In re Interest of Gabriel P. , 29 Neb. Ct. App. 431 ( 2021 )

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Nebraska Court of Appeals Advance Sheets
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IN RE INTEREST OF GABRIEL P.
Cite as 29 Neb. App. 431In re Interest of Gabriel P., a child
under 18 years of age.
State of Nebraska, appellee, v.
Gabriel P., appellant.
___ N.W.2d ___
Filed January 26, 2021. No. A-20-180.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings. When the evidence is in conflict,
however, an appellate court may give weight to the fact that the lower
court observed the witnesses and accepted one version of the facts over
the other.
2. Juvenile Courts: Criminal Law: Appeal and Error. Although an adju-
dication is not a criminal proceeding, an appellate court takes guidance
from the criminal laws of Nebraska.
3. Juvenile Courts: Criminal Law. Adjudication under Neb. Rev. Stat.
§ 43-247(1), (2), (3)(b), and (4) (Reissue 2016) is akin to cases brought
under the Nebraska Criminal Code or other statutes specifying crimi-
nal offenses.
4. Appeal and Error. For an alleged error to be considered by an appel-
late court, an appellant must both assign and specifically argue an
alleged error.
5. Sexual Assault. 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.
6. ____. Nothing in the plain language or legislative history of Neb. Rev.
Stat. § 28-319(1)(b) (Reissue 2016) limits or qualifies the “incapable of
resisting or appraising the nature of his or her conduct” phrase.
7. ____. The victim’s lack of consent is not an element of the crime of
sexual assault when the victim is incapable of resisting or appraising the
nature of his or her conduct.
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IN RE INTEREST OF GABRIEL P.
Cite as 29 Neb. App. 4318. ____. Under Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016), 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.
9. Circumstantial Evidence: Proof. Circumstantial evidence is not inher-
ently less probative than direct evidence and a fact proved by circum-
stantial evidence is nonetheless a proven fact.
10. Circumstantial Evidence: Words and Phrases. Circumstantial evi-
dence is evidence which, without going directly to prove the existence
of a fact, gives rise to a logical inference that such fact exists.
11. Trial: Evidence: Appeal and Error. On appeal, a defendant may not
assert a different ground for his objection to the admission of evidence
than was offered to the trier of fact.
12. Appeal and Error. An objection, based on a specific ground and prop-
erly overruled, does not preserve a question for appellate review on any
other ground.
13. ____. In the absence of plain error, where an issue is raised for the first
time in an appellate court, it will be disregarded inasmuch as a lower
court cannot commit error in resolving an issue never presented and
submitted to it for disposition.
Appeal from the County Court for Scotts Bluff County: Kris
D. Mickey, Judge. Affirmed.
William E. Madelung, of Madelung Law Office, P.C., L.L.O.,
for appellant.
Danielle Larson, Deputy Scotts Bluff County Attorney, for
appellee.
Pirtle, Chief Judge, and Moore and Riedmann, Judges.
Pirtle, Chief Judge.
INTRODUCTION
Gabriel P. appeals from an order of the Scotts Bluff County
Court, sitting as a juvenile court, adjudicating him as being a
juvenile within the meaning of Neb. Rev. Stat. § 43-247(1) and
(2) (Reissue 2016) after finding he had committed the offenses
of minor in possession of alcohol and first degree sexual
assault. Based on the reasons that follow, we affirm.
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IN RE INTEREST OF GABRIEL P.
Cite as 29 Neb. App. 431BACKGROUND
The State filed a petition 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 pos-
sessed alcoholic liquor, and (2) a child within the meaning of
§ 43-247(2), because he committed first degree sexual assault.
Gabriel was 16 years old at the time of the offenses. The victim
of the sexual assault, B.B., was also 16 years old.
An adjudication hearing was held on the State’s petition.
Tina S., B.B.’s mother, was the first witness to testify. She
testified that around 7:30 or 8 a.m. on August 20, 2019, she
knocked on B.B.’s bedroom door and got no response. The
door was locked, but she “picked the door lock.” She then
entered B.B.’s bedroom and observed B.B. and a male indi-
vidual both lying on B.B.’s bed. She later identified the male as
Gabriel, a friend of B.B.’s. Tina told Gabriel to get out of her
house, and at first, he did not react. She had to repeat herself
three or four times before he woke up. She testified that when
he got up, he was “out of it.”
Tina testified that B.B. was covered with a comforter and
was lying on her back with her legs bent and her knees up.
After waking up Gabriel, she went over to B.B., said her name,
and shook her knee. B.B. did not respond. Tina then shook her
daughter on the chest and still there was no response. Tina then
called the 911 emergency dispatch service, and B.B. was taken
to the hospital by ambulance.
Tina further testified that B.B.’s prescription medication for
“[m]ood disorder, depression, and anxiety” was strewn all over
the floor. She also saw an empty bottle of whiskey. Before the
first responders arrived, Tina moved the comforter covering
B.B. and saw that she was naked from the waist down and was
bleeding from her vagina. Tina testified that she knew B.B.
was not bleeding from her period, because the form of birth
control B.B. used prevented her from having periods.
In regard to B.B.’s prescription medication, Tina testified
that it was a struggle to get B.B. to consistently take her
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IN RE INTEREST OF GABRIEL P.
Cite as 29 Neb. App. 431medication. She indicated that B.B had a pattern of taking it
for a few weeks and then not taking it. Tina testified that B.B.
was taking her medication at the time of the incident. However,
on cross-examination, she testified that she did not think B.B.
was taking all of her medications at the time of the incident,
but was taking one for anxiety.
Tori Towne, a nurse, testified that she performed a sexual
assault nurse examination (SANE) on B.B. at the hospital.
A SANE is an examination performed on individuals alleg-
ing they have been sexually assaulted. It involves a physical
inspection of the victim’s body, the victim’s description about
what happened, and then an internal examination. Towne testi-
fied that B.B.’s SANE did not take place until around 2 p.m.,
even though she was admitted to the hospital in the morning,
because of B.B.’s intoxication. At the time B.B. was admitted
to the hospital, her blood alcohol content was .19.
The State’s counsel asked Towne what B.B. told her hap-
pened during the time she was with Gabriel. Gabriel’s counsel
objected based on hearsay. The State responded that it qualified
under Neb. Rev. Stat. § 27-803(3) (Reissue 2016), the hearsay
exception for medical treatment. The court asked Gabriel’s
counsel if he had any further response, and he stated that he did
not. The objection was overruled.
Towne then testified about what B.B. told her happened
prior to the assault. B.B. said that Gabriel had come over in
the middle of the night, around 3 a.m., and that they drank a
bottle of whiskey together. The last thing she remembered was
that they had been drinking, they were kissing and lying on
the bed together, he had his head on her chest, and they were
listening to music. B.B. did not know if any sexual penetration
had occurred.
During the physical examination, Towne 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. On cross-examination, Towne testified
that B.B. told her she took pills earlier in the evening, before
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IN RE INTEREST OF GABRIEL P.
Cite as 29 Neb. App. 431Gabriel came over. Towne was not asked if B.B. told her what
type of pills or how many she took.
Sgt. Dominick Peterson with the Scottsbluff Police
Department testified that he was dispatched to B.B.’s home
around 7:30 or 8 a.m. on August 20, 2019. When he made
contact with B.B., she appeared lethargic and disoriented.
Gabriel was still present in the bedroom, and Peterson noticed
that he had dried blood on his fingers. Peterson asked Gabriel
what his relationship was with B.B., and he said, “I fuck with
her and I love her, but I can’t trust her. She plays too much
games.” Gabriel was asked how he got to B.B.’s home, and
he stated that B.B. picked him up around 1 a.m. Gabriel first
told Peterson that he was drinking at B.B.’s house, but then
he retracted that statement and said he was not drinking, but
that B.B. was drinking. Peterson asked Gabriel to submit to a
preliminary breath test, which he agreed to do, and the result
was .05.
Peterson was later briefly recalled as a witness and testified
that Gabriel told him he did not have sex with B.B. because he
was too drunk, but that Gabriel then recanted and said that he
had not been drinking.
The investigator who photographed the scene and gathered
evidence from B.B.’s bedroom testified that he collected a
prescription bottle of hydroxyzine, a vaping device, and two
empty 750 milliliter bottles of whiskey.
Investigator Brandi Brunz testified that Peterson requested
her assistance in the case and that she went to the hospital to
meet B.B. Brunz testified that she could tell B.B. was under
the influence of something, but she did not know what. She
also observed some bruising on B.B.’s neck and dried blood on
her hand. Brunz was present in the room when the SANE was
performed. She observed the suction injuries as well as various
other bruises. She also saw small tears and swelling during the
vaginal examination.
Brunz also interviewed Gabriel on August 21, 2019, and
he explained how he and B.B. ended up together in her
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IN RE INTEREST OF GABRIEL P.
Cite as 29 Neb. App. 431bedroom. He stated that initially he and B.B. were “messag-
ing” each other on “Snapchat” and Gabriel asked B.B. to
get him a bottle of alcohol. B.B. obtained a bottle, took it to
Gabriel, and left. B.B. and Gabriel continued communicating
on Snapchat and eventually agreed to meet. Around 1 a.m.,
they both walked to an agreed-upon location and walked back
to B.B.’s house together. When they got to the house, they
“snuck in [B.B.’s] bedroom window.” Gabriel told Brunz that
their plan was to drink alcohol together and that B.B. told him
she wanted to get drunk.
Gabriel told Brunz that he sexually penetrated B.B. and
performed oral sex on her. Gabriel also told Brunz that he
saw blood after they had sex but he thought maybe B.B. was
having her period. Brunz asked Gabriel if B.B. said anything
while they were having sex, and he said that she did not say
anything. When Brunz asked Gabriel about B.B.’s level of
intoxication, he stated that “she was going wild and does that
when she’s drunk.” He also said that B.B. was throwing pills
everywhere and that when he asked her what she was doing,
she said she did not know. Brunz noted in her report that
Gabriel told her that he and B.B. had never had sex before the
incident at issue.
On cross-examination, Brunz acknowledged that in her
report she stated that Gabriel told her that he and B.B.
started kissing and then she 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).
ASSIGNMENTS OF ERROR
Gabriel assigns 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.
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IN RE INTEREST OF GABRIEL P.
Cite as 29 Neb. App. 431STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches its conclusions independently of the juve-
nile court’s findings. In re Interest of Vladimir G., 306 Neb.
127, 944 N.W.2d 309 (2020). When the evidence is in conflict,
however, an appellate court may give weight to the fact that the
lower court observed the witnesses and accepted one version of
the facts over the other. Id.ANALYSIS
Sufficiency of Evidence.
[2,3] Gabriel first assigns that the juvenile court erred in
finding that the State proved its case beyond a reasonable
doubt. When an adjudication is based upon § 43-247(1), (2),
(3)(b), or (4), the allegations must be proved beyond a rea-
sonable doubt. Neb. Rev. Stat. § 43-279(2) (Reissue 2016).
Although an adjudication is not a criminal proceeding, we take
guidance from the criminal laws of this state. In re Interest of
Adrian B., 11 Neb. App. 656, 658 N.W.2d 722 (2003). See,
also, In re Interest of L.D. et al., 224 Neb. 249, 398 N.W.2d 91(1986) (adjudication under § 43-247(1), (2), (3)(b), and (4) is
akin to cases brought under Nebraska Criminal Code or other
statutes specifying criminal offenses).
[4] Gabriel argues only that the State did not present suf-
ficient evidence to prove that he committed sexual assault in
the first degree. He does not make an insufficiency argument in
regard to the minor in possession charge or the resulting adju-
dication based on § 43-247(1). Accordingly, we do not address
it. See State v. Smith, 292 Neb. 434, 873 N.W.2d 169 (2016)
(for alleged error to be considered by appellate court, appellant
must both assign and specifically argue alleged error).
In regard to the first degree sexual assault allegation,
Neb. Rev. Stat. § 28-319(1) (Reissue 2016) provides, in rel-
evant part:
Any person who subjects another person to sexual
penetration (a) without the consent of the victim, [or]
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IN RE INTEREST OF GABRIEL P.
Cite as 29 Neb. App. 431(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.
During closing arguments, the State admitted that it did not
prove § 28-319(1)(a) beyond a reasonable doubt and that it
was proceeding based only on § 28-319(1)(b). Accordingly,
the State 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.
Gabriel argues that the State failed to sufficiently prove these
elements. We disagree.
First, there is evidence beyond a reasonable doubt that
penetration occurred in this case. 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 defini-
tion of “[s]exual penetration.” See Neb. Rev. Stat. § 28-318(6)
(Reissue 2016). In addition, Towne noted bleeding in the vagi-
nal canal during the physical examination of B.B., indicating
she had been vaginally penetrated.
[5,6] 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).
Nothing in the plain language or legislative history of
§ 28-319(1)(b) limits or qualifies the “incapable of resisting
or appraising the nature of his or her conduct” phrase. State v.
Rossbach, supra.[7,8] Plain and simple, any person who subjects another
person to sexual penetration, who knew or should have known
that the victim was physically or mentally incapable of resist-
ing or appraising the nature of his or her conduct, is guilty of
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IN RE INTEREST OF GABRIEL P.
Cite as 29 Neb. App. 431first degree sexual assault. § 28-319(1)(b); State v. Rossbach,
supra. The victim’s lack of consent is not an element of the
crime of sexual assault when the victim is incapable of resist-
ing or appraising the nature of his or her conduct. State v.
Rossbach, supra. 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. When
B.B.’s mother entered B.B.’s bedroom in the morning on
August 20, 2019, she was unresponsive and her mother could
not wake her up. She was lying on her back with her legs bent
and her knees up, naked from the waist down, and bleeding
from her vagina. When B.B. arrived at the hospital, her blood
alcohol content was .19. For reference, it is illegal to operate
a motor vehicle when a person has a concentration of .08 of
1 gram or more by weight of alcohol per 100 milliliters of his
or her blood. See Neb. Rev. Stat. § 60-6,196(1)(b) (Reissue
2010). She had been drinking whiskey, and the evidence
shows such consumption occurred sometime after 1 a.m.—
possibly as late as 3 a.m.—and Tina found B.B. unrespon-
sive around 7:30 or 8 a.m. B.B.’s SANE had to be delayed
until the afternoon due to B.B.’s intoxication at the time she
was admited to the hospital. B.B. remembered drinking the
whiskey, and the last thing she remembered was that she and
Gabriel were kissing and lying on the bed together, he had his
head on her chest, and they were listening to music. She did
not remember having sex.
The evidence also supports a finding that Gabriel 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 posi-
tive 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
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IN RE INTEREST OF GABRIEL P.
Cite as 29 Neb. App. 431going 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.
[9,10] The evidence that Gabriel knew or should have
known that B.B. was “mentally or physically incapable of
resisting or appraising the nature of his or her conduct” was
primarily circumstantial. See § 28-319(1)(b). However, cir-
cumstantial evidence is not inherently less probative than direct
evidence and a fact proved by circumstantial evidence is none-
theless a proven fact. See State v. Ross, 283 Neb. 742, 811
N.W.2d 298 (2012) (superseded by statute on other grounds
as stated in State v. Sanders, 289 Neb. 335, 855 N.W.2d 350(2014)). Circumstantial evidence is evidence which, without
going directly to prove the existence of a fact, gives rise to a
logical inference that such fact exists. Id.We conclude there was sufficient evidence for the juvenile
court to find beyond a reasonable doubt that Gabriel com-
mitted first degree sexual assault and was a juvenile within
§ 43-247(2).
Violation of Confrontation Clause.
Gabriel also assigns that the admission of Towne’s testi-
mony 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.
At trial, Towne was asked what B.B. told her about what hap-
pened while she was with Gabriel. Gabriel’s counsel objected
based on hearsay. The State responded that B.B.’s statements
fell under § 27-803(3), the hearsay objection for medical treat-
ment. The court asked Gabriel’s counsel if he had any further
response, and he stated that he did not. The objection was
overruled. Towne then testified about statements B.B. made
to her.
[11-13] Gabriel now argues that Towne’s testimony vio-
lated his right to confrontation. However, Gabriel did not
raise a Confrontation Clause objection at trial. On appeal, a
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Cite as 29 Neb. App. 431defendant may not assert a different ground for his objection
to the admission of evidence than was offered to the trier of
fact. State v. Trice, 292 Neb. 482, 874 N.W.2d 286 (2016).
An objection, based on a specific ground and properly over-
ruled, does not preserve a question for appellate review on
any other ground. Id. In the absence of plain error, where an
issue is raised for the first time in an appellate court, it will
be disregarded inasmuch as a lower court cannot commit error
in resolving an issue never presented and submitted to it for
disposition. Id.Gabriel is asserting a different objection to Towne’s testi-
mony than he did at trial, and therefore, he has not preserved
it for appellate review. We find no plain error in the trial
court’s ruling concerning the admission of Towne’s testimony.
See State v. Vaught, 268 Neb. 316, 682 N.W.2d 284 (2004)
(admission of emergency room doctor’s testimony regarding
victim’s statement when asked what happened to her did not
violate Confrontation Clause). Accordingly, we reject Gabriel’s
Confrontation Clause argument without further discussion.
CONCLUSION
Based upon our de novo review, we conclude that the
State presented sufficient evidence to support the adjudication.
Accordingly, the order of the juvenile court is affirmed.
Affirmed.