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Nebraska Court of Appeals Advance S

25 Nebraska Appellate Repor

STATE v. KRESHA

Cite as 25 Neb. App. 543

State of Nebraska, appellee, v.

Patrick Kresha, appell

___ N.W.2d ___

Filed February 13, 2018. No. A-17-525.

1. Statutes: Judgments: Appeal and Error. Statutory interpretation presents a question of law. When reviewing questions of law, an appellate 

court has an obligation to resolve the questions independently of the 

conclusion reached by the trial court.

2. Sentences: Appeal and Error. An appellate court will not disturb sentences that are within statutory limits, unless the district court abused 

its discretion in establishing the sentences.

3. Convicted Sex Offender: Sentences. Any sex offender convicted of 

a registrable offense under Neb. Rev. Stat. § 29-4003 (Reissue 2016) 

punishable by imprisonment for more than 1 year and convicted of an 

aggravated offense shall register on the sex offender registry for life.

4. Convicted Sex Offender. An aggravated offense for purposes of the 

Sex Offender Registration Act means any registrable offense under 

Neb. Rev. Stat. § 29-4003 (Reissue 2016) which involves the direct 

genital touching of (1) a victim age 13 years or older without the 

consent of the victim, (2) a victim under the age of 13 years, or (3) a 

victim who the sex offender knew or should have known was mentally 

or physically incapable of resisting or appraising the nature of his or 

her conduct.

5. Convicted Sex Offender: Words and Phrases. The definitions of 

sexual conduct under Nebraska law and federal law make a distinction 

between the direct touching of a victim’s private parts and the touching 

of the clothing covering the victim’s private parts.

6. ____: ____. The term “direct genital touching” for purposes of finding 

an aggravated offense under the Sex Offender Registration Act requires 

evidence that the actor touched the victim’s genitals under the victim’s clothing.

Nebraska Supreme Court Online Library

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

02/27/2018 12:14 AM CST
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STATE v. KRESHA

Cite as 25 Neb. App. 543

7. Sentences. When imposing a sentence, the sentencing judge should 

consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or 

record of law-abiding conduct, and (6) motivation for the offense, as 

well as (7) the nature of the offense and (8) the violence involved in the 

commission of the offense. The sentencing court is not limited to any 

mathematically applied set of factors.

8. ____. The appropriateness of a sentence is necessarily a subjective 

judgment and includes the sentencing judge’s observation of the defendant’s demeanor and attitude and all the facts and circumstances surrounding the defendant’s life.

Appeal from the District Court for Polk County: Rachel 

Daugherty, Judge. Affirmed as modified

Timothy P. Matas for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. 

Duffy for appellee.

Pirtle, Riedmann, and Arterburn, J

Riedmann, Jud

INTRODUCTION

Patrick Kresha appeals his plea-based convictions of two 

counts of third degree sexual assault of a child and two 

counts of third degree sexual assault. He claims that the 

district court erred in imposing excessive sentences and in 

determining that he was subject to lifetime registration under 

Nebraska’s Sex Offender Registration Act (SORA), Neb. Rev. 

Stat. §§ 29-4001 to 29-4014 (Reissue 2016). We conclude that 

the court erred in finding that Kresha committed an aggravated offense for purposes of SORA and therefore modify the 

sentencing order to require that he instead register as a sex 

offender for 25 years. We otherwise affirm.

BACKGROUND

Kresha pled no contest to an amended information charging him with two counts of third degree sexual assault of a 
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STATE v. KRESHA

Cite as 25 Neb. App. 543

child and two counts of third degree sexual assault. According 

to the factual basis provided by the State at the plea hearing, 

on or about August 17, 2010, and May 18, 2011, Kresha, who 

was born in 1962, went into the bedroom of M.K., who was 

born in 1998, while M.K. was sleeping and touched her genitalia for the purpose of his own sexual gratification. Similarly, 

between January 1, 2010, and December 31, 2012, Kresha 

touched the breast and buttocks of J.G., who was born in 

1998, for the purpose of his own sexual gratification. In addition, between January 1, 2010, and May 6, 2013, Kresha subjected E.S., who was born in 1996, and A.G., who was born in 

1995, to sexual contact without their consent. All of the events 

occurred in Polk County, Nebraska.

The district court accepted Kresha’s pleas and found him 

guilty. He was sentenced to consecutive terms of imprisonment of 5 to 5 years, 5 to 5 years, 1 to 1 year, and 1 to 1 

year. At the sentencing hearing, the court also determined that 

Kresha had committed an “aggravated offense” as defined in 

SORA and that he would therefore be required to register on 

Nebraska’s sex offender registry for life. Kresha now appeals 

to this court.

ASSIGNMENTS OF ERROR

Kresha assigns, restated and renumbered, that the district 

court erred (1) in determining that his offenses were aggravated offenses for purposes of the lifetime registration requirement of SORA and (2) in imposing excessive sentences that 

constituted an abuse of discretion.

STANDARD OF REVIEW

[1] Statutory interpretation presents a question of law. When 

reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion 

reached by the trial court. State v. Hamilton, 277 Neb. 593, 763 

N.W.2d 731 (2009).

[2] An appellate court will not disturb sentences that are 

within statutory limits, unless the district court abused its 
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STATE v. KRESHA

Cite as 25 Neb. App. 543

discretion in establishing the sentences. State v. Dominguez, 

290 Neb. 477, 860 N.W.2d 732 (2015).

ANALYSIS

Aggravated Offense Under SORA.

[3,4] Pertinent to this case, any sex offender convicted of 

a registrable offense under § 29-4003 punishable by imprisonment for more than 1 year and convicted of an aggravated 

offense shall register on the sex offender registry for life. See 

§ 29-4005(1)(b)(iii). For purposes of SORA and as relevant to 

this case, the term “aggravated offense” means any registrable 

offense under § 29-4003 which involves the “direct genital 

touching” of (1) a victim age 13 years or older without the 

consent of the victim, (2) a victim under the age of 13 years, 

or (3) a victim who the sex offender knew or should have 

known was mentally or physically incapable of resisting or 

appraising the nature of his or her conduct. § 29-4001.01(1). 

The registrable offenses under § 29-4003 include third degree 

sexual assault of a child, but SORA does not define “direct 

genital touching.”

Kresha asserts that “direct genital touching” requires the 

touching of the victim’s genitals under the clothing. He argues 

that there is no evidence in the record to support a finding of 

any touching which occurred under the clothing and that therefore, the court erred in finding that the offense was an aggravated offense subject to lifetime registration. The State agrees 

that there is no evidence of genital touching under the clothing 

regarding the two counts of third degree sexual assault of a 

child; thus, the State concedes that the court erred in finding 

the offenses to be aggravated.

[5] We agree with the parties that “direct genital touching” is 

not defined under Nebraska law. The term “sexual contact” is 

defined under Nebraska law and provides in part:

Sexual contact means the intentional touching of the victim’s sexual or intimate parts or the intentional touching 

of the victim’s clothing covering the immediate area of 
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STATE v. KRESHA

Cite as 25 Neb. App. 543

the victim’s sexual or intimate parts. Sexual contact shall 

also mean the touching by the victim of the actor’s sexual 

or intimate parts or the clothing covering the immediate 

area of the actor’s sexual or intimate parts when such 

touching is intentionally caused by the actor.

Neb. Rev. Stat. § 28-318(5) (Reissue 2016). Similarly, the 

term “sexual contact” is defined under federal law as “the 

intentional touching, either directly or through the clothing, 

of the genitalia, anus, groin, breast, inner thigh, or buttocks 

of any person with an intent to abuse, humiliate, harass, 

degrade, or arouse or gratify the sexual desire of any person.” 

18 U.S.C. § 2246(3) (2012). Thus, these definitions make a 

distinction between the direct touching of a victim’s private 

parts and the touching of the clothing covering the victim’s 

private parts.

[6] Likewise, the term “sexual act” is defined under federal law to include “the intentional touching, not through 

the clothing, of the genitalia of another person who has not 

attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire 

of any person.” § 2246(2)(D). And this definition has been 

summarized as “the direct touching of genitals with certain 

sexual or abusive intents.” U.S. v. White, 782 F.3d 1118, 1137 

(10th Cir. 2015). See, also, U.S. v. Jennings, 496 F.3d 344 

(4th Cir. 2007) (direct touching under definition of sexual 

act in § 2246(2) means touching of victim’s unclothed private parts). We also note that the federal law’s definition 

of “sexually explicit conduct” makes a distinction between 

direct touching and touching through clothing. See 18 U.S.C. 

§ 3509(a)(9)(A) (2012). Based on the foregoing, we conclude 

that the term “direct genital touching” for purposes of finding an aggravated offense under SORA requires evidence 

that the actor touched the victim’s genitals under the victim’s clothing.

For purposes of lifetime registration under SORA, the 

defendant must have been convicted of a crime that is a 
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STATE v. KRESHA

Cite as 25 Neb. App. 543

registrable offense and punishable by more than 1 year in 

prison. Thus, in the present case, only the convictions for third 

degree sexual assault of a child could constitute aggravated 

offenses. We concur with the parties that there is no evidence 

in the record of direct genital touching.

The record establishes that Kresha touched J.G.’s breasts 

and buttocks, which does not constitute genital touching, 

and that he touched M.K.’s vaginal area over her clothing. 

Therefore, the evidence is insufficient to support a finding of 

direct genital touching for purposes of an aggravated offense 

under SORA. Accordingly, the district court erred in finding 

that Kresha was required to register for life. Instead, he is 

required to register for 25 years. See § 29-4005. We therefore 

modify the sentencing order to require that Kresha register for 

25 years rather than life.

Excessive Sentences.

Kresha also asserts that the sentences imposed by the district court are excessive and constitute an abuse of discretion. 

We disagree.

Third degree sexual assault of a child is a Class IIIA felony. 

Neb. Rev. Stat. § 28-320.01 (Reissue 2016). At the time of 

Kresha’s offenses, this offense was punishable by a maximum of 5 years’ imprisonment. See Neb. Rev. Stat. § 28-105 

(Reissue 2008). Third degree sexual assault is a Class I misdemeanor, which carries a punishment of up to 1 year’s imprisonment. See Neb. Rev. Stat. §§ 28-320 and 28-106 (Reissue 

2008). Thus, Kresha’s sentences fall within the statutory limits. 

Nevertheless, he argues that they are excessive because the 

district court relied heavily on the nature and circumstances 

of the offenses when there were other factors that should have 

mitigated his sentences.

An appellate court will not disturb sentences that are within 

statutory limits, unless the district court abused its discretion 

in establishing the sentences. State v. Dominguez, 290 Neb. 

477, 860 N.W.2d 732 (2015).
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Nebraska Court of Appeals Advance S

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STATE v. KRESHA

Cite as 25 Neb. App. 543

[7,8] When imposing a sentence, the sentencing judge 

should consider the defendant’s (1) age, (2) mentality, (3) 

education and experience, (4) social and cultural background, 

(5) past criminal record or record of law-abiding conduct, and 

(6) motivation for the offense, as well as (7) the nature of the 

offense and (8) the violence involved in the commission of the 

offense. Id. The sentencing court is not limited to any mathematically applied set of factors. Id. The appropriateness of a 

sentence is necessarily a subjective judgment and includes the 

sentencing judge’s observation of the defendant’s demeanor 

and attitude and all the facts and circumstances surrounding 

the defendant’s life. Id.

At the sentencing hearing, the court made clear that it 

considered the required factors as well as the information 

contained in the presentence investigation report. We recognize that there were mitigating factors present here, including 

Kresha’s lack of a significant criminal history, his employment 

record and ties to the community, and the lack of violence in 

the offenses. However, as the district court emphasized, the 

circumstances of the offenses support a more significant sentence. Kresha victimized four teenage girls, one of whom was 

his own daughter. There were letters in the presentence investigation report from each victim detailing the impact Kresha’s 

actions have had on their lives, and two of the victims spoke 

at sentencing.

The court emphasized the effect Kresha has had on all 

of his victims, and most importantly, his own daughter with 

whom he violated the core of the parent-child relationship. The 

court opined that had the victims not reported his actions, he 

would have continued to victimize young women. The court 

explained its responsibility to look out for the welfare of those 

who cannot look out for themselves, which, in this case, is 

Kresha’s own daughter and her teenage friends. It therefore 

found that probation was not appropriate. Similarly, the probation officer who conducted the presentence investigation 

opined that probation was not appropriate and recommended 
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STATE v. KRESHA

Cite as 25 Neb. App. 543

a sentence of incarceration, because Kresha took advantage of 

his daughter’s friends for his own sexual gratification. Based 

on the record before us, we cannot conclude that the district 

court abused its discretion in the sentences imposed.

CONCLUSION

We conclude that the district court erred in finding evidence 

in the record of direct genital touching for purposes of lifetime registration pursuant to SORA. We therefore modify the 

sentencing order to require that Kresha register for 25 years. 

Finding that Kresha’s sentences are not excessive, we otherwise affirm his convictions and sentences.

Affirmed as modified