In Re Interest of Gabriel

Caselaw Number
29 Neb. App. 431
Filed On


This is an appeal from the Scotts Bluff County Court sitting as a juvenile court.  Gabriel P. appeals the lower court’s finding that he committed the offenses of minor in possession of alcohol and first degree sexual assault.   Court of Appeals affirmed the decision.

A petition was filed alleging Gabriel was (1) a child within the meaning of § 43-247(1), because he was a minor 18 years of age or younger who had unlawfully consumed or possessed alcoholic liquor, and (2) a child within the meaning of § 43-247(2), because he committed first degree sexual assault.  At the time Gabriel was 16 years old as was the victim, B.B. 

At the trial B.B.’s mother testified that she found Gabriel in her daughter’s locked room early in the morning (mom picked the lock), she had trouble waking up both Gabriel and her daughter, she saw an empty whiskey bottle on the floor as well as some of her daughter’s medication.  B.B.’s mother also testified that her daughter was naked from the waist down, her legs were bent with her knees up and she was bleeding from her vagina.  Mom called 911, B. B. was taken by ambulance to the hospital. Mom also testified that her daughter struggled with depression and anxiety and didn’t always take her medications as prescribed. 

Tori Towne, the nurse at the hospital who examined B.B. also testified for the State. Towne stated that she performed a sexual assault nurse examination (SANE) on B.B.  Towne also testified that B.B.’s blood alcohol level was .19.  During direct the State asked Towne what B.B. told her happened with Gabriel, this question was objected to by Gabriel’s counsel as hearsay.  The State responded that the statement qualified under Neb. Rev. Stat. § 27-803(3) (Reissue 2016), the hearsay exception for medical treatment. The trial court overruled the objection.  Towne then testified that B.B. stated to her that Gabriel had come over in the middle of the night, around 3 a.m., they drank a bottle of whiskey together, kissed, and that the last thing she remembered was lying in her bed with Gabriel listening to music. B.B. stated that she did not know if any sexual penetration had occurred.  Towne also testified as to her physical exam of B.B. which she noted bleeding in the vaginal canal, indicating that “something [had] been inserted.” B.B. also had several suction injuries, or “hickeys,” on her chest and neck and B.B. had admitted to Towne that she, B.B., took pills earlier in the evening. 

Sgt. Dominick Peterson testified for the State at the trial as well.  He stated that B.B. appeared lethargic and disoriented when he arrived at the home that morning.  He also stated that Gabriel was still present and that he, Sgt. Peterson, observed dried blood on Gabriel’s fingers.  Peterson also stated that Gabriel told him that he, Gabriel, was in a relationship with B.B.  Peterson testified that Gabriel told several conflicting stories on what transpired that morning.  Gabriel did willingly submit to a breath test, the result was .05.  An investigator who was the house testified to collecting a prescription bottle of hydroxyzine, a vaping device, and two empty 750 milliliter bottles of whiskey.  The investigator, Brunz, was also present for B.B.’s SANE and Brunz testified to observing various other bruises on B.B., and small tears and swelling during the vaginal exam.  Brunz also interviewed Gabriel and testified that Gabriel, among other things, admitted to drinking with B.B. and admitted to sexually penetrating B.B. and performing oral sex on her.  Gabriel indicated to Brunz that B.B. did not say anything while they were having sex. When asked about B.B.’s level of intoxication Gabriel told Brunz that “she was going wild and does that when she’s drunk.”  Brunz also testified that Gabriel told her, Brunz, that he and B.B. started kissing and then she [B.B.] told him to “fuck [her] and come inside [her].”

Following the hearing, the court found that the State had met its burden beyond a reasonable doubt as to both counts and adjudicated Gabriel as a juvenile within the meaning of § 43-247(1) and (2).  Gabriel appealed this order on the basis that the juvenile court erred in (1) finding that the State proved its case beyond a reasonable doubt and (2) violating his right to confrontation.

In its opinion the Appeals Court reminds us that when an adjudication is based upon § 43-247(1), (2), (3)(b), or (4), the allegations must be proved beyond a reasonable doubt. Neb. Rev. Stat. § 43-279(2) (Reissue 2016).  Gabriel argued that the State did not present sufficient evidence to prove that he committed sexual assault in the first degree.  Neb. Rev. Stat. § 28-319(1) (Reissue 2016) provides, in relevant part: Any person who subjects another person to sexual penetration (a) without the consent of the victim, [or] (b) who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct . . . is guilty of sexual assault in the first degree. Since the State admitted that it did not prove § 28-319(1)(a) beyond a reasonable doubt it only had to prove beyond a reasonable doubt that Gabriel subjected B.B. to sexual penetration and that Gabriel knew or should have known that B.B. was mentally or physically incapable of resisting or appraising the nature of her conduct.  As laid out in testimony Gabriel admitted to Brunz that he and B.B. had sexual intercourse and that he performed oral sex on her.  Both of these acts meet the statutory definition of “[s]exual penetration.” See Neb. Rev. Stat. § 28-318(6) (Reissue 2016). In addition, Towne noted bleeding in the vaginal canal during the physical examination of B.B., indicating she had been vaginally penetrated.  Second, the State proved the issue of capacity beyond a reasonable doubt. Nebraska’s first degree sexual assault law prohibits, without qualification, a perpetrator from sexually penetrating a victim that the attacker knows or should have known is “mentally or physically incapable of resisting or appraising the nature of his or her conduct.” § 28-319(1)(b). See State v. Rossbach, 264 Neb. 563, 650 N.W.2d 242 (2002).  Under § 28-319(1)(b), the two-part analysis requires a significant abnormality, such as severe intoxication or other substantial mental or physical impairment, on the part of the alleged victim, and knowledge of the abnormality on the part of the alleged attacker. State v. Rossbach, supra. In the present case, there was evidence of a significant abnormality in that B.B. was severely intoxicated.  Several witnesses testified as to B.B.’s impairment and Gabriel himself knew that B.B. was intoxicated. He and B.B. were drinking together, and B.B. told him she wanted to get drunk. Gabriel tested positive for alcohol, but his level of intoxication was .05, compared to B.B.’s level of .19. There was also evidence Gabriel knew that B.B. was drunk, because he told Brunz that “she was going wild and does that when she’s drunk.” Gabriel also told Brunz that when B.B. was throwing pills all over the room, she said she did not know what she was doing.

Gabriel also argues that the admission of Towne’s testimony about statements made by B.B. violated his rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution and article 1, § 11, of the Nebraska Constitution.  While it is true Gabriel objected to Towne’s testimony regarding what B.B. said to her on hearsay grounds, Gabriel did not raise a Confrontation Clause objection at that time.  Raise it or waive it, it’s catchy for a reason. 

The Appeals Court found that the State did indeed present sufficient evidence to support the adjudication.