Summary:
This is an appeal from the Otoe County Court sitting as a juvenile court. Following an adjudication hearing, the juvenile court entered an order finding that Gunner B. was a child within the meaning of §43-247(1). The case was set for disposition, and Gunner also moved for a new trial. The juvenile court denied Gunner’s motion for new trial, and he appealed. The Nebraska Supreme Court moved this case to its docket.
This case began after the State filed a petition which alleged that Gunner came within the meaning of § 43-247(1) as a juvenile who has committed an act which would constitute a misdemeanor, infraction, or violation of a city or village ordinance and who was 11 years of age or older at the time the act was committed. The petition also alleged that Gunner had violated § 28-320(1) and (3) by subjecting M.M. to sexual contact when he either knew or should have known that M.M. was physically or mentally incapable of resisting or appraising the nature of such conduct. A hearing was held on the matter and the evidence presented showed that M.M. was 5 years old when the alleged event occurred, while Gunner was 15 years old.
M.M. is the daughter of Tia T. and Nicholas M and niece to Gunner. During the contested adjudication hearing, Nicholas M. testified that he observed Gunner sitting on the floor with his legs over M.M.’s legs, rubbing M.M.’s vagina with his fingers. According to Nicholas, an erection was visible through Gunner’s shorts. Nicholas left with M.M. and later took her to a hospital for a sexual assault examination. The report showed no male DNA or semen, and M.M. did not make any statements against Gunner at any point during these proceedings.
Gunner testified and denied touching M.M. in a sexual manner. Gunner claimed that M.M. was urinating into the floor drain at the time Nicholas entered the basement. Gunner also testified that Nicholas smelled of marijuana and was acting erratically when he left the house with M.M.
M.M.’s grandmother testified that M.M. has a history of urinating into the floor drain in the basement bathroom of her home and that M.M. continued this behavior despite having been reprimanded for doing so in the past. The grandmother testified that after Nicholas left her home with M.M. on the day of the incident, Gunner called to tell her what happened and explained that M.M. had been urinating into the floor drain. She also testified that a few days prior to the incident, Nicholas had smelled of marijuana and she had asked him to leave her home.
Following the formal adjudication hearing, the juvenile court issued an order finding that Gunner was a child within the meaning of § 43-247(1). The juvenile court scheduled a dispositional hearing. Subsequently, Gunner moved for a new trial arguing that the decision was not sustained by sufficient evidence. Gunner’s motion was denied by the juvenile court. Gunner appealed from the court’s adjudication order.
Gunner assigns that the juvenile court erred in finding that he subjected M.M. to sexual contact because the evidence presented at trial was insufficient to (1) prove that M.M. was mentally or physically incapable of resisting or appraising the nature of the conduct or that Gunner knew or should have known of that lack of capacity, (2) prove sexual arousal or gratification of either party, and (3) support a finding of guilt beyond a reasonable doubt.
M.M.’s Mental or Physical Capacity
Gunner first assigns that the State failed to prove, beyond a reasonable doubt, that he knew or should have known that M.M. was mentally or physically incapable of resisting or appraising the nature of the conduct as set forth in § 28-320(1). The State argues that it presented sufficient evidence when it produced evidence that M.M. was only 5 to 6 years old. While acknowledging the absence of Nebraska case law holding that “young age alone can satisfy the incapable element,” the State directed the Supreme Court to decisions holding as much in other jurisdictions, highlighting the Pennsylvania Supreme Court’s case in Com. v. Rhodes. In Rhodes, a Pennsylvania statute criminalized sexual intercourse with any person “‘who is so mentally deranged or deficient that such person is incapable of consent’” —which language is similar to Nebraska’s defense under § 28-320(1)(b) as interpreted by the Court in In re Interest of K.M. The Pennsylvania Supreme Court found that age fit within this definition and concluded that, as a matter of law, an 8-year-old child was “‘so mentally deficient,’ . . . that she was incapable of consenting to an act whose nature she could not appreciate or comprehend.”
Other courts have come to conclusions similar to the one made by the Rhodes court, finding that young children are incapable of understanding the nature of sexual conduct as a matter of law and, further, that the view that underage children cannot legally consent to sex comes from the common law. Along the same lines, the U.S. Court of Appeals for the Seventh Circuit has observed that “certainly, many children, and indisputably all children under a certain age, are incapable of appraising the nature of sexual conduct.” The Nebraska Supreme Courts agreed with this reasoning, finding that common sense alone establishes that a child of 5 or 6 years of age is among those that are “indisputably” under an age when children are capable of appraising the nature of sexual conduct. Moreover, the Court noted that the Legislature has generally acknowledged that children under a certain age simply lack capacity to understand or be responsible for their actions. Accordingly, the State adequately proved in this case that M.M. was mentally incapable of appraising the nature of the sexual conduct at issue.
The Supreme Court noted it need not, and therefore did not, establish in this case any particular age under which a child is incapable of appraising the nature of sexual conduct. Consequently, to the extent the State attempts to establish in future cases that an older alleged child victim was incapable of appraising the nature of sexual conduct, it may be advisable to adduce evidence regarding the development and understanding of that particular child.
The Court then turned to the question of whether Gunner knew or should have known of this lack of capacity. Gunner testified that he knew M.M. as his niece and his testimony confirmed that he was aware of her age. Gunner also indicated that he had previously babysat M.M. When asked if he had touched M.M. in the way alleged by the petition, Gunner replied that he would “never” do that, suggesting that he was aware that such behavior was not acceptable. The Supreme Court therefore concluded that Gunner should have known that M.M. was mentally incapable of resisting or appraising the nature of Gunner’s conduct.
Evidence of Sexual Arousal or Gratification
Gunner next assigns the evidence was insufficient to establish that he touched M.M. for the purpose of sexual arousal or gratification. As used in § 28-320, sexual contact “includes only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party.” Gunner centers his argument on In re Interest of Kyle O., a case wherein the Nebraska Court of Appeals explained in detail what type of evidence or circumstances must be considered by a court in determining whether a minor’s conduct can be reasonably construed as being for the purpose of sexual arousal or gratification. Gunner contends that the State failed to present any evidence related to Gunner’s age or maturity and that thus, per the standards laid out in In re Interest of Kyle O., the court cannot have reasonably inferred that Gunner’s actions were intended to sexually gratify or arouse either M.M. or himself.
In In re Interest of Kyle O., a 14-year-old child, Kyle O., was adjudicated under § 43-247 for sexual contact with a 5-year-old child, S.S., in violation of § 28-320. A witness observed Kyle standing outside with S.S. and three other children. Kyle then pulled down S.S.’ pants and grabbed S.S.’ penis to show the other children “‘how small it was.’” At trial, the witness was asked whether it looked like the contact was for sexual gratification, and the witness responded that he did not know. On appeal, Kyle asserted that the evidence was insufficient to establish whether sexual contact had occurred, because there was no evidence that Kyle had touched S.S.’ penis for sexual gratification. The Court of Appeals reversed the adjudication and remanded the cause with directions to dismiss, finding that there was no evidence that Kyle was sexually aroused and that yet, “it would be very easy to construe Kyle’s conduct as being for the purpose of humiliating, bullying, or annoying S.S.”
In this case, the Nebraska Supreme Court found In re Interest of Kyle O. to be inapplicable. Here, the State presented, and the court found credible, testimony from Nicholas that Gunner had an erection visible through his clothing while touching M.M.’s vagina. After observing the witnesses and hearing their testimony, the juvenile court accepted Nicholas’ version of the facts over Gunner’s version, a credibility determination to which the Court defers on appeal. Nicholas’ testimony showed that Gunner was visibly aroused at the time he was touching M.M. As such, his actions could reasonably be construed as being for his own sexual arousal or gratification.
Sufficiency of Evidence
Finally, Gunner assigns that even when viewed in a light most favorable to the prosecution, the State’s evidence and witnesses do not eliminate reasonable doubt as to whether Gunner committed a sexual assault in the third degree against M.M. because the State’s evidence either lacked credibility or conflicted with other credible evidence presented by Gunner. Gunner argues that Nicholas’ testimony, in which he stated that he saw the assault occur, directly conflicts with Gunner’s own testimony, where Gunner denied touching M.M. in a sexual manner. Gunner also argues that Nicholas’ testimony is in conflict with his own prior statements because Nicholas testified that he saw Gunner touching M.M. in a sexual manner and that an erection was visible through Gunner’s shorts at the time. But when Nicholas texted the grandmother immediately following the incident, he did not mention that Gunner had an erection and also did not include this piece of information in his statement to police.
The standard of review for juvenile cases is de novo on the record; however, when evidence is in conflict, the Court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. Here, the juvenile court found that Nicholas’ testimony regarding what happened and what he witnessed firsthand was more credible than either Gunner’s version of events or the grandmother’s testimony. Nicholas stated that he saw Gunner touching M.M.’s sexual or intimate parts. He testified to factors that would indicate Gunner was committing this act for sexual arousal or gratification, as evidenced by Nicholas’ testimony that Gunner had a visible erection while touching M.M. While Nicholas’ testimony was directly contradicted by Gunner, the juvenile court observed the witnesses and accepted one version of the facts over the other. The Supreme Court gave weight to the juvenile court’s observations and determinations, and when viewed in this light, found the evidence sufficient to prove Gunner’s guilt beyond a reasonable doubt.
Consequently, the Nebraska Supreme Court affirmed the decision of the juvenile court.