In re Interest of Steven V. , 33 Neb. Ct. App. 256 ( 2024 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Court of Appeals Advance Sheets
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IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 256In re Interest of Steven V., a child
under 18 years of age.
State of Nebraska, appellee, v.
Steven V., appellant.
___ N.W.3d ___
Filed October 22, 2024. No. A-23-801.
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. Jurisdiction: Motions to Dismiss. Because subject matter jurisdiction
can be raised at any time, a party’s motion to dismiss for lack of juris-
diction, even if raised after filing an answer, is not untimely.
3. Indictments and Informations. A trial court, in its discretion, may
permit a criminal information to be amended at any time before verdict
or findings if no additional or different offense is charged and the sub-
stantial rights of the defendant are not prejudiced.
4. Indictments and Informations: Complaints. An amended complaint
or information which charges a different crime, without charging the
original crime, constitutes an abandonment of the first complaint or
information and acts as a dismissal of the same.
5. Juvenile Courts: Criminal Law: Due Process. Although a juvenile
adjudication is not a criminal prosecution, where the juvenile is in
jeopardy of having his or her freedom curtailed, the notice protections
guaranteed by due process are the same as for a criminal defendant.
6. Criminal Law: Due Process: Notice. Where a different criminal
offense is charged without notice, the substantial rights of the defendant
are prejudiced.
7. Notice. A defendant must be given notice of information vital to the
preparation of a defense.
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IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 2568. Indictments and Informations. Generally, to charge a defendant with
the commission of a criminal offense, the information or complaint must
allege each statutorily essential element of the crime charged, expressed
in the words of the statute which prohibits the conduct charged as a
crime, or in language equivalent to the statutory terms defining the
crime charged.
9. Criminal Law: Due Process. It is fundamental that no person may be
convicted of a crime for which he or she was not charged.
10. Juvenile Courts: Due Process. It violates due process to adjudicate
a juvenile, whose freedom could be curtailed, of committing acts con-
stituting a separate and distinct offense for which the juvenile was not
specifically charged.
11. Constitutional Law: Due Process: Waiver. For a waiver of consti-
tutional rights to be valid under the Due Process Clause, it must be
an intentional relinquishment or abandonment of a known right or
privilege.
12. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the Separate Juvenile Court of Douglas
County: Candice J. Novak, Judge. Vacated and remanded with
directions.
Nicholas E. Wurth, of Law Offices of Nicholas E. Wurth,
P.C., for appellant.
Jackson Stokes, Deputy Douglas County Attorney, and Caleb
Chmelka, Senior Certified Law Student, for appellee.
Riedmann, Moore, and Bishop, Judges.
Riedmann, Judge.
INTRODUCTION
The State filed a petition against a 12-year-old boy in the
separate juvenile court of Douglas County, asserting violation
of Neb. Rev. Stat. § 28-319.01 (Reissue 2016). Because this
statute requires that the offender be at least 19 years of age,
the juvenile sought to dismiss the action for lack of subject
matter jurisdiction, and the State requested the juvenile court
to amend the petition to conform to the evidence. Following
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IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 256an adjudication hearing, the juvenile court granted the State’s
motion and adjudicated the juvenile for a violation of Neb.
Rev. Stat. § 28-319(1)(b) (Reissue 2016). Finding the amend-
ment violated the juvenile’s due process rights, we vacate the
juvenile court’s adjudication order and remand the cause with
directions to deny the State’s motion to amend and grant the
juvenile’s motion to dismiss.
BACKGROUND
Procedural History.
On July 12, 2022, the State filed a single-count petition in the
juvenile court against Steven V., asserting “Sexual Assault on
a Child in the First Degree - Class IB Felony §28-319.01(2).”
Specifically, the State alleged:
On or about the 9th day of May, 2022, in Douglas
County, Nebraska, said juvenile did then and there subject
[the victim] who is under twelve years of age to sexual
penetration and the said defendant is at least nineteen
years of age or older, in violation of . . . §28-319.01(1)(a)
and §28-319.01(2) a Class IB Felony.
In response, Steven filed a written denial on August 23,
2022, and requested that the matter be set for a pretrial hearing.
After several continuances and a change of counsel, Steven
filed a pleading entitled “Motion to Dismiss (Rule 12(b)(6))”
on June 8, 2023, 4 days prior to the adjudication hearing. In
the motion, Steven alleged that to come within the meaning of
Neb. Rev. Stat. § 43-247(2) (Reissue 2016), and thus provide
the juvenile court with jurisdiction, he must be under 18 years
of age. However, the State alleged a violation of § 28-319.01,
and an essential element of that statute is that the defendant be
at least 19 years of age. Therefore, he asserted that the juve-
nile court lacked jurisdiction to adjudicate the claim. Steven’s
motion to dismiss was scheduled to be heard the same day as
the adjudication hearing.
At the hearing on Steven’s motion to dismiss, the State
orally moved to amend the petition to conform to § 28-319.
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IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 256In the alternative, it asked the juvenile court to amend the
petition to conform with the evidence the State would pro-
duce. The court indicated that it would take the motions
under advisement and proceed with the adjudication. Steven
pressed for a ruling, stating that there was not just a “techni-
cal defect in the record,” but, rather, “a substantive basis.” He
argued that amending the charge to § 28-319 introduced two
new fundamental issues: “consent and the ability to appreci-
ate the nature of the alleged victim’s ability to consent.” He
asserted that “under procedural assessment and due process,
we have the right to notice of what theory the State is pro-
ceeding under, essentially before any sex act between some-
one is illegal.” He concluded, “So I’m not suggesting we’re
not prepared to go forward today, but I believe that we need
to have the issue of what statute the State is seeking to offer
evidence and the elements they are under in order to prepare
a proper defense.”
The State responded that “if it rectifies the issue imme-
diately, the State is willing to amend to [Neb. Rev. Stat.
§] 28-320 [(Reissue 2016)] in either event.” It proposed that
the court’s taking the ruling under advisement and allowing the
State to present evidence should rectify the issue. The court
accepted the State’s proposal, stating that by taking the mat-
ter under advisement, it “will assist the Court in determining
whether or not the motion to dismiss is proper at this time.”
The adjudication hearing then began.
Adjudication Hearing.
The State adduced evidence from the victim, A.C.G., who
was 8 years old at the time of the hearing. A.C.G. testified
that when he was 7 years old, he was anally penetrated by
Steven. He explained that his family and Steven’s family were
friends. One day, A.C.G. and Steven were in A.C.G.’s mother’s
bedroom watching a movie when Steven showed him a video
containing naked girls and naked boys. Immediately there-
after, Steven “tried to have sex” with him. A.C.G. described
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IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 256this as Steven’s “privacy” touching him on the “inside” of
his “butt.” He stated Steven was behind him, but A.C.G.’s
description of his own position was unclear. A.C.G. said
Steven pulled down A.C.G.’s pants, but not his underwear
because he had forgotten to put it on that day. A.C.G. said
he was “[s]cared” and tried to leave, but he tripped. A.C.G.’s
mother then came into the bedroom, and Steven stopped and
went into the bathroom where he deleted the video. According
to A.C.G., Steven’s mother hit Steven in the mouth.
According to A.C.G.’s mother, she entered the bedroom and
saw A.C.G. with his pants and underwear pulled down. He was
lying on his back, and Steven was on his knees. She began
screaming, and Steven immediately got up and went into the
bathroom. A.C.G.’s mother stated that she pulled up A.C.G.’s
underwear and pants and that A.C.G. began jumping on the
bed. A.C.G.’s mother asked Steven’s mother to leave, and she
took A.C.G. to the hospital.
On cross-examination, A.C.G.’s mother testified that she
was uncertain whether A.C.G. was lying on his side when she
entered the bedroom and that she could not remember if Steven
was on the bed or if Steven had his pants off. She did recall,
however, pulling up A.C.G.’s underwear. She stated that she
asked him on the way to the hospital if “Steven put something
or did Steven do something wrong” to him, and he responded
that Steven “put his privacy thing on my butt.”
Steven’s mother, who, at the time, was visiting with A.C.G.’s
mother in the dining room adjacent to the bedroom, also testi-
fied. According to her, she could see the bedroom door from
where she was sitting. When A.C.G.’s mother got up to check
on the boys, she followed her. She heard A.C.G.’s mother
say that A.C.G.’s zipper was down but testified that A.C.G.’s
mother was not screaming or crying. She could see into the
bedroom and saw Steven on the edge of the bed and A.C.G.
standing with his pants pulled up. She asked Steven what
was going on, and he responded that he was showing A.C.G.
a video. Because she had a rule that her children were not to
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IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 256enter other people’s bedrooms, she hit Steven in the mouth,
and his nose began to bleed. She did not know of the sexual
assault allegations until later that evening.
Steven also testified. He explained that he and A.C.G. were
in the bedroom watching a movie when he showed A.C.G. a
video of a girl in a bikini getting out of a pool. Steven testified
A.C.G. pulled down his own zipper and said “look, this is how
my dog does it,” and he started “humping the pillow.” Shortly
after A.C.G. stopped, A.C.G.’s mother walked in, and Steven’s
mother told Steven to come out. Steven confirmed that his
mother reminded him he was not to go into other people’s bed-
rooms and that she hit him in the mouth.
The State also called to testify a forensic interviewer from
a child advocacy center regarding her interview of A.C.G.
that occurred the day after the incident. A video recording of
the interview was received into evidence. A.C.G.’s recitation
of Steven’s showing him a video with girls and then putting
his “penis” in A.C.G.’s “butt” mirrored A.C.G.’s trial testi-
mony, albeit in different anatomical terms than those he used
at trial.
The State renewed its motion for the court to amend the
petition to conform to the evidence, and Steven renewed his
motion to dismiss. He again asserted that the State’s initial
request to amend the petition to conform to the evidence not
yet presented violated his due process and notice rights. Upon
questioning from the court, the State admitted that it had not
met its burden of proof as to § 28-319.01 but asked the court
to make a finding under § 28-319. The court took the matter
under advisement.
Juvenile Court Order.
In a written order, the juvenile court overruled Steven’s
motion to dismiss filed pursuant to Neb. Ct. R. Pldg.
§ 6-1112(b)(6) as “untimely and unsupported by evidence.” It
granted the State’s motion for the pleadings to conform to the
evidence and amended them to read as follows:
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IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 256[O]n or about the 20th day of April, 2023 [sic], in Douglas
County, Nebraska, said juvenile, Steven . . . , age 12 at
the time of the offense, did then and there subject A.C.G.,
to sexual penetration without the consent of the victim
and who knew or should have known that the victim was
mentally or physically incapable of resisting or apprais-
ing the nature of his or her conduct, in violation of Neb.
Rev. Stat. §28-319(1)(b).
The juvenile court found that Steven “knew or should have
known that the victim was mentally or physically incapable of
resisting or appraising the nature of [Steven’s] conduct” and
adjudicated Steven pursuant to § 43-247(2). Steven appeals.
ASSIGNMENTS OF ERROR
Steven assigns that the juvenile court erred in (1) overruling
his motion to dismiss as untimely, (2) granting the State leave
to amend the petition after the case was submitted, (3) finding
that the State proved that sexual penetration occurred beyond
a reasonable doubt, and (4) finding that the State proved that
Steven knew or should have known that A.C.G. was incapable
of resisting or appraising the nature of his conduct.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings. In re Interest of Jordan B., 300 Neb.
355, 913 N.W.2d 477 (2018). 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
Motion to Dismiss.
The petition alleged that Steven was “born August 2009” and
contained a single count of “Sexual Assault on a Child in the
First Degree - Class IB Felony §28-319.01(2).” Specifically,
it alleged:
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IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 256On or about the 9th day of May, 2022, in Douglas
County, Nebraska, said juvenile did then and there sub-
ject [A.C.G.] who is under twelve years of age to sexual
penetration and the said defendant is at least nineteen
years of age or older, in violation of . . . §28-319.01(1)(a)
and §28-319.01(2) a Class IB Felony.
Although Steven initially filed a denial, he subsequently
filed a pleading entitled “Motion to Dismiss (Rule 12(b)(6)).”
He cited § 6-1112(b)(6) as authority and asserted that because
an element of the charge of violating § 28-319.01 requires
the defendant to be at least 19 years of age, the juvenile court
could not have jurisdiction. Following the adjudication hear-
ing, the juvenile court denied the motion as “untimely and
unsupported by evidence.” Steven assigns that it was error for
the court to dismiss his motion as untimely because a motion
asserting lack of subject matter jurisdiction can be raised at
any time.
We agree with Steven that a court’s subject matter jurisdic-
tion can be challenged at any time; however, he sought to raise
the issue in a motion to dismiss pursuant to § 6-1112(b)(6),
which is a defense that “the pleading fails to state a claim
upon which relief can be granted.” Section 6-1112(b) specifi-
cally provides that “[a] motion making any of these defenses
shall be made before pleading if further pleading is permitted.”
Prior to filing the motion to dismiss in June 2023, Steven had
filed a denial in August 2022; therefore, he failed to file his
§ 6-1112(b)(6) motion before pleading.
However, the juvenile court’s ruling placed form over sub-
stance and failed to consider the substantive basis for the
motion, namely that the juvenile court lacked jurisdiction to
adjudicate a claim under § 28-319.01 because that statute
requires the defendant to be at least 19 years of age. See,
Linda N. v. William N., 289 Neb. 607, 856 N.W.2d 436 (2014)
(stating it is proper for court to look at substance of petition-
er’s actual request, instead of simply title of petition); State
v. Loyd, 269 Neb. 762, 696 N.W.2d 860 (2005) (instructing
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IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 256determination as to how motion should be regarded depends
upon substance of motion, not its title). Consequently, we find
the juvenile court erred in overruling the motion to dismiss on
this basis.
[2] We recognize that the petition was filed July 12, 2022,
and the issue of the court’s jurisdiction was not raised until
June 8, 2023; however, trial counsel who raised the issue did
not enter an appearance for Steven until January 24, 2023.
Numerous orders were entered prior to trial counsel’s appear-
ance in which the court found that “notice, service and juris-
diction of the Court in this matter are proper,” but our record
contains no indication of how the juvenile court reached
that determination. It is clear, however, that prior to June 8,
neither Steven’s counsel nor the State or the juvenile court
raised the glaring error of charging 12-year-old Steven with
violating a statute that required him to be at least 19 years
of age. Regardless, because subject matter jurisdiction can
be raised at any time, there is no waiver or basis for deter-
mining Steven’s motion to dismiss for lack of jurisdiction
was “untimely.”
The juvenile court also found that the motion to dismiss was
unsupported by evidence. This finding is correct only if we
agree it was proper for the petition to be amended. We there-
fore turn to that issue.
Motion to Amend Petition.
In response to Steven’s motion to dismiss, the State orally
sought to “amend” its petition prior to the adjudication hear-
ing to assert a violation of § 28-319 or to “amend the peti-
tion to conform with the evidence the State will produce.”
The juvenile court took the motions under advisement and
proceeded to hear evidence on the adjudication. In closing
arguments, the State renewed its motion and asked that the
petition be amended to conform to the evidence presented
and that the court find in favor of the State as to the ele-
ments of either § 28-319 or Neb. Rev. Stat. § 28-320 (Reissue
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IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 2562016). In its adjudication order, the juvenile court granted
the State’s motion for the petition to be amended to conform
to the evidence. It amended the allegations to assert a viola-
tion of § 28-319(1)(b), although we note its recitation of the
amended allegation includes both § 28-319(1)(a) (consent)
and § 28-319(1)(b) (capacity). Steven assigns that the juvenile
court erred in granting the State leave to amend the petition
after the matter was submitted. We agree.
In certain circumstances, Neb. Ct. R. Pldg. § 6-1115(b)
allows amendment of pleadings. It states:
When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and
to raise these issues may be made upon motion of any
party at any time, even after judgment; but failure so
to amend does not affect the result of the trial of these
issues. If evidence is objected to at the trial on the ground
that it is not within the issues made by the pleadings,
the court may allow the pleadings to be amended and
shall do so freely when the presentation of the merits of
the action will be subserved thereby and the objecting
party fails to satisfy the court that the admission of such
evidence would prejudice the party in maintaining the
party’s action or defense upon the merits. The court may
grant a continuance to enable the objecting party to meet
such evidence.
§ 6-1115(b).
[3,4] The Nebraska Supreme Court has recognized that a
trial court, in its discretion, may permit a criminal informa-
tion to be amended at any time before verdict or findings
if no additional or different offense is charged and the sub-
stantial rights of the defendant are not prejudiced. State v.
Collins, 281 Neb. 927, 799 N.W.2d 693 (2011). However,
it has also recognized the difference between an amendment
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IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 256to a complaint or information and an amended complaint or
information. See State v. French, 262 Neb. 664, 633 N.W.2d
908 (2001). In the context of a speedy trial analysis, the court
explained:
If the amendment to the complaint or information does
not change the nature of the charge, then obviously the
time continues to run against the State for purposes of the
speedy trial act. If the second complaint alleges a differ-
ent crime, without charging the original crime(s), then it
is an amended complaint or information and it supersedes
the prior complaint or information. The original charges
have been abandoned or dismissed.
We hold that an amended complaint or information
which charges a different crime, without charging the
original crime(s), constitutes an abandonment of the
first complaint or information and acts as a dismissal of
the same.
Id. at 670, 633 N.W.2d at 914. See, also, State v. Ferree, 207
Neb. 593, 299 N.W.2d 777 (1980) (holding amended com-
plaint, as opposed to amendment of complaint, entitles defend­
ant in probation violation case to new preliminary hearing).
[5] Although a juvenile adjudication is not a criminal pros-
ecution, where the juvenile is in jeopardy of having his or her
freedom curtailed, the notice protections guaranteed by due
process are the same as for a criminal defendant. See In re
Interest of Jordan B., 300 Neb. 355, 913 N.W.2d 477 (2018).
Therefore, we analyze whether the State was seeking to amend
its petition or file an amended petition. We conclude it was
the latter.
The original petition asserted a violation of § 28-319.01,
which required proof of penetration and the ages of the
offender and the victim. See State v. Samayoa, 292 Neb. 334,
873 N.W.2d 449 (2015). The State sought to “amend” its peti-
tion to conform to evidence required to prove a violation of
§ 28-319. This statute, however, requires proof of penetration
and either lack of consent or evidence of the victim’s capacity
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IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 256to comprehend or appraise the nature of sexual conduct by
the defendant, as well as the defendant’s knowledge of that
capacity. See § 28-319(1)(a) and (b). As acknowledged by
the Supreme Court, § 28-319 and § 28-319.01 are “different
crime[s].” See State v. Hibler, 302 Neb. 325, 340, 923 N.W.2d
398, 413 (2019).
The State acknowledged at the end of the adjudication
hearing that it failed to prove a violation of § 28-319.01.
Consequently, it asked the juvenile court to find a violation
of “section 28-319, wherein an age requirement is not part
of that statute.” Because the request abandoned the original
charge and instead sought to pursue violation of an entirely
different statute, the State’s request was not a request to amend
the petition pursuant to § 6-1115(b), but, rather, a request to
file an amended petition, at which point Steven’s due process
rights to notice started anew. See, State v. French, supra; State
v. Ferree, supra.The State argues that § 6-1115(b) allows amendment of
the pleadings to conform to the evidence when the parties
impliedly or expressly consent to trying issues not pled and
when no prejudice is shown. It argues that Steven did not
object to evidence at trial tending to prove Steven’s knowl-
edge of A.C.G.’s capacity to appreciate the nature of the acts.
Because we find that the State’s request was not to amend the
petition under § 6-1115(b), but, rather, to file an amended peti-
tion, we need not address this argument.
[6] We note for completeness, however, that a criminal
information may be amended at any time before verdict or
findings only if no additional or different offense is charged
and the substantial rights of the defendant are not prejudiced.
See State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011).
Here, a different offense was charged, therefore precluding
amendment on the date of the adjudication hearing. And where
a different criminal offense is charged without notice, the
substantial rights of the defendant are prejudiced. See State v.
Nero, 281 Neb. 680, 798 N.W.2d 597 (2011).
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Cite as 33 Neb. App. 256[7] In State v. Nero, supra, the Supreme Court concluded
that when a defendant does not receive notice of the crime for
which he or she is tried, prejudicial error exists. It explained:
[A] defendant must be given notice of information vital
to the preparation of a defense. An information may suffi-
ciently allege the statutory elements of a criminal offense,
yet fail to state with sufficient particularity information
about the alleged crime which is vital to the preparation
of a defense. The court failed to give [defendant] notice
of the alleged underlying felonies with sufficient particu-
larity. The court’s failure to require the State to specify
the underlying felonies prejudiced [defendant’s] right to
notice and denied [defendant] a meaningful opportunity
to present a complete defense. Because [defendant’s]
right to notice was prejudiced, we cannot determine such
prejudice to be “harmless.”
Id. at 691, 798 N.W.2d at 606.
As stated above, Steven was entitled to the notice protec-
tions guaranteed by due process. See In re Interest of Jordan
B., 300 Neb. 355, 913 N.W.2d 477 (2018). These include that
“the child and his parents or guardian be notified, in
writing, of the specific charge or factual allegations to
be considered at the hearing, and that such written notice
be given at the earliest practicable time, and in any event
sufficiently in advance of the hearing to permit prepara-
tion. Due process of law requires notice of the sort we
have described—that is, notice which would be deemed
constitutionally adequate in a civil or criminal proceed-
ing. It does not allow a hearing to be held in which a
youth’s freedom and his parents’ right to his custody are
at stake without giving them timely notice, in advance of
the hearing, of the specific issues that they must meet.”
Id. at 366, 913 N.W.2d at 485 (quoting In re Gault, 387 U.S. 1,
87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967)).
[8-10] Additionally, Neb. Rev. Stat. § 43-261 (Reissue
2016) requires that an allegation under § 43-247(2) be made
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Cite as 33 Neb. App. 256with the same specificity as a criminal complaint. Generally,
to charge a defendant with the commission of a criminal
offense, the information or complaint must allege each statu-
torily essential element of the crime charged, expressed in the
words of the statute which prohibits the conduct charged as a
crime, or in language equivalent to the statutory terms defin-
ing the crime charged. In re Interest of Jordan B., supra. But it
is fundamental that no person may be convicted of a crime for
which he or she was not charged. Id. It violates due process
to adjudicate a juvenile, whose freedom could be curtailed, of
committing acts constituting a separate and distinct offense for
which the juvenile was not specifically charged. Id.Here, the State did not seek to amend the petition until the
day of the adjudication hearing, at which time it sought to
assert a violation of a statute containing essential elements that
differed from the statute pled. We note that defense counsel
did not specifically request a continuance; however, we do
not view this as a waiver of Steven’s due process rights to
adequate notice.
Prior to the adjudication hearing, Steven’s counsel filed a
motion to dismiss based on the impossible jurisdiction of the
juvenile court over the violation asserted in the petition. At
the adjudication hearing, the State first motioned to amend
the complaint to assert a violation of a different statute.
Steven’s counsel objected. When the juvenile court stated that
it intended to take both the motion to dismiss and the motion
to amend under advisement and proceed with the adjudica-
tion, Steven’s counsel requested to be heard and argued that
the State’s motion was not to correct a technical defect, but,
rather, was to seek a substantive change. He advised the court
that he “need[ed] to have the issue of what statute the State
is seeking to offer evidence and the elements they are under
in order to prepare a proper defense.” Despite counsel’s argu-
ment, the juvenile court again stated it would take the matter
under advisement and would proceed with the adjudication.
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Cite as 33 Neb. App. 256[11] Despite the absence of a specific request for a continu-
ance, “[f]or a waiver of constitutional rights to be valid under
the Due Process Clause, it must be an ‘intentional relinquish-
ment or abandonment of a known right or privilege.’” State
v. Ferree, 207 Neb. 593, 598, 299 N.W.2d 777, 780 (1980)
(quoting Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019,
82 L. Ed. 1461 (1938)). In State v. Ferree, supra, the State
changed the allegations on which it sought to establish a pro-
bation violation approximately a week before trial, and no new
preliminary hearing was held. The Nebraska Supreme Court
vacated the defendant’s conviction, stating that “the State may
not, as it did here, amend its complaint so that the nature or
identity of the offenses charged has been changed. [Defendant]
has not been afforded due process.” Id. at 597, 299 N.W.2d at
780. Quoting the above from Johnson v. Zerbst, supra, it held
that the defendant’s failure to request a preliminary hearing on
the amended complaint did not constitute a waiver of his due
process rights.
Here, Steven’s counsel argued that the State’s motion to
amend would be a substantive change to the petition and that
he needed to know the statute under which the State would
proceed to prepare a proper defense, but the juvenile court
refused to issue an immediate ruling on the State’s motion. On
this record, we cannot say that Steven’s counsel intentionally
relinquished Steven’s due process rights to proper notice.
Because the juvenile court allowed an amended petition to
be filed that changed the nature and identity of the offense
Steven was alleged to have violated without providing suf-
ficient notice, Steven’s due process rights were violated. We
therefore determine the juvenile court erred in granting the
State’s request to amend the petition.
Having determined that the juvenile court erred in allowing
the amended petition, we return to the juvenile court’s order
denying Steven’s motion to dismiss as unsupported by the evi-
dence. As conceded by the State at the end of the adjudication
hearing, and with which we agree, the State failed to prove
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
IN RE INTEREST OF STEVEN V.
Cite as 33 Neb. App. 256the allegations of § 28-319.01 as pled in the original petition.
Given Steven’s age, he could not have violated § 28-319.01,
and the juvenile court did not have jurisdiction over the peti-
tion as pled; accordingly, it erred in denying Steven’s motion
to dismiss. Consequently, we vacate the juvenile court’s order
adjudicating Steven and remand the cause with directions to
grant Steven’s motion to dismiss.
Sufficiency of Evidence.
[12] Steven assigns that the juvenile court erred in finding
sufficient evidence that sexual penetration occurred and in
finding that he knew or should have known A.C.G. lacked the
capacity to resist or appraise the nature of the sexual conduct.
Because we find that the juvenile court erred in amending the
petition, we need not address these assigned errors. An appel-
late court is not obligated to engage in an analysis that is not
necessary to adjudicate the case and controversy before it.
State v. Nolt, 298 Neb. 910, 906 N.W.2d 309 (2018).
CONCLUSION
The juvenile court erred in granting the State’s motion to
amend the petition to conform to the evidence because doing
so violated Steven’s due process rights to proper notice. We
therefore vacate the juvenile court’s adjudication order and
remand the cause to the juvenile court with directions to
deny the State’s motion to amend and grant Steven’s motion
to dismiss.
Vacated and remanded with directions.