lower back. She reported that Kilgore had spanked 

her and her 12-year-old brother the previous day with a belt. 

When the children returned home from school that previous 

day, Kilgore instructed them to clean their rooms and finish 

other chores around the house. Kilgore’s son testified that 

Kilgore set a time limit of about 11⁄2 hours for the two children to finish their chores. When the chores were not done 

on time because they were “messing around,” Kilgore warned 

his children that he would spank them if they did not finish 

their chores quickly enough. When the chores were still not 

completed after “multiple warnings,” Kilgore proceeded to 

spank both children with a belt. Kilgore’s daughter recalled 

that Kilgore spanked her “[t]hree or four” times with the belt, 

“but one lash went . . . right above” her backside and struck her 

lower back instead. That strike left a red “healing welt” on her 

lower back, and she stated that it began hurting the next day 

before she went to the school counselor. She described that the 

spot where she was hit on her back did not hurt “very bad, but 

it hurt.” The counselor called the Omaha Police Department. 

Officers spoke with Kilgore’s daughter and photographed the 

mark left on her lower back by the belt, and these photographs 

are included as an exhibit in the record. During her testimony, 

Kilgore’s daughter affirmed that the welt faded at some point 

after she reported to the school counselor.

On September 30, 2019, the State filed a criminal complaint 

in the county court charging Kilgore with one count of caretaker neglect, in violation of Omaha Mun. Code, ch. 20, art. 

IV, § 20-97 (2004), and one count of disorderly conduct, in 

violation of Omaha Mun. Code, ch. 20, art. III, § 20-42 (1980), 

both alleged to have occurred on August 27. Following a bench 

trial held on January 28, 2020, the county court found Kilgore 

guilty on the charge of caretaker neglect and not guilty on the 

charge of disorderly conduct. At a sentencing hearing held on 

May 28, the court sentenced Kilgore to 21 days in jail.

Kilgore appealed his conviction and sentence to the district 

court. A statement of errors was filed with the district court 
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30 Nebraska Appellate Reports

STATE v. KILGORE

Cite as 30 Neb. App. 273

on June 26, 2020, alleging that (1) the evidence was insufficient to sustain his conviction, (2) the county court erred 

in “admitting evidence of character . . . or habit [regarding 

Kilgore’s prior act of using a belt for disciplinary purposes] 

when the State failed to properly file a motion in limine seeking to introduce such evidence,” (3) the county court erred in 

“admitting [the same] evidence of habit under Neb. Rev. Stat. 

§ 27-406 [(Reissue 2016)] in place of character evidence proffered by the State under Neb. Rev. Stat. § 27-404 [(Reissue 

2016)],” (4) the county court erred in “admitting [the same] 

evidence of character or habit because its probative value was 

substantially outweighed by the potential for unfair prejudice,” 

and (5) the county court erred in holding that “the only force 

that can be used by a parent for corporal punishment is spanking by hand and not by a physical instrument.”

In the order entered on November 12, 2020, the district court 

found that the county court abused its discretion in admitting 

testimony by an Omaha police officer regarding Kilgore’s 

specific prior act of using a belt to discipline his children. The 

district court nonetheless affirmed Kilgore’s conviction and 

sentence, concluding that “there was sufficient independent 

evidence to support the [county court’s] finding of guilt, without including the evidence wrongfully admitted.”

Kilgore appeals from the district court’s order.

ASSIGNMENT OF ERROR

Kilgore claims the district court erred in affirming the 

county court’s finding of guilt, because there was insufficient 

evidence to prove beyond a reasonable doubt that he was guilty 

of caretaker neglect.

STANDARD OF REVIEW

[1-4] In an appeal of a criminal case from the county court, 

the district court acts as an intermediate court of appeals, and 

its review is limited to an examination of the record for error 

or abuse of discretion. State v. Collins, 307 Neb. 581, 950 
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30 Nebraska Appellate Reports

STATE v. KILGORE

Cite as 30 Neb. App. 273

N.W.2d 89 (2020). Both the district court and a higher appellate court generally review appeals from the county court for 

error appearing on the record. Id. When reviewing a judgment 

for errors appearing on the record, an appellate court’s inquiry 

is whether the decision conforms to the law, is supported by 

competent evidence, and is neither arbitrary, capricious, nor 

unreasonable. Id. When deciding appeals from criminal convictions in county court, we apply the same standards of review 

that we apply to decide appeals from criminal convictions in 

district court. Id.

[5] 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. State v. Price, 306 Neb. 38, 

944 N.W.2d 279 (2020).

ANALYSIS

Kilgore was convicted of caretaker neglect under § 20-97 

of the Omaha Municipal Code. A copy of this ordinance is 

included as part of the record before this court. As relevant 

to the facts of this appeal, this ordinance provides in part that 

“[a] person commits caretaker neglect if he or she negligently 

causes or permits [a] minor child to be placed in a situation 

that endangers his or her life or physical or mental health” or 

“to be cruelly confined or cruelly punished.”

[6-8] Kilgore claims on appeal that his conduct could not 

satisfy the elements of caretaker neglect, and he further argues 

that his use of a belt to punish his children falls within the 

protection afforded to parents under Neb. Rev. Stat. § 28-1413 
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30 Nebraska Appellate Reports

STATE v. KILGORE

Cite as 30 Neb. App. 273

(Reissue 2016) to use force in disciplining their minor children. Section 28-1413(1) provides that the use of force upon or 

toward the person of another is justifiable if

[T]he actor is the parent or guardian or other person similarly responsible for the general care and supervision of 

a minor or a person acting at the request of such parent, 

guardian, or other responsible person and:

(a) Such force is used for the purpose of safeguarding 

or promoting the welfare of the minor, including the prevention or punishment of his or her misconduct; and

(b) Such force is not designed to cause or known to 

create a substantial risk of causing death, serious bodily 

harm, disfigurement, extreme pain or mental distress, or 

gross degradation.

Section 28-1413(1) codifies the common-law defense against 

criminal liability for a parent’s use of force in, among other 

circumstances, punishing his or her child’s misbehavior. See 

Maria A. on behalf of Leslie G. v. Oscar G., 301 Neb. 673, 919 

N.W.2d 841 (2018). At common law, a parent, or one standing in the relation of parent, was not liable either civilly or 

criminally for moderately and reasonably correcting a child, 

but it was otherwise if the correction was immoderate and 

unreasonable. Id. See, also, State v. Sinica, 220 Neb. 792, 372 

N.W.2d 445 (1985) (observing that cruel punishment, as contemplated by Neb. Rev. Stat. § 27-707(1) (Cum. Supp. 1984), 

which codified elements of child abuse, is distinct from and 

does not include reasonable disciplinary measures). The question of whether such discipline was reasonable, and therefore 

protected under § 28-1413(1), presents a question of fact for 

the fact finder. See State v. Miner, 216 Neb. 309, 343 N.W.2d 

899 (1984).

Kilgore claims that his conduct in disciplining his daughter 

with a belt “did not place her in danger of her life, physical 

health, or mental health,” because the extent of her injury did 

not rise to such a level of danger. Brief for appellant at 8. He 

further argues that his conduct was “readily distinguishable 
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STATE v. KILGORE

Cite as 30 Neb. App. 273

from cruel punishment,” given the disciplinary context of his 

actions, because his daughter’s “testimony demonstrates that 

she understood that she misbehaved and that her misbehavior 

[was] why she was punished.” Id. at 9. He also notes that the 

welt left on her lower back “later disappeared” and that her 

testimony further indicated that “it did not hurt much.” Id.

[9] As we have set forth previously, this court, in reviewing 

the sufficiency of the evidence, 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. See State 

v. Price, 306 Neb. 38, 944 N.W.2d 279 (2020). The relevant 

question for this 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. See State v. Figures, 308 Neb. 801, 

957 N.W.2d 161 (2021).

The testimony of both children indicated that they were each 

struck multiple times by Kilgore with a belt. The daughter testified that, of the “[t]hree or four” strikes, one lash hit her on 

the lower back and left a red mark that began to cause her pain 

the following day. She described this pain as “not very bad, 

but it hurt.” She also testified that before she or her brother 

would be spanked, there was generally a process of escalating 

punishments for misbehavior, stating that their parents would 

first “usually talk to [them]” and then “ground [them] from 

[privileges] like . . . the television or playing a video game” 

if they continued to misbehave. Kilgore’s son testified that the 

day he and his sister were spanked, Kilgore only gave them 

warnings to finish their chores before proceeding to spank 

them both with a belt. Both children testified that they were not 

afraid of Kilgore before or after this incident, and Kilgore’s son 

indicated that this was not the only time in 2019 that he or his 

sister was spanked with a belt.

The specific facts of this case indicate that Kilgore’s daughter was struck on her back with a belt, leaving a red welt 

and pain sufficient to cause her to report the incident to her 
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STATE v. KILGORE

Cite as 30 Neb. App. 273

school counselor the following day. Consequently, the evidence 

was sufficient for a rational trier of fact to find that Kilgore’s 

actions negligently placed his daughter in a situation that 

endangered her physical or mental health. While use of force 

as punishment for a child’s misconduct may be protected under 

§ 28-1413(1) as Kilgore argues, a rational fact finder, based 

on the evidence of Kilgore’s daughter’s injury, could find that 

Kilgore’s use of a belt to discipline his daughter was not reasonable or moderate and carried with it a substantial risk of 

causing extreme pain or mental distress. A fact finder could 

thus conclude that the type of force used here did not qualify 

for protection under § 28-1413(1).

When viewing this record in the light most favorable to the 

State, we find that a rational finder of fact could have found 

the essential elements of caretaker neglect under § 20-97 of the 

Omaha Municipal Code beyond a reasonable doubt. A rational 

finder of fact could have also found that Kilgore’s use of a belt 

multiple times to discipline his daughter to the point of leaving 

a red welt and causing pain sufficient to cause her to report the 

incident to the school counselor the following day was not protected by § 28-1413(1). The evidence was therefore sufficient 

to sustain his conviction.

CONCLUSION

For the reasons set forth above, we affirm the district court’s 

order affirming Kilgore’s conviction and sentence.

Affirmed.