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296 Nebraska Report

STATE v. WOOD

Cite as 296 Neb. 738

State of Nebraska, appellee, v.

Robyn J. Wood, appella

___ N.W.2d ___

Filed May 26, 2017. No. S-16-190.

1. Motions for New Trial: Appeal and Error. A trial court’s order denying a motion for new trial is reviewed for an abuse of discretion.

2. Criminal Law: 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. 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.

3. Judgments: Statutes: Appeal and Error. To the extent an appeal calls 

for statutory interpretation or presents questions of law, an appellate 

court must reach an independent conclusion irrespective of the determination made by the court below.

4. Criminal Law: Statutes: Legislature: Intent. In reading a penal statute, a court must determine and give effect to the purpose and intent of 

the Legislature as ascertained from the entire language of the statute 

considered in its plain, ordinary, and popular sense.

5. Statutes: Legislature: Intent: Appeal and Error. An appellate court 

will not look beyond a statute to determine the legislative intent when 

the words are plain, direct, or unambiguous.

6. Sexual Assault: Words and Phrases. Under Neb. Rev. Stat. § 28-322.04 

(Reissue 2008), the word “subject” means to cause to undergo the action 

of something specified.

7. Jury Instructions: Appeal and Error. Harmless error analysis applies 

to instructional errors so long as the error at issue does not categorically 

vitiate all the jury’s findings.

Nebraska Supreme Court Online Library

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

07/27/2017 12:10 AM CDT
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8. Verdicts: Juries: Appeal and Error. In a criminal case tried to a jury, 

harmless error exists when there is some incorrect conduct by the trial 

court which, on review of the entire record, did not materially influence the jury in reaching a verdict adverse to a substantial right of 

the defendant.

9. Motions for New Trial: Proof. In order for a new trial to be granted, 

it must be shown that a substantial right of the defendant was adversely 

affected and that the defendant was prejudiced thereby.

10. Trial: Evidence: Appeal and Error. Because overruling a motion in 

limine is not a final ruling on admissibility of evidence and, therefore, 

does not present a question for appellate review, a question concerning 

admissibility of evidence which is the subject of a motion in limine is 

raised and preserved for appellate review by an appropriate objection to 

the evidence during trial.

Appeal from the District Court for Douglas County: J 

Russell Derr, Judge. Affirme

Jim K. McGough, of McGough Law, P.C., L.L.O., for 

appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Wright, Miller‐Lerman, Stacy, 

Funke, J

Kelch, 

INTRODUCTION

Following a jury trial, Robyn J. Wood appeals her conviction of first degree sexual assault of a protected individual, a 

Class III felony under Neb. Rev. Stat. § 28-322.04(3) (Reissue 

2008). The parties do not dispute the status of Wood and the 

victim under the statute or the extent of the sexual contact. 

Instead, Wood primarily argues that the evidence does not support the jury’s finding that she “subjected” the victim to sexual 

penetration. We disagree, and we affirm.

BACKGROUND

The State’s information charged Wood with first degree 

sexual assault of a protected individual, in violation of 
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§ 28-322.04(2) and (3). It alleged that on or about May 1 

through July 31, 2014, in Douglas County, Nebraska, Wood 

subjected T.Z., a protected individual, to sexual penetration, 

as defined in Neb. Rev. Stat. § 28-318 (Reissue 2016). The 

incident that gave rise to the charge occurred while Wood 

was an employee at Boys Town, a residential treatment center for troubled youth, in Omaha, Nebraska. Boys Town is a 

contractor of the Nebraska Department of Health and Human 

services, and on the date of the offense, T.Z., then 17 years 

old, resided there under the custody and the guardianship of 

the State.

Prior to trial, Wood filed a motion in limine. She sought to 

exclude “[a]ny testimony or evidence regarding any evaluations, treatment or therapy regarding [her] past sexual behavior and/or sexual proclivities, including but not limited to 

sexual addiction meetings, as such evidence violates Neb. 

Rev. Stats. §§ 27-608, 27-414, 27-404 and 27-403.” This 

included her attendance at “Sexaholics Anonymous.” The district court’s ruling on the motion is not part of the record and 

was not requested by any praecipe, but the district court orally 

expressed an inclination to deny it, and the parties agree that 

the district court overruled the motion.

According to evidence at trial, when T.Z. arrived at Boys 

Town in January 2014, he suffered from emotional and mood 

dysregulation, and he was initially placed in a secured facility on the campus. At first, T.Z. displayed physical aggression 

toward staff and other youth, which required staff to restrain 

him. This behavior resulted in a standing order to call police 

if T.Z. became aggressive. There was also testimony that T.Z. 

had a history of being manipulative. After about a month, 

T.Z.’s aggressive behavior improved, due in part to a medication change, and he moved to a “Sudyka,” a family-style house 

on campus, for juvenile boys. There, T.Z. had more freedom 

than the secured facility had allowed, and he had the opportunity to earn points to use toward certain privileges, including 

off-campus activities with family or Boys Town staff.
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STATE v. WOOD

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At the time of T.Z.’s arrival, Wood was a shift manager 

at the Sudyka. Wood had previously worked as a behavioral 

health technician for several years, dealing directly with the 

youth on a day-to-day basis to implement the behavioral and 

medical programming. As a shift manager, Wood was somewhat involved with the youth, but her primary role was to 

oversee the behavioral health technicians.

Wood and other employees received training to handle 

boundary issues with the youth. According to testimony at 

trial, during T.Z.’s stay at the Sudyka, from March to June 

2014, other staff noticed that Wood gave preferential treatment to and had “poor boundaries” with T.Z. The jury heard 

testimony that Wood allowed T.Z. to stay up late, prepared 

special meals for him, and brought him cake and ice cream on 

her day off.

One of the staff members who worked at the Sudyka, 

Samantha Cartwright, testified that Wood and T.Z. were often 

alone together. She observed that Wood allowed T.Z. to be 

alone with her upstairs while all of his other peers were downstairs, which was unusual. Once, Cartwright entered a locked 

office and saw Wood and T.Z. alone; it appeared to Cartwright 

that T.Z. had just left Wood’s lap as Cartwright came into the 

room. Cartwright testified that Wood and T.Z. often went on 

private walks together after nightfall, which was not part of 

T.Z.’s treatment plan. According to Cartwright, Wood also 

took T.Z. to exercise his off-campus privileges, which was 

unusual because typically a behavioral health technician took 

the youth off campus while the shift managers supervised 

the staff on campus. While it was not a rule violation for a 

shift manager to accompany a resident off campus, it was 

“not appropriate.”

The program director tasked with overseeing all of the 

staff and the day-to-day operations of the campus testified 

that in approximately April 2014, Wood herself reported that 

T.Z. made her uncomfortable because he was always looking 

at her and often wanted to be where she was. The program 
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director advised Wood not to be alone with T.Z. and to report 

any future concerns. After that, Wood did not report any 

additional concerns. Cartwright testified that in May 2014, 

she shared her concerns about Wood’s relationship with T.Z. 

with her immediate supervisor, who reported it to the program 

director. Cartwright testified that she was told that the matter 

would be addressed, but the boundary issues between Wood 

and T.Z. continued.

According to testimony at trial, Wood eventually confided 

in her roommate, Heather Hutchinson, who also worked at 

Boys Town, about her relationship with T.Z. Hutchinson testified that in June 2014, Wood texted her and wanted to talk 

about her “‘first time,’” which Hutchinson understood to mean 

Wood’s first time having sex, since Hutchinson believed that 

Wood had been a virgin. Hutchinson testified that later, in person, Wood told her that she had had sex with T.Z. According 

to Hutchinson, Wood told her that she and T.Z. were cleaning 

a house on campus when T.Z. took her keys and went into a 

bedroom, where Wood followed and where they began kissing 

and ended up having sex. Hutchinson testified that Wood never 

said, nor did she get the impression from Wood, that this sexual 

encounter occurred against Wood’s will. Hutchinson opined 

that Wood presented the encounter to her as “consensual.” 

Hutchinson also testified that Wood told her about two prior 

instances when Wood and T.Z. kissed in the Sudyka, once in 

the basement and once on the stairs.

Hutchinson testified that she reported the matter to Child 

Protective Services, which prompted an investigation. Wood’s 

resulting interview with the Boys Town police was recorded, 

and an audio copy was received into evidence at trial, without 

objection, and played for the jury.

During her interview, Wood stated that on the evening of the 

sexual encounter, she and T.Z. went alone to an unoccupied 

building on campus to retrieve some items. T.Z. took her keys 

and went into a bedroom, where Wood followed him. Wood 

said that T.Z. kissed her on the lips and that she tried to push 
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him off. Wood recounted that T.Z. then pushed her onto the 

bed and got on top of her. Wood tried to push T.Z. off with her 

legs and arms, but she could not. Wood reported that she told 

him to stop and said, “I don’t want to do that; leave me alone.” 

However, T.Z. remained on top of Wood and grabbed at her 

clothing. Wood said that T.Z. took off her pants and underwear 

and his two sets of shorts. Wood states that after she unsuccessfully tried to push T.Z. off, she stopped fighting because she 

thought she could be either “a statistic or a willing participant.” 

Wood said that T.Z. inserted his penis into her vagina while on 

top of her. She stated that during the encounter, which lasted 

about 30 minutes, she told T.Z., “I don’t want to do it,” and 

he responded, “You know you want to do it.” The encounter 

ceased when Wood received a telephone call and T.Z. finally 

complied with her order to stop. Then, they both got dressed 

and returned to the Sudyka.

Wood stated that she had been confused about whether she 

had tacitly consented when she gave up “fighting not to be a 

statistic,” but concluded that she had not consented. Later in 

the interview, she described the situation as “partial consent.” 

Wood admitted that part of her did not care and did not want to 

try to stop after initially trying to push T.Z. off of her.

Wood admitted that her relationship with T.Z. leading up to 

the incident may have been viewed by others as flirtatious and 

involving favoritism. Wood further stated that she had rebuffed 

T.Z. on previous occasions when he had kissed her cheek and 

hugged her and that he had also tried to hold her hand. She 

admitted that she knew it was a bad idea to be alone with T.Z. 

and admitted that when he entered the bedroom where they 

had sex, she knew T.Z.’s possible motivation and the possible 

outcome. However, Wood maintained that she did not want or 

plan to have sex with T.Z., at least not under those circumstances. She said it would have been different if he had been 

19 years old rather than “a kid” at Boys Town.

In the interview, which was received without objection, 

Wood volunteered that she attends Sexaholics Anonymous 
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for “this addiction.” She described Sexaholics Anonymous as 

a 12-step program for addiction to lust and craving more of 

something. She stated that she attended the program because 

she knew what her “[rock] bottom” was and did not want to hit 

it, but that when she had the encounter with T.Z., she hit rock 

bottom. She expressed shame and guilt over being “play[ed]” 

by T.Z. She said that she did not report the incident because of 

the shame, guilt, and possible consequences.

At trial, T.Z. testified about his relationship with Wood and 

the events leading up to their sexual encounter. He stated that 

he and Wood spent a lot of time together after he moved into 

the Sudyka. T.Z. testified that a few weeks before they had 

sex, he and Wood kissed when they were alone in the basement at the Sudyka. He characterized the kissing as mutual 

and testified that Wood told him that “nobody could find out.” 

T.Z. stated that a couple of days later, he and Wood went for 

a drive and parked behind a store, where they kissed for 5 to 

10 minutes. Again, the kissing was mutual and Wood reminded 

T.Z. that nobody must find out.

T.Z. testified that on June 4, 2014, a few days before he 

left Boys Town, he and Wood went to an unoccupied house on 

the Boys Town campus and had sex. T.Z. explained that they 

went to the house to look for extra towels and that when they 

went upstairs, he jokingly grabbed Wood’s keys and entered 

one of the bedrooms. According to T.Z., Wood followed him 

into the bedroom, they started kissing, he took off her clothes, 

she undid his pants, and then they had sexual intercourse on 

the bed.

T.Z. testified that when Wood received a text message, she 

asked him to stop and he complied. T.Z. testified that otherwise, Wood never told him to stop or in any way indicated that 

she did not want to have sex with him. He stated that afterward, Wood told him that nobody must find out. Then, T.Z. 

recounted, they went back to the Sudyka, where Wood came to 

T.Z.’s room, gave him her telephone number, and said he could 

call her anytime.
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STATE v. WOOD

Cite as 296 Neb. 738

The jury instructions setting forth the elements of the 

offense required the jury to determine, among other things, 

whether Wood “subjected [T.Z.] to sexual penetration.” The 

jury instructions further stated that “[s]ubject, or subjecting 

an individual to something, means ‘to bring under control 

or dominion.’” Neither the State nor Wood objected to these 

instructions.

The jury found Wood guilty of the crime charged: first 

degree sexual abuse of a protected individual.

Following the verdict, Wood moved for a new trial on the 

basis that the verdict was not sustained by the evidence or was 

contrary to law. At a hearing on the motion, the district court 

received a transcript of T.Z.’s testimony. Wood’s counsel argued 

in part that because T.Z. effectuated the sexual penetration, the 

evidence did not support a finding that Wood “subjected” T.Z. 

to sexual penetration, that is, a finding that the sexual penetration resulted from an exercise of control or dominion by Wood. 

The district court overruled the motion.

The district court subsequently sentenced Wood to a period 

of 5 years’ probation, with various terms and conditions.

This appeal followed.

ASSIGNMENTS OF ERROR

Wood assigns, summarized and restated, that (1) the district court erred in overruling her motion for new trial, (2) the 

evidence was insufficient to support the jury verdict that she 

had subjected T.Z. to sexual penetration, and (3) the district 

court erred in overruling her motion in limine and allowing 

the jury to consider evidence that she attended Sexaholics 

Anonymous.

STANDARD OF REVIEW

[1] A trial court’s order denying a motion for new trial is 

reviewed for an abuse of discretion. State v. Stricklin, 290 Neb. 

542, 861 N.W.2d 367 (2015).

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

whether the evidence is direct, circumstantial, or a combination 
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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. The relevant question for an appellate court is 

whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt. State v. Dominguez, 290 Neb. 477, 860 N.W.2d 

732 (2015).

ANALYSIS

Sufficiency of Evid

Motion for New T

Wood assigns that the evidence was insufficient to support 

the jury verdict. Similarly, she also assigns that the district 

court erred in overruling her motion for new trial arguing that 

the verdict was not sustained by the evidence.

Wood was convicted of first degree sexual abuse of a protected individual pursuant to § 28-322.04, which provides, in 

relevant part:

(1) For purposes of this section:

(a) Person means an individual employed by the 

Department of Health and Human Services and includes, 

but is not limited to, any individual working in central 

administration or regional service areas or facilities of the 

department and any individual to whom the department 

has authorized or delegated control over a protected individual or a protected individual’s activities, whether by 

contract or otherwise; and

(b) Protected individual means an individual in the care 

or custody of the department.

(2) A person commits the offense of sexual abuse of 

a protected individual if the person subjects a protected 

individual to sexual penetration or sexual contact as 

those terms are defined in section 28-318. It is not a 

defense to a charge under this section that the protected 
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individual consented to such sexual penetration or sexual contact.

(3) Any person who subjects a protected individual to 

sexual penetration is guilty of sexual abuse of a protected 

individual in the first degree.

Under § 28-318(6), sexual penetration means, among other 

things, “sexual intercourse in its ordinary meaning.”

Wood does not dispute that she is a “person” under 

§ 28-322.04(2) or that T.Z. was a “protected individual” thereunder. Nor does she deny that sexual penetration occurred. 

Instead, she argues that the State offered no evidence that she 

“‘subject[ed]’” T.Z. to such sexual penetration as prohibited by 

§ 28-322.04(2) because she did not exercise “control or dominion” over him. Brief for appellant at 11. To the contrary, Wood 

asserts that T.Z. was the “aggressor” and exercised control or 

dominion over her when he effectuated the sexual penetration 

without Wood’s assistance or encouragement. Id. at 10. Wood 

contends that to find that she “subjected” T.Z. to sexual penetration would require an overly broad interpretation of the 

statute defining sexual penetration, not supported by the plain 

language of the statute. Id. at 12. We disagree.

[3-5] To the extent an appeal calls for statutory interpretation or presents questions of law, an appellate court must 

reach an independent conclusion irrespective of the determination made by the court below. State v. Kolbjornsen, 295 

Neb. 231, 888 N.W.2d 153 (2016). In reading a penal statute, a court must determine and give effect to the purpose 

and intent of the Legislature as ascertained from the entire 

language of the statute considered in its plain, ordinary, and 

popular sense. State v. Robbins, 253 Neb. 146, 570 N.W.2d 

185 (1997). We will not look beyond a statute to determine 

the legislative intent when the words are plain, direct, or 

unambiguous. State v. Loyuk, 289 Neb. 967, 857 N.W.2d 

833 (2015).

In State v. Loyuk, supra, we applied the preceding rules 

of statutory construction to determine the plain meaning of 
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“subjects” in Neb. Rev. Stat. § 28-322.01 (Reissue 2016), 

which addresses sexual abuse of an inmate or parolee. That 

section, similar to the one at issue in this case, provides:

A person commits the offense of sexual abuse of an 

inmate or parolee if such person subjects an inmate or 

parolee to sexual penetration or sexual contact as those 

terms are defined in section 28-318. It is not a defense 

to a charge under this section that the inmate or parolee 

consented to such sexual penetration or sexual contact.

§ 28-322.01. The appellant in Loyuk argued that he did not 

“subject” the victim to sexual penetration as set forth in 

§ 28-322.01 because the victim was a voluntary participant. He 

proposed that in the context of § 28-322.01, “‘subject’” means 

“‘“bring under control or dominion”’ or ‘“force to undergo or 

endure.”’” Loyuk, 289 Neb. at 974, 857 N.W.2d at 842. We 

expressly rejected these definitions, reasoning that they could 

not be squared with the statement in § 28-322.01 that consent 

of the inmate or parolee is not a defense. Rather, we concluded, 

“The plain meaning of ‘subject’ is ‘to cause to undergo the 

action of something specified.’ Here, the thing specified is 

sexual penetration and [the appellant] caused [the victim] to 

undergo this action by participating in the sexual act.” Loyuk, 

289 Neb. at 974, 857 N.W.2d at 842.

[6] Both the statute at issue in Loyuk and the statute at 

issue here prohibit a person in authority from subjecting a 

person in his or her charge to sexual penetration or contact, 

and both preclude the defense that the victim consented to the 

sexual act. Given these similarities, we see no reason why the 

reasoning of Loyuk and its consideration of the definition of 

“subject” should not apply to § 28-322.04. Therefore, we hold 

that under § 28-322.04, the word “subject” means to cause to 

undergo the action of something specified.

Applying this definition of “subject” and viewing the evidence in the light most favorable to the prosecution, we conclude that the evidence supports a finding beyond a reasonable 

doubt that Wood, a person as defined in § 28-322.04(1)(a), 
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subjected T.Z., a protected individual, to sexual penetration. 

Testimony by T.Z. and Hutchinson, along with Wood’s own 

police interview, provided evidence that Wood caused T.Z. to 

undergo sexual penetration by willingly participating in the 

sexual act. And like T.Z.’s consent, his role in effectuating the 

sexual penetration is immaterial. § 28-322.04(2).

[7,8] We acknowledge that the jury instructions in the 

instant case defined “subject” as “to bring under control or 

dominion,” a definition that we expressly rejected in State v. 

Loyuk, 289 Neb. 967, 974, 857 N.W.2d 833, 843 (2015), in 

favor of the broader “‘to cause to undergo the action of something specified.’” Harmless error analysis applies to instructional errors so long as the error at issue does not categorically 

vitiate all the jury’s findings. State v. Abram, 284 Neb. 55, 815 

N.W.2d 897 (2012). In a criminal case tried to a jury, harmless 

error exists when there is some incorrect conduct by the trial 

court which, on review of the entire record, did not materially 

influence the jury in reaching a verdict adverse to a substantial 

right of the defendant. See State v. McHenry, 250 Neb. 614, 

550 N.W.2d 364 (1996). Although the district court should 

have used our definition from Loyuk, the jury, as the trier of 

fact, deliberated within the confines of the narrower definition 

of “subject” and still found Wood guilty of the essential elements of the crime charged. See State v. Sandoval, 280 Neb. 

309, 788 N.W.2d 172 (2010) (absent evidence to contrary, it is 

presumed that jury followed instructions given in arriving at its 

verdict). Thus, Wood suffered no harm as a result of the jury 

instruction given.

[9] Having rejected Wood’s claim that the jury lacked sufficient evidence to convict her, we find no merit to her contention that the district court abused its discretion in denying her 

motion for new trial, which Wood based on the same grounds. 

In order for a new trial to be granted, it must be shown that a 

substantial right of the defendant was adversely affected and 

that the defendant was prejudiced thereby. State v. Faust, 269 

Neb. 749, 696 N.W.2d 420 (2005). The evidence supported 
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Wood’s conviction. She suffered no violation of any substantial 

right and no prejudice.

Motion in L

[10] Finally, Wood assigns that the district court erred 

in overruling her motion in limine and allowing the jury to 

consider evidence that she attended Sexaholics Anonymous. 

Although the parties agree that the district court overruled the 

motion, the record does not contain any such ruling. However, 

because overruling a motion in limine is not a final ruling on 

admissibility of evidence and, therefore, does not present a 

question for appellate review, a question concerning admissibility of evidence which is the subject of a motion in limine 

is raised and preserved for appellate review by an appropriate 

objection to the evidence during trial. State v. Almasaudi, 282 

Neb. 162, 802 N.W.2d 110 (2011). Wood did not object at 

trial when the State presented evidence of her attendance at 

Sexaholics Anonymous. Therefore, she did not preserve this 

issue for our consideration on appeal.

CONCLUSION

For the reasons set forth above, we affirm Wood’s conviction.

Affirmed

Cassel, J., participating on briefs.