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                                                  NADEEM v. STATE
                                                Cite as 24 Neb. App. 825




                                        Mohammed Nadeem, appellant, v.
                                         State of Nebraska, appellee.
                                                    ___ N.W.2d ___

                                          Filed June 27, 2017.    No. A-16-113.

                 1.	 Motions to Dismiss. A district court’s grant of a motion to dismiss is
                     reviewed de novo.
                2.	 Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an
                     order dismissing a complaint, the appellate court accepts as true all facts
                     which are well pled and the proper and reasonable inferences of law and
                     fact which may be drawn therefrom, but not the plaintiff’s conclusion.
                3.	 Motions to Dismiss: Pleadings. To prevail against a motion to dis-
                     miss for failure to state a claim, a plaintiff must allege sufficient facts,
                     accepted as true, to state a claim to relief that is plausible on its face.
                     In cases in which a plaintiff does not or cannot allege specific facts
                     showing a necessary element, the factual allegations, taken as true, are
                     nonetheless plausible if they suggest the existence of the element and
                     raise a reasonable expectation that discovery will reveal evidence of the
                     element of the claim.
                4.	 Actions: Pleadings: Notice. Civil actions are controlled by a liberal
                     pleading regime; a party is only required to set forth a short and plain
                     statement of the claim showing that the pleader is entitled to relief and
                     is not required to plead legal theories or cite appropriate statutes so long
                     as the pleading gives fair notice of the claims asserted.
                5.	 Convictions: Sentences: Proof. Neb. Rev. Stat. § 29‑4603(3) (Reissue
                     2016) requires a claimant to prove actual innocence, or that the claim-
                     ant did not commit the crime for which he or she was charged, in order
                     to recover under the Nebraska Claims for Wrongful Conviction and
                     Imprisonment Act.

                 Appeal from the District Court for Lancaster County:
               Robert R. Otte, Judge. Reversed and remanded for further
               proceedings.
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                         NADEEM v. STATE
                       Cite as 24 Neb. App. 825

  Jeffry D. Patterson for appellant.
   Douglas J. Peterson, Attorney General, and Ryan S. Post
for appellee.
  Pirtle, Bishop, and A rterburn, Judges.
  A rterburn, Judge.
                     INTRODUCTION
   Mohammed Nadeem appeals from an order of the district
court which dismissed his complaint requesting compensa-
tion under the Nebraska Claims for Wrongful Conviction and
Imprisonment Act (the Act). See Neb. Rev. Stat. §§ 29‑4601
to 29‑4608 (Reissue 2016). The issue raised in this case is
whether Nadeem’s complaint contained sufficient allegations
to survive the State’s motion to dismiss. Because we find
that Nadeem’s complaint alleges sufficient facts to state a
claim for relief under the Act that is plausible on its face,
we conclude that the district court erred when it dismissed
the complaint.
                        BACKGROUND
   In June 2010, a jury found Nadeem guilty of attempted
first degree sexual assault, a Class III felony pursuant to
Neb. Rev. Stat. §§ 28-201 and 28-319 (Reissue 2008), and
attempted third degree sexual assault of a child, a Class I mis-
demeanor pursuant to § 28-201 and Neb. Rev. Stat. § 28-320.01
(Reissue 2008). Subsequently, the district court sentenced
Nadeem to a total of 3 to 6 years’ imprisonment for his
convictions.
   Nadeem’s convictions and sentences stem from his interac-
tions with a 14-year-old girl who he approached at a public
library when he was 22 years old. The evidence adduced at
Nadeem’s trial can be summarized as follows:
        On August 6, 2009, H.K. was with a friend at a
      Lincoln public library. H.K. was 14 years old at the time.
      While H.K. was sitting at a table in a reading room of the
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library using her laptop computer, she noticed Nadeem,
whom she did not know, standing within a couple feet
of her looking at a newspaper and glancing over at her.
Shortly thereafter, Nadeem began talking to H.K. and
asked several questions, including how old she was,
to which she replied 15. Nadeem asked H.K. for her
telephone number. When she said it was her mother’s
number that she could not give him, he asked if he could
give her his number, and she testified that she said, “I
guess.” Nadeem then left the area, and shortly there­
after, he returned and gave H.K. a piece of paper with a
name, “John Nadeem,” and a telephone number; asked
her to call him; and told her he hoped to hear from her
and to have a nice day. When H.K.’s mother later picked
up H.K. and her friend from the library, H.K. told her
mother about her encounter with Nadeem. H.K. and
her mother reported the incident to the library and then
called the police. The next day, the police asked H.K. to
make a controlled call to Nadeem from the police station,
which she agreed to do.
   H.K. spoke with Nadeem and asked him why he
wanted her to call. Nadeem indicated that he wanted
to talk to her more and to see her. The conversation
continued, and they began discussing what they would
do together, which led to Nadeem’s indicating that he
wanted to touch H.K. When asked how, Nadeem said that
he had a “grand collection of ideas” in regard to what
type of touching. H.K. then volunteered to Nadeem that
she was a virgin, and at that point, Nadeem asked H.K.
if she wanted to lose her virginity and when she wanted
to lose it. H.K. told him that she did not know how to do
that, and he told her it could be done by “sexual stimu-
lation” such as “licking,” “kissing,” and “fingering.”
When H.K. stated that she did not know what “finger-
ing” meant, Nadeem said he could not explain it but he
could show her. H.K. asked Nadeem three times if they
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      were going to have “sexual intercourse,” but he appeared
      not to understand that term. When H.K. asked him if he
      was going to “put his penis in her vagina,” he said he
      could. At H.K.’s suggestion, Nadeem and H.K. agreed
      to meet at the library about 30 minutes later, and H.K.
      told him to bring a condom and a can of a particular
      soda pop. Nadeem was arrested when he arrived at the
      library, shortly after the call, although he had neither of
      the requested items.
State v. Nadeem, No. A-10-981, 2013 WL 674158 at *1 (Neb.
App. Feb. 26, 2013) (selected for posting to court website).
   Nadeem appealed his convictions and sentences. Ultimately,
this court reversed Nadeem’s convictions and sentences after
finding that the district court erred in failing to instruct the
jury on the entrapment defense for the charge of attempted
first degree sexual assault and that Nadeem received ineffec-
tive assistance of trial counsel. See State v. Nadeem, supra. In
reversing Nadeem’s convictions, we found: “[T]he sum of the
evidence is sufficient to sustain the convictions when viewed
most favorably to the State, and therefore, Nadeem may be
retried if the State so elects.” Id. at *15. However, we also
found that by the time our opinion was issued, Nadeem was
“on the cusp of having served his entire sentence, if he ha[d]
not already done so.” Id. As such, we instructed the district
court as follows:
      [J]ustice demands that [Nadeem] be immediately released
      from incarceration upon a reasonable bond if he has
      not already been released when our mandate issues. .
      . . [T]he requirement that he register under the Nebraska
      Sex Offender Registration Act is also reversed because
      the convictions which form the basis for that requirement
      are reversed.
Id. at *16.
   Based on this court’s decision to reverse Nadeem’s convic-
tions, on September 9, 2015, Nadeem filed a complaint in the
district court alleging that he was entitled to compensation
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pursuant to the Act. Specifically, Nadeem alleged that he
had been “arrested, prosecuted, convicted, and imprisoned
for crimes for which he was legally and actually innocent.”
Nadeem requested damages in the amount of $500,000. The
State filed a motion to dismiss Nadeem’s complaint pursuant
to Neb. Ct. R. Pldg. § 6-1112(b)(6). In the motion, the State
asserted that Nadeem failed to state a claim upon which relief
could be granted.
   Following a hearing on the State’s motion, the district court
entered an order dismissing Nadeem’s complaint with preju-
dice. The court found that Nadeem failed to state a cause of
action under the Act because he failed to sufficiently allege he
was “‘actually innocent.’” The court also found that Nadeem
could not “cure [this] defect with an amended complaint”
because this court had previously stated in State v. Nadeem,
supra, that the evidence presented at trial was sufficient to sup-
port Nadeem’s convictions.
   Nadeem appeals from the district court’s order.
                 ASSIGNMENTS OF ERROR
   On appeal, Nadeem argues, restated and consolidated, that
the district court erred in granting the State’s motion to dis-
miss and thereby dismissing his complaint for failure to state
a claim.
                   STANDARD OF REVIEW
   [1,2] A district court’s grant of a motion to dismiss is
reviewed de novo. Bruno v. Metropolitan Utilities Dist., 287
Neb. 551, 844 N.W.2d 50 (2014). When reviewing an order
dismissing a complaint, the appellate court accepts as true all
facts which are well pled and the proper and reasonable infer-
ences of law and fact which may be drawn therefrom, but not
the plaintiff’s conclusion. Id.
                           ANALYSIS
   [3] To prevail against a motion to dismiss for failure to
state a claim, a plaintiff must allege sufficient facts, accepted
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as true, to state a claim to relief that is plausible on its face.
In cases in which a plaintiff does not or cannot allege specific
facts showing a necessary element, the factual allegations,
taken as true, are nonetheless plausible if they suggest the
existence of the element and raise a reasonable expectation
that discovery will reveal evidence of the element of the
claim. Id.
   [4] Nebraska is a notice pleading jurisdiction. Tryon v. City
of North Platte, 295 Neb. 706, 890 N.W.2d 784 (2017). Civil
actions are controlled by a liberal pleading regime. Id. A party
is only required to set forth a short and plain statement of the
claim showing that the pleader is entitled to relief. Id. The
party is not required to plead legal theories or cite appropriate
statutes so long as the pleading gives fair notice of the claims
asserted. Id.
   In his complaint, Nadeem asserts that he is entitled to com-
pensation pursuant to the Act. Section 29-4603 provides:
         In order to recover under the . . . Act, the claimant
      shall prove each of the following by clear and convinc-
      ing evidence:
         (1) That he or she was convicted of one or more
      felony crimes and subsequently sentenced to a term of
      imprisonment for such felony crime or crimes and has
      served all or any part of the sentence;
         (2) With respect to the crime or crimes under sub-
      division (1) of this section, that the Board of Pardons
      has pardoned the claimant, that a court has vacated the
      conviction of the claimant, or that the conviction was
      reversed and remanded for a new trial and no subsequent
      conviction was obtained;
         (3) That he or she was innocent of the crime or crimes
      under subdivision (1) of this section; and
         (4) That he or she did not commit or suborn perjury,
      fabricate evidence, or otherwise make a false statement
      to cause or bring about such conviction or the conviction
      of another, with respect to the crime or crimes under
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      subdivision (1) of this section, except that a guilty plea,
      a confession, or an admission, coerced by law enforce-
      ment and later found to be false, does not constitute
      bringing about his or her own conviction of such crime
      or crimes.
The parties appear to agree that Nadeem’s complaint suffi-
ciently alleges that he was previously convicted of a felony
and was imprisoned for approximately 3 years as a result
of this conviction, pursuant to § 29-4603(1); that his felony
conviction was reversed and he was not retried pursuant to
§ 29-4603(2); and that he did not commit or suborn perjury,
fabricate evidence, or otherwise make a false statement to
cause or bring about such conviction or the conviction of
another pursuant to § 29-4603(4). Accordingly, the only issue
we must decide is whether Nadeem sufficiently alleges that he
was innocent of attempted first degree sexual assault pursuant
to § 29-4603(3). We note that, although Nadeem was previ-
ously convicted of both attempted first degree sexual assault
and attempted third degree sexual assault of a child, our analy-
sis focuses solely on his conviction for attempted first degree
sexual assault because the relief provided under § 29-4603
relates only to prior “felony crimes.” Attempted third degree
sexual assault of a child was, at the time Nadeem was charged,
a Class I misdemeanor, and as a result, it does not qualify as
“felony crimes.”
   [5] The Nebraska Supreme Court has previously found that
§ 29-4603(3) requires a claimant to prove “actual innocence,”
or that the claimant “did not commit the crime for which he or
she [was] charged,” in order to recover under the Act. Hess v.
State, 287 Neb. 559, 563, 843 N.W.2d 648, 653 (2014). The
court defined “actual innocence” to refer to “‘[t]he absence
of facts that are prerequisites for the sentence given to a
defendant.’” Id. (quoting Black’s Law Dictionary 859 (9th ed.
2009)). Essentially, § 29-4603(3) requires a claimant to prove
that he did not commit the crime for which he was charged.
Hess v. State, supra.
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   Nadeem was charged with and convicted of attempted first
degree sexual assault. In order to prove a person guilty of
attempted first degree sexual assault, the evidence must show
that the person intentionally engaged in conduct which con-
stituted a substantial step toward subjecting another to sexual
penetration when the person was at least 19 years old and the
victim was at least 12 years old, but was less than 16 years old.
See §§ 28-201 and 28-319. Conduct shall not be considered a
substantial step unless it is strongly corroborative of the per-
son’s criminal intent. § 28-201(3).
   In his complaint, Nadeem alleges that he lacked the crimi-
nal intent to subject H.K. to sexual penetration and that he
did not engage in a substantial step toward subjecting H.K.
to sexual penetration. Specifically, in paragraphs 9 and 11 of
Nadeem’s complaint, he alleges that his initial conversation
with H.K. at the public library was entirely “innocent” and did
not include a “‘sexual component.’” In paragraph 15 of the
complaint, Nadeem alleges that during his telephone conver-
sation with H.K., which police facilitated and initiated, it was
H.K. who brought up sex, while Nadeem was confused, hesi-
tant, and uncertain about this topic of conversation. Nadeem
also alleges that it was H.K. who suggested meeting Nadeem
on that day. Nadeem alleges that although he did go to the
library after his telephone call with H.K. and after she asked
him to meet her there, he arrived without a condom, which
was also requested by H.K.
   We acknowledge that in this court’s previous opinion, State
v. Nadeem, No. A-10-981, 2013 WL 674158 (Neb. App. Feb.
26, 2013) (selected for posting to court website), we specifi-
cally found that the evidence presented at Nadeem’s criminal
trial was sufficient to sustain his convictions for attempted first
degree sexual assault and for attempted third degree sexual
assault. However, in the current appeal, we are analyzing only
whether the allegations in Nadeem’s complaint are sufficient
to state a cause of action under the Act. As such, we are
confined to review only the specific allegations in Nadeem’s
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complaint. We cannot look to evidence outside of the plead-
ings which may or may not be presented at a subsequent phase
of these proceedings. We also cannot assess the nature and
quality of the evidence presented in past proceedings to predict
the outcome of this action.
   During his oral argument, Nadeem’s counsel acknowledged
the high evidentiary bar that must be reached in this case,
particularly given the facts that are likely to be adduced.
However, we find it noteworthy that Nadeem has never before
testified. In his complaint, Nadeem alleged that he did not
have the requisite intent to commit the alleged crime and did
not take a substantial step toward committing that crime. As
such, he alleges that no crime was actually committed. The
decision as to the merits of his claims belong to the finder
of fact.
   When we view the allegations contained in Nadeem’s com-
plaint in their entirety, we conclude that Nadeem included
sufficient factual allegations in his complaint to meet the
liberal pleading regime of our notice pleading rules.
Accordingly, we reverse the district court’s decision to dismiss
Nadeem’s complaint.

                           CONCLUSION
   Nadeem’s complaint alleges sufficient facts to state a claim
for relief that is plausible on its face under the Act. Accordingly,
the district court erred in dismissing his complaint for failure
to state a claim. Therefore, the court’s order dismissing the
complaint is reversed, and the cause is remanded for fur-
ther proceedings.
	R eversed and remanded for
	                                     further proceedings.

  Bishop, Judge, dissenting.
  Given the undisputed facts of this case, Nadeem can-
not state a plausible claim under the Nebraska Claims for
Wrongful Conviction and Imprisonment Act (the Act). The
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Act was not created to compensate individuals who, on
appeal, obtain a reversal and an opportunity for a new trial
as a result of an error occurring at the initial trial. The Act
was created to compensate actually innocent people who were
convicted and imprisoned for a felony crime they absolutely
did not commit. Such situations might include a case of mis-
taken identity or perhaps cases involving a false confession
given under duress and coercion. Subsequent witness, DNA,
or other evidence may prove that such persons did not actu-
ally commit the crime for which they were convicted. That is
not the situation here.
   The Act was created so that “persons who can demonstrate
that they were wrongfully convicted shall have a claim against
the state as provided in the act.” Neb. Rev. Stat. § 29-4602
(Reissue 2016). The Legislature found that “innocent persons
who have been wrongfully convicted of crimes and subse-
quently imprisoned have been uniquely victimized [and] should
have an available avenue of redress,” especially “[i]n light of
the particular and substantial horror of being imprisoned for
a crime one did not commit . . . .” Id. Notably, the statutory
language specifically limits recourse under the Act to those
persons who did not commit the crime for which he or she was
imprisoned. Being actually innocent of committing a crime is
quite different from having a jury conviction reversed and the
cause remanded for a new trial because of an error occurring
during the initial trial.
   As explained by our Supreme Court, in order to recover
under the Act, “actual innocence” must be proved, which is
defined as “‘[t]he absence of facts that are prerequisites for
the sentence given to a defendant.’” Hess v. State, 287 Neb.
559, 563, 843 N.W.2d 648, 653 (2014) (quoting Black’s Law
Dictionary 859 (9th ed. 2009)). “In lay terms, actual inno-
cence means that a defendant did not commit the crime for
which he or she is charged.” Id. In other words, there can be
no facts to support one or more elements of a particular crime.
However, if the facts do exist, even if disputed, to support
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each element of the crime, then there can be no actual inno-
cence. Such facts exist in this case.
   The crime at issue here is attempted first degree sexual
assault. As applied to these facts, a conviction for that crime
would require evidence that Nadeem attempted to subject
H.K. to sexual penetration. See Neb. Rev. Stat. § 28-319
(Reissue 2008). To prove Nadeem attempted to commit this
crime, there must be evidence that he engaged in a substantial
step toward committing the crime; and, conduct shall not be
considered a substantial step unless it is strongly corrobora-
tive of Nadeem’s criminal intent. See Neb. Rev. Stat. § 28-201
(Reissue 2008).
   In the present case, Nadeem does not dispute that he
approached H.K. at the library and that H.K. told him she was
15 years old (even though she was 14). This did not deter the
22-year-old Nadeem from giving H.K. his telephone number
after asking her whether she had a boyfriend (and “other such
small talk,” according to his complaint). When H.K. called
Nadeem the following day, Nadeem told her he wanted to talk
to her and see her, and then they engaged in a sexually explicit
discussion of what they would do together, including “lick-
ing,” “kissing,” and “fingering,” the latter of which Nadeem
said he could not explain to H.K. but he could show her. At
H.K.’s suggestion, Nadeem met her at the library about 30
minutes later.
   Nadeem does not dispute these facts. Rather, Nadeem’s
complaint asserts that “[e]ven if pure speculation could give
rise to the belief that . . . Nadeem may have had the requisite
intent to attempt to sexually assault [H.K.], it was due in total
to the inducement of law enforcement. In other words, he
was entrapped.” However, to the extent Nadeem could have
been successful on a defense of entrapment, he would have
established only legal innocence, not actual innocence. Such a
defense does not erase the existence of the prerequisite facts
from which a jury could (and did) conclude that the neces-
sary elements of attempted first degree sexual assault were
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met beyond a reasonable doubt. The jury could have reached
that same conclusion whether an instruction on entrapment
had been given or whether the evidence regarding Nadeem’s
past behaviors in the library had been excluded. This is
because the essential or prerequisite facts to convict Nadeem
of attempted first degree sexual assault existed. Nadeem
can dispute what the facts mean in terms of his intent, and
he can argue entrapment, but these are matters for a jury to
decide. Nadeem’s arguments do not erase the existence of
the underlying facts. Therefore, even under the principles of
liberal notice pleading, Nadeem cannot claim the “absence
of facts” necessary to establish his actual innocence under
the Act. I would affirm the district court’s order dismissing
Nadeem’s complaint.
