Appeals court vacates Nebraska man’s
Child Abuse conviction
OMAHA, Nebraska – The Nebraska Court of Appeals on Tuesday reversed a Scottsbluff man’s child abuse conviction and vacated his prison sentence, adding that he cannot be tried again on the charge.
Cody Olbricht, 26, was convicted last year of intentional child abuse resulting in serious injury, accused of severely beating his girlfriend’s 3-year-old daughter. He was sentenced to 18 to 30 years in prison.
After the appeals court ruling, defense attorney Leonard Tabor said he hopes Olbricht can be released from prison soon, but Scotts Bluff County Attorney David Eubanks said prosecutors plan to ask the Nebraska Supreme Court to review the ruling.
The appeals court said there was insufficient evidence presented at trial to convict Olbricht, adding that prosecutors failed to provide evidence that the child was in Olbricht’s sole care at the time she received injuries that led to a brain bleed and lacerated liver.
“We note that there was some circumstantial evidence that (the child) was afraid of Olbricht, that she said Olbricht hurt her and that she had previously suffered injuries while in Olbricht’s care,” Judge John Irwin wrote for the court.v “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.”
The appeals court determined that because the case lacks sufficient evidence, double jeopardy applies and Olbricht cannot be tried again.
Court records show the girl was hospitalized in late September 2014 after her grandmother noticed she had a fever and was lethargic and vomiting. Doctors determined she had multiple injuries. Besides the liver laceration and brain bleed, her injuries included a broken rib and bruising covering her body and face.
Scottsbluff police said there was little food in the home, and the girl’s clothes and bedding were stained with urine.
The girl’s mother, 25-year-old Cassandra Miller, was sentenced last year to two years’ probation after pleading no contest to misdemeanor child abuse by neglect.
Tabor, Olbricht’s attorney, said he had not had a chance by Tuesday afternoon to inform Olbricht of the ruling.
“It was pretty close case from the get-go; I’m not terribly surprised,” he said of appeals court ruling.
Eubanks disagreed, saying he’s confident that the evidence he presented over three days left no doubt that it was Olbricht who injured the child.
“When the defendant testifies on cross-examination that he had exclusive control over the child in those two instances when the most severe injuries happened, it’s hard to reconcile the evidence with the opinion,” Eubanks said.