Nebraska Supreme Court Online Library
www.nebraska.gov/courts/epub/
02/09/2016 08:16 AM CST




                                                        - 607 -
                               Decisions of the Nebraska Court of A ppeals
                                     23 Nebraska A ppellate R eports
                                                STATE v. OLBRICHT
                                               Cite as 23 Neb. App. 607




                                        State of Nebraska, appellee, v.
                                        Cody Olbricht, also known as
                                           Cody Olbrich, appellant.
                                                    ___ N.W.2d ___

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

                1.	 Evidence: Appeal and Error. In reviewing a sufficiency of the evi-
                    dence claim, whether the evidence is direct, circumstantial, or a com-
                    bination 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 reason-
                    able 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 ques-
                    tions of law.
                4.	 Criminal Law: Minors: Words and Phrases. For the purposes of
                    Neb. Rev. Stat. § 28-707(7) (Cum. Supp. 2014), the statute criminal-
                    izing 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 func-
                    tion 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 defend­ ant was the sole caregiver for the victim at the time the
                    abuse occurred.
                                  - 608 -
           Decisions of the Nebraska Court of A ppeals
                 23 Nebraska A ppellate R eports
                           STATE v. OLBRICHT
                          Cite as 23 Neb. App. 607

 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:
R andall L. Lippstreu, Judge. Reversed and vacated.
   Leonard G. Tabor for appellant.
   Douglas J. Peterson, Attorney General, and George R. Love
for appellee.
   Moore, Chief Judge, and Irwin and Inbody, Judges.
   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
                              - 609 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                       STATE v. OLBRICHT
                      Cite as 23 Neb. App. 607

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 sub-
sequently 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 girl-
friend” 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
                              - 610 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                       STATE v. OLBRICHT
                      Cite as 23 Neb. App. 607

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 babysit-
ter 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
                               - 611 -
          Decisions of the Nebraska Court of A ppeals
                23 Nebraska A ppellate R eports
                        STATE v. OLBRICHT
                       Cite as 23 Neb. App. 607

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 hurt-
      ing 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 tele-
phone and decided that Pahl would pick up A.M. in the morn-
ing. 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 approxi-
mately 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,
                              - 612 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                       STATE v. OLBRICHT
                      Cite as 23 Neb. App. 607

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 sub-
stantial risk of death because untreated brain injury can “pro­
gress[] 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 medi-
cal 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 tim-
ing of A.M.’s injuries “would vary depending on the type
                               - 613 -
          Decisions of the Nebraska Court of A ppeals
                23 Nebraska A ppellate R eports
                        STATE v. OLBRICHT
                       Cite as 23 Neb. App. 607

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 testi-
fied 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
                               - 614 -
          Decisions of the Nebraska Court of A ppeals
                23 Nebraska A ppellate R eports
                        STATE v. OLBRICHT
                       Cite as 23 Neb. App. 607

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 sub-
stantial 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] docu-
mented 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 writ-
ten 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 insuf-
ficient 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
                               - 615 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                        STATE v. OLBRICHT
                       Cite as 23 Neb. App. 607

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 lac-
erated 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 wit-
nesses, 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 find-
ings 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 disfigure-
ment, or protracted loss or impairment of the function of
                               - 616 -
          Decisions of the Nebraska Court of A ppeals
                23 Nebraska A ppellate R eports
                        STATE v. OLBRICHT
                       Cite as 23 Neb. App. 607

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 min-
utes after sustaining the injuries. Id. The child’s mother testi-
fied 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 per-
formed 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 (empha-
sis supplied).
   In State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003),
the defendant was convicted of first degree assault for injuring
                              - 617 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                       STATE v. OLBRICHT
                      Cite as 23 Neb. App. 607

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 convic-
tion, 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 defend­
ant’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 result-
ing 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 sup-
ported 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 indicat-
ing 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 testi-
fied that A.M.’s brain injury could have led to seizures, brain
dysfunction, and respiratory or cardiac arrest. With respect to
                               - 618 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                        STATE v. OLBRICHT
                       Cite as 23 Neb. App. 607

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 hos-
pitalized. Additionally, A.M. was alone with Pahl for approxi-
mately 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
                              - 619 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                       STATE v. OLBRICHT
                      Cite as 23 Neb. App. 607

that Olbricht was A.M.’s sole caregiver when the liver lacera-
tion 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 inju-
ries 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 lacer-
ated 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
                              - 620 -
         Decisions of the Nebraska Court of A ppeals
               23 Nebraska A ppellate R eports
                       STATE v. OLBRICHT
                      Cite as 23 Neb. App. 607

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 insuf-
ficient. 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 sen-
tence, we need not address the discrepancy between the oral
sentence pronounced at the sentencing hearing and the sen-
tence recorded in the trial transcript.
                       V. CONCLUSION
   Upon our review, we find that there was insufficient evi-
dence to support Olbricht’s conviction for knowing and inten-
tional child abuse resulting in serious bodily injury. We reverse
Olbricht’s conviction and vacate his sentence.
                                        R eversed and vacated.
