Appeal from the District Court for Buffalo County: John P. lcenogle, Judge. Affirmed.

Richard C. Anderson, Buffalo County Attorney, and Judith A. Wolf for appellant.

John H. Marsh, of Knapp, Fangmeyer, Aschwege, Besse & Marsh, P.C., for appellee.

STATE V. JOURNEY

NO. A-97-080 - filed December 2, 1997.

1. Statutes: Appeal and Error. Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the decision made by the court below.

2. Sexual Assault: Minors: Words and Phrases. A person commits sexual assault of a child if he or she subjects another person 14 years of age or younger to sexual contact and the actor is at least 19 years of age or older. Sexual assault of a child is a Class IV felony for the first offense and a Class III felony for all subsequent offenses. Neb. Rev. Stat. § 28-320.01 (Reissue 1995).

3. Criminal Law: Statutes. It is a fundamental principle of statutory construction that penal statutes are to be strictly construed.

HANNON, IRWIN, and INBODY, Judges.

INBODY, Judge.

The State appeals the decision of the Buffalo County District Court, holding that Rick Journey's prior out-of-state conviction for sexual assault of a child could not be used to enhance the penalty for Journey's current Nebraska conviction for sexual assault of a child from a Class IV felony to a Class III felony. For the reasons set forth herein, we affirm.

On June 26, 1996, an information was filed in Buffalo County District Court charging Journey with sexual assault of a child, in violation of Neb. Rev. Stat. § 28-320.01 (Reissue 1995), as a result of events which had occurred on May 28, 1996. The information also alleged that Journey had a prior Colorado conviction for sexual assault of a child which the State alleged should be used to enhance the present offense. Pursuant to § 28-320.01, "[s]exual assault of a child is a Class IV felony for the first offense and a Class III felony for all subsequent offenses."

On September 9, 1996, Journey filed a motion in limine which, in pertinent part, requested that the district court issue an order prohibiting the State from using Journey's prior Colorado conviction for enhancement of the present sexual assault of a child charge; Journey's motion was sustained by the court. On September 24, Journey pled guilty to the offense charged.

Journey's sentencing hearing was held on November 8, 1996. The State repeated its request that Journey's prior Colorado conviction be used to enhance the current conviction to a Class III felony. Again, the court denied the State's request and proceeded with the sentencing as a Class IV felony. Journey was sentenced to 58 months to 5 years' imprisonment with credit for 163 days served. The State then timely appealed the trial court's decision not to allow the use of Journey's prior Colorado conviction. See Neb. Rev. Stat. § 29-2315.01 (Reissue 1995).

On appeal, the State assigns four errors which can be consolidated into the following issue: whether the district court erred in determining that an out-of-state conviction may not be used for enhancement purposes under Nebraska's sexual assault of a child statute, § 28-320.01.

[1 ] Statutory interpretation is a matter of law in connection with which an appellate court has an obligation to reach an independent, correct conclusion irrespective of the decision made by the court below. State v. Emrich, 251 Neb. 540, 557 N.W.2d 674 (1997); State v. Hingst, 251 Neb. 535, 557 N.W.2d 681 (1997).

[2] The issue before this court is one of first impression and is necessarily dependent upon the statutory language of § 28-320.01 as it was in effect at the time of the commission of the offense charged. See State v. Groff, 247 Neb. 586, 529 N.W.2d 50 (1995) (statutes covering substantive matters in effect at time of transaction govern, not later enacted statutes). Section 28-320.01 (Reissue 1995), the version of the statute which was in effect at the time of the commission of Journey's offense, provides:

(1) A person commits sexual assault of a child if he or she subjects another person fourteen years of age or younger to sexual contact and the actor is at least nineteen years of age or older.

(2) Sexual assault of a child is a Class IV felony for the first offense and a Class III felony for all subsequent offenses.

The State contends that, pursuant to subsection (2), enhancement of second or subsequent offenses of sexual assault of a child is not limited to prior Nebraska convictions under § 28-320.01. Instead, the State contends that enhancement is permitted whenever the defendant has received a prior conviction for sexual assault of a child, whether that conviction be a Nebraska conviction or a conviction from another state or federal court. Journey, on the other hand, argues that enhancement pursuant to § 28-320.01 is permitted only when the defendant has been previously convicted under the Nebraska statute.

If the Legislature had intended that non-Nebraska sexual assault of a child convictions should be used to enhance second or subsequent offenses of sexual assault of a child under § 28-320.01, it would have included language to that effect in § 28-320.01, as it has done in other Nebraska statutes. For example, Nebraska's first degree sexual assault statute, Neb. Rev. Stat. § 28-319 (Reissue 1995), provides in part:

(3) Any person who is found guilty of sexual assault in the first degree for a second time when the first conviction was pursuant to this section or any other state or federal law with essentially the same elements as this section shall be sentenced to not less than twenty-five years and shall not be eligible for parole.

Nebraska's habitual criminal statute, Neb. Rev. Stat. § 29-2221 (Reissue 1995), provides:

(1) Whoever has been twice convicted of a crime, sentenced, and committed to prison, in this or any other state or by the United States or once in this state and once at least in any other state or by the United States, for terms of not less than one year each shall, upon conviction of a felony committed in this state, be deemed to be an habitual criminal ....

Similar language is also used in the statute providing for factors to consider in determining whether an object is drug paraphernalia. Neb. Rev. Stat. § 28-440(2) (Reissue 1995) (court shall consider "[p]rior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance").

Furthermore, we note that on July 19, 1996, which was subsequent to Journey's commission of the instant offense, an amended version of the sexual assault of a child statute, § 28-320.01 (Cum. Supp. 1996), became operative. This amended version of § 28-320.01, in pertinent part, states:

(2) Sexual assault of a child is a Class IV felony for the first offense.

(3) Any person who is found guilty of sexual assault of a child under this section and who has previously been convicted (a) under the section, (b) under section 28-319 of first degree or attempted first degree sexual assault, or (c) in any other state or federal court under laws with essentially the same elements as this section or section 28-319 shall be guilty of a Class IC felony.

Pursuant to the plain language of the amended version of § 28-320.01, sexual assault of a child convictions obtained in out-of-state or federal courts under laws with essentially the same elements as Nebraska's sexual assault of a child statute or Nebraska's first degree sexual assault statute are to be considered for the purpose of sentence enhancement.

[3] However, § 28-320.01(2) (Reissue 1995) does not include the language which indicates that out-of-state or federal convictions are to be used to enhance the offense. lt is a fundamental principle of statutory construction that penal statutes are to be strictly construed. State v. Beethe, 249 Neb. 743, 545 N.W.2d 108 (1996); State v. Brozovsky, 249 Neb. 723, 545 N.W.2d 98 (1996). Thus, by the language of the statute, the statute does not apply to sexual assault of a child convictions obtained other than under § 28-320.01 (Reissue 1995).

In sum, pursuant to the clear language of § 28-320.01 (Reissue 1995), which was in effect at the time of the commission of Journey's offense, Journey's prior Colorado conviction was not available for enhancement of the instant offense. Consequently, the district court's order holding that Journey's prior out-of-state conviction for sexual assault of a child could not be used to enhance the penalty for Journey's current Nebraska conviction for sexual assault of a child from a Class IV felony to a Class III felony is affirmed.

AFFIRMED.