State v. Jordan B. (In Re Interest of Jordan B.) , 913 N.W.2d 477 ( 2018 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
06/22/2018 08:15 AM CDT
- 355 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
In re I nterest of
Jordan B., a child
under18 years of age.
State of Nebraska, appellee,
v. Jordan B., appellant.
___ N.W.2d ___
Filed June 22, 2018. No. S-17-1092.
1. Constitutional Law: Due Process: Appeal and Error. Whether the
procedures given an individual comport with constitutional requirements
for procedural due process presents a question of law that an appellate
court reviews independently of the lower court.
2. 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.
3. Lesser-Included Offenses. Whether a crime is a lesser-included offense
is determined by a statutory elements approach and is a question of law.
4. Appeal and Error: Words and Phrases. Plain error exists where there
is an error, plainly evident from the record but not complained of at
trial, which prejudicially affects a substantial right of a litigant and is of
such a nature that to leave it uncorrected would cause a miscarriage of
justice or result in damage to the integrity, reputation, and fairness of the
judicial process.
5. Indictments and Informations. In a criminal case, due process
requires that an information must inform the accused with reason-
able certainty of the crime charged so that the accused may prepare a
defense to the prosecution and, if convicted, be able to plead the judg-
ment of conviction on such charge as a bar to a later prosecution for
the same offense.
6. ____. Generally, to charge a defendant with the commission of a crimi-
nal 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.
- 356 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
7. Indictments and Informations: Lesser-Included Offenses: Notice.
The defendant is by implication charged with the lesser offense when
charged with the greater offense, and due process is satisfied so long
as the nature of the crime charged was sufficient to give the defendant
notice that he or she could be convicted of the lesser-included offense.
8. Juvenile Courts: Criminal Law. Juvenile proceedings are not crimi-
nal prosecutions.
9. 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.
10. Sexual Assault. Third degree sexual assault is a separate and distinct
offense from the crime of first degree sexual assault.
11. Juvenile Courts: Double Jeopardy. Jeopardy attaches in juvenile
delinquency proceedings when the juvenile court, as the trier of the
facts, begins to hear evidence.
12. Statutes: Appeal and Error. Appeals under specific statutory provi-
sions require strict adherence to the statute’s procedures.
13. Juvenile Courts: Jurisdiction: Appeal and Error. An appellate court
lacks jurisdiction to consider the State’s exceptions that fail to fully com-
ply with the statutory procedures outlined in Neb. Rev. Stat. § 29-2317
(Reissue 2016), as incorporated by Neb. Rev. Stat. § 43-2,106.01
(Reissue 2016).
Appeal from the County Court for Hall County: Timothy E.
Hoeft, Judge. Reversed and remanded with directions.
Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom &
Stehlik, P.C., L.L.O., for appellant.
Matthew C. Boyle, Deputy Hall County Attorney, for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ.
Heavican, C.J.
I. NATURE OF CASE
In adjudication proceedings under Neb. Rev. Stat.
§ 43-247(2) (Reissue 2016), the only law violation alleged in
the petition was first degree sexual assault. After a hearing,
- 357 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
the juvenile court found that the State failed to prove the juve-
nile, Jordan B., committed acts constituting first degree sexual
assault. Nevertheless, the juvenile court adjudicated Jordan
based on its finding that he committed third degree sexual
assault. The court believed that third degree sexual assault was
a lesser-included offense of first degree sexual assault, and
could thus be raised sua sponte. Because third degree sexual
assault is not a lesser-included offense of first degree sexual
assault, we reverse, and remand with directions.
II. BACKGROUND
1. Juvenile Petition
The county attorney filed a petition asking the juvenile court
to adjudicate Jordan as a juvenile who committed an act that
would constitute a felony under the laws of this State pursu-
ant to § 43-247(2). The felony alleged was first degree sexual
assault as described in Neb. Rev. Stat. § 28-319 (Reissue
2016). The petition alleged that Jordan committed such acts on
or between January 25 and November 8, 2016.
2. Evidence at Hearing
Jordan was 17 years old at the time of the hearing on the
petition. He lived at home with his mother, a childcare pro-
vider (the provider), as well as with his 19-year-old brother,
Tyler B. The provider operates a daycare out of her home, tak-
ing care of eight children. Jordan’s alleged victim was a child
in the provider’s care, who was cared for Mondays through
Fridays during the time period alleged in the petition. The vic-
tim’s older brother also attended the daycare when he was not
in school.
(a) State’s Evidence
The State’s evidence consisted of the testimony of the vic-
tim, her mother, her older brother, and the investigator who
interviewed Jordan regarding the allegations.
The victim was 5 years old at the time of the hearing. The
victim testified that on at least one occasion, Jordan took her
- 358 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
to his room downstairs, shut the door, took off her shorts and
underwear, had her lie down on the bed and put her legs up,
and “sticked his wiener in my butt.” The victim described
her “butt” as “where I pee out and that’s where I poop.” She
described “wiener” as “the part that boys pee out of.” The
victim said it hurt “really bad.” The victim’s testimony was
inconsistent as to whether this had occurred once or twice, but
she ultimately testified that it occurred only once.
The victim’s brother was 8 years old at the time of the
hearing. The brother testified the victim told him that while in
Jordan’s room, Jordan “stuck his wiener up her butt” and that
Jordan told the victim she should not tell anybody. The brother
testified that sometimes, the provider left the house during day-
care hours to run errands. At such times, Jordan’s grandmother
usually would watch the children. The brother reported that
sometimes Jordan or Tyler would watch the children, but that
whenever Jordan and Tyler were home, either the provider or
the grandmother was also there. However, when the victim’s
brother was recalled to testify after his mother’s testimony, he
stated that there were times when neither the provider nor the
grandmother was at the daycare and Tyler was responsible for
watching the children.
The victim’s mother testified that on November 7, 2016,
the victim told her that “Jordan tried to stick his wiener in her
butt” and that Jordan had told the victim not to tell anybody.
On cross-examination, the mother reiterated that the victim told
her that Jordan had “tried” to “stick his wiener in her butt” and
that the victim had never told her whether there was penetra-
tion. The mother testified that the victim told her this attempt
occurred only one time.
The mother worked for the Department of Health and
Human Services, investigating allegations of child abuse and
neglect, including sexual abuse. She told her children that her
“job is to help kids.” She testified that she did not otherwise
discuss her job with her children. She did sometimes discuss
her work with her husband when the children were at home,
- 359 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
but she testified that she did not discuss things that were confi-
dential. Thus, the mother affirmed that she had never discussed
around her family the specific allegations of any cases she
worked on.
The investigator testified that he interviewed Jordan on
November 17, 2016. Jordan consistently denied the allegations
against him. Jordan speculated that the victim could have been
angry with him for correcting her at some point. Jordan fur-
ther told the investigator that if something of that nature had
occurred to the victim, it was someone else who committed the
alleged acts.
(b) Defense
Jordan testified in his own defense and presented the testi-
mony of the provider, the grandmother, and Tyler. Jordan also
entered into evidence the video of the interview of the victim
conducted at a child advocacy center.
The video was offered by Jordan to show the victim stated
that the assault occurred twice, contradicting her trial testi-
mony. The video reflects that in her interview, the victim said
that Jordan had “put his wiener in [her] butt” and that then she
“kicked him because it was too hard.” The victim described
that this happened in Jordan’s room after he had her lie down
on her back in his bed and had taken her shorts and underwear
off. At the time, the provider was not home and Jordan and
Tyler were watching the children. The victim repeatedly said
this occurred twice, once when she was 4 years old and once
when she was 5 years old.
Jordan testified that he was never alone with the victim
and denied committing any of the alleged acts. Jordan denied
touching the victim in any way. Jordan testified that he was
never home alone with the daycare children. When the provider
was not there, either the grandmother or Tyler was in charge
of the children. Though Jordan sometimes watched certain
daycare children on the weekends, he never babysat the victim.
Jordan explained that he told the investigator it must have been
- 360 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
someone else who had sexually assaulted the victim, based on
things he had heard the victim’s mother say. Due to a hearsay
objection, Jordan did not elaborate.
The provider testified that she never left Jordan alone with
the daycare children. She explained that it is part of the licens-
ing requirements that she never leave the children alone with
anyone younger than 18 years of age. When she has to leave
the home while children are in her care, she leaves them with
the grandmother, who is also a licensed daycare provider, or
with Tyler.
The provider denied there was ever any occasion in which
Jordan could have been alone in his bedroom with any of
the daycare children. The provider stated that she, the grand-
mother, and Tyler had been trained to keep all eight children in
sight at all times. Thus, there was never a time when she was
home that the victim was out of her sight.
The provider described that when the children are outside,
one adult is outside and another is inside the house, so that
children running inside to use the restroom or get a snack
are never unsupervised. Specifically, there was never a time
when Jordan would have been in the house alone with a child
while she was outside with other children. The provider testi-
fied that sometimes, the victim’s mother shared with her the
details of cases she worked on at the Department of Health and
Human Services.
The grandmother testified that during the time in question,
she had shut down her daycare due to her husband’s health.
Therefore, approximately three or four times a month, she was
able to assist the provider in caring for the daycare children.
The grandmother testified that there was no occasion when
she worked at the daycare that Jordan was also present in
the home.
Tyler testified that he helped with the daycare once or
twice a week and that there was never a time when Tyler had
primary care of the children that both Jordan and the victim
were there. Also, when Tyler was home, while the provider
- 361 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
had primary care of the children, he never saw the victim go
with Jordan into his room. He never saw Jordan interact with
the victim at all.
3. Motion toA mend Petition
and A rgument
Before closing arguments, the State asked the court to
amend the petition to conform to the evidence. The county
attorney explained, “I believe it more appropriate maybe —
a charge in this case, based off the evidence that was elic-
ited at trial, would be attempted sexual assault in the first
degree.” Jordan’s counsel objected. The court never ruled on
the motion, but stated its belief that the court had “authority
sua sponte to consider less or [sic] included defenses in a trial
to the bench.”
The county attorney proceeded to argue that the State met
its burden with regard to a charge of attempted first degree
sexual assault. Jordan’s attorney argued that the State had
not met its burden for adjudication under the petition, noting,
among other things, the lack of opportunity. The juvenile court
took the matter under advisement.
4. Trial Court’s Order
The court adjudicated Jordan as a child within the mean-
ing of § 43-247(1). The court found that the State failed
to meet its burden of proof with respect to the offense of
first degree sexual assault as charged. Nevertheless, the court
raised sua sponte the “lesser included offense” of third degree
sexual assault, contrary to Neb. Rev. Stat. § 28-320(1) and (3)
(Reissue 2016), a Class I misdemeanor. The court explained
that it found the victim credible, that the State had proved
sexual contact, that Jordan knew or should have known that the
victim was incapable of appraising the nature of his conduct,
and that the conduct did not cause serious personal injury to
the victim.
Jordan appeals the adjudication.
- 362 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
III. ASSIGNMENT OF ERROR
Jordan assigns and argues on appeal that the evidence was
insufficient for the juvenile court to adjudicate him on the
“lesser included offense of third degree sexual assault.”
IV. STANDARD OF REVIEW
[1] Whether the procedures given an individual comport
with constitutional requirements for procedural due process
presents a question of law that an appellate court reviews inde-
pendently of the lower court.1
[2] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings.2 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.3
[3] Whether a crime is a lesser-included offense is deter-
mined by a statutory elements approach and is a question
of law.4
V. ANALYSIS
[4] We hold that the juvenile court plainly erred by adju-
dicating Jordan on a law violation that was not pled and was
not a lesser-included offense of the crime pled. Plain error
may be asserted for the first time on appeal or noted by the
appellate court on its own motion.5 Plain error exists where
there is an error, plainly evident from the record but not
complained of at trial, which prejudicially affects a substan-
tial right of a litigant and is of such a nature that to leave it
uncorrected would cause a miscarriage of justice or result in
1
See In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).
2
In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (2018).
3
Id.
4
State v. Dragoo, 277 Neb. 858, 765 N.W.2d 666 (2009).
5
State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003).
- 363 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
damage to the integrity, reputation, and fairness of the judi-
cial process.6
The federal Constitution provides that under the Due Process
Clause, no state “shall . . . deprive any person of life, liberty,
or property, without due process of law.”7 Neb. Const. art.
I, § 3, similarly provides that “[n]o person shall be deprived
of life, liberty, or property, without due process of law, nor
be denied equal protection of the laws.” We have interpreted
the Nebraska Constitution’s due process and equal protection
clauses to afford protections coextensive to those of the fed-
eral Constitution.8
[5] In a criminal case, due process requires that an infor-
mation must inform the accused with reasonable certainty of
the crime charged so that the accused may prepare a defense
to the prosecution and, if convicted, be able to plead the
judgment of conviction on such charge as a bar to a later
prosecution for the same offense.9 We have said that an indict-
ment or information meets all constitutional requirements
(1) if it shows that the acts which the defendant is charged
with committing amounted to a crime which the court had
power to punish and that it was committed within the ter-
ritorial jurisdiction of the court, (2) if it informs the defend­
ant of the nature of the charge against him or her, and (3)
if it constitutes a record from which it can be determined
whether a subsequent proceeding is barred by the former
adjudication.10
[6] 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,
6
Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018).
7
U.S. Const. amend. XIV, § 1.
8
Keller v. City of Fremont, 280 Neb. 788, 790 N.W.2d 711 (2010).
9
See State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004).
10
State v. Piskorski, 218 Neb. 543, 357 N.W.2d 206 (1984); Cowan v. State,
140 Neb. 837, 2 N.W.2d 111 (1942).
- 364 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
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.11 Where an
information alleges the commission of a crime using lan-
guage of the statute defining that crime or terms equivalent to
such statutory definition, the charge is sufficient.12 However,
when the charging of a crime in the language of the statute
leaves the information insufficient to reasonably inform the
defendant as to the nature of the crime charged, additional
averments must be included to meet the requirements of
due process.13
[7] Due process does not generally require that the State
explicitly set forth in the information the lesser-included
offense of the crime charged.14 The defendant is by implica-
tion charged with the lesser offense when charged with the
greater offense, and due process is satisfied so long as the
nature of the crime charged was sufficient to give the defend­
ant notice that he or she could be convicted of the lesser-
included offense.15 We have accordingly held that in a bench
trial, the court in its discretion may dismiss or acquit on the
charge in the information but nevertheless convict the defend­
ant of a lesser-included offense not explicitly set forth in the
information.16 Likewise, in a jury trial, the court on its own
motion may instruct the jury as to lesser-included offenses not
explicitly set forth in the information.17
11
State v. Van, supra note 9.
12
Id.
13
Id.
14
State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003); State v. Keup,
supra note 5; State v. Foster, 230 Neb. 607, 433 N.W.2d 167 (1988).
15
See State v. James, supra note 14.
16
See, State v. James, supra note 14; State v. Keup, supra note 5; State v.
Foster, supra note 14.
17
See, State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986); Neb. Rev. Stat.
§ 29-2025 (Reissue 2016).
- 365 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
But it is fundamental that no person may be convicted of a
crime for which he or she was not charged.18 The U.S. Supreme
Court has said that doing so would be “‘sheer denial of due
process.’”19 The Nebraska Court of Appeals has thus recog-
nized plain error when the defendant was convicted of a crime
which was not charged and which was not a lesser-included
offense of the crime charged.20
[8] Juvenile proceedings are not criminal prosecutions.21
Nevertheless, where the juvenile is in jeopardy of having his
or her freedom curtailed, the notice protections guaranteed by
due process are the same.22 The U.S. Supreme Court held, in
In re Gault,23 that while the 14th Amendment does not require
that the hearing at the adjudicatory stage conform with all the
requirements of a criminal trial, where juvenile delinquency
proceedings could result in curtailing the juvenile’s freedom,
the Due Process Clause requires application of “‘the essentials
of due process and fair treatment.’”
[9] Under In re Gault, a juvenile offender in a delinquency
adjudication in which the juvenile’s freedom could be curtailed
has the same constitutional rights as an adult with regard to
four specific due process rights: (1) to receive notice of the
charges, (2) to be represented by counsel, (3) to confront
and cross-examine witnesses, and (4) to invoke the privilege
18
See Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093
(1940).
19
Id., 310 U.S. at 96.
20
State v. Newman, 5 Neb. Ct. App. 291, 559 N.W.2d 764 (1997), overruled on
other grounds, State v. Becerra, 253 Neb. 653, 573 N.W.2d 397 (1998).
21
See, In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); In
re Interest of Heather R. et al., 269 Neb. 653, 694 N.W.2d 659 (2005); In
re Interest of Leo L., 258 Neb. 877, 606 N.W.2d 783 (2000).
22
See, In re Gault, supra note 21; In re Interest of Heather R. et al., supra
note 21; In re Interest of Leo L., supra note 21.
23
In re Gault, supra note 21, 387 U.S. at 30. See In re Interest of Leo L.,
supra note 21. See, also, McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.
Ct. 1976, 29 L. Ed. 2d 647 (1971).
- 366 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
against self-incrimination.24 Regarding notice, the Court in In
re Gault held that in juvenile proceedings, courts must comply
with the due process requirements
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.25
We agree with numerous other courts that hold that under
In re Gault, it violates due process to adjudicate a juvenile,
whose freedom could be curtailed, of committing acts consti-
tuting a separate and distinct offense for which the juvenile
was not specifically charged.26
[10] Third degree sexual assault is a separate and distinct
offense from the crime of first degree sexual assault that was
described in the petition. The juvenile court was incorrect in
concluding that third degree sexual assault under § 28-320 is
a lesser included offense of first degree sexual assault under
§ 28-319.27
24
See In re Interest of Leo L., supra note 21.
25
In re Gault, supra note 21, 387 U.S. at 33-34. See, also, In re Interest of
Juan L., 6 Neb. Ct. App. 683, 577 N.W.2d 319 (1998).
26
See, In Interest of Bryant, 18 Ill. App. 3d 887, 310 N.E.2d 713 (1974);
In re Areal B., 177 Md. App. 708, 938 A.2d 43 (2007); In Interest of J.T.,
447 S.W.3d 212 (Mo. App. 2014); State ex rel. Juv. Dept. v. Henson, 97
Or. App. 26, 775 P.2d 325 (1989); In re Interest of Becker, 370 Pa. Super.
487, 536 A.2d 1370 (1988). See, also, In re Davis, 114 N.C. App. 253, 441
S.E.2d 696 (1994).
27
See, also, State v. Malcom, 7 Neb. Ct. App. 286, 583 N.W.2d 45 (1998).
- 367 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
In 1993, we adopted a statutory elements test to determine
whether an offense is a lesser-included offense of another.28
Under this test, we look to the elements of the crime rather
than the facts of the case, and to be a lesser-included offense,
the elements of the lesser offense must be such that it is impos-
sible to commit the greater offense without at the same time
committing the lesser.29
First degree sexual assault as described in § 28-319(1) is
as follows:
Any person who subjects another person to sexual pen-
etration (a) without the consent of the victim, (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, or (c) when the actor is nine-
teen years of age or older and the victim is at least twelve
but less than sixteen years of age is guilty of sexual
assault in the first degree.
Penetration is defined in Neb. Rev. Stat. § 28-318(6) (Reissue
2016) as
sexual intercourse in its ordinary meaning, cunnilingus,
fellatio, anal intercourse, or any intrusion, however slight,
of any part of the actor’s or victim’s body or any object
manipulated by the actor into the genital or anal openings
of the victim’s body which can be reasonably construed
as being for nonmedical or nonhealth purposes. Sexual
penetration shall not require emission of semen.
Second and third degree sexual assault is set forth in
§ 28-320(1):
Any person who subjects another person to sexual con-
tact (a) without consent of the victim, or (b) who knew
or should have known that the victim was physically or
mentally incapable of resisting or appraising the nature of
his or her conduct is guilty of sexual assault in either the
second degree or third degree.
28
State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).
29
See State v. Putz, 266 Neb. 37, 662 N.W.2d 606 (2003).
- 368 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
Sexual assault under § 28-320(3) is in the third degree “if the
actor shall not have caused serious personal injury to the vic-
tim.” Sexual contact is defined by § 28-318(5) as
the intentional touching of the victim’s sexual or intimate
parts or the intentional touching of the victim’s clothing
covering the immediate area of the victim’s sexual or
intimate parts. Sexual contact shall also mean the touch-
ing by the victim of the actor’s sexual or intimate parts
or the clothing covering the immediate area of the actor’s
sexual or intimate parts when such touching is intention-
ally caused by the actor. Sexual contact shall include
only such conduct which can be reasonably construed
as being for the purpose of sexual arousal or gratifica-
tion of either party. Sexual contact shall also include
the touching of a child with the actor’s sexual or inti-
mate parts on any part of the child’s body for purposes
of sexual assault of a child under sections 28-319.01
and 28-320.01
Comparing the elements of § 28-319 to § 28-320, it is pos-
sible to have sexual penetration under § 28-319 without having
sexual contact under § 28-320. As explained by the Court of
Appeals in State v. Schmidt,30 and reiterated by this court in
State v. Kibbee,31 third degree sexual assault requires that the
touching be for the purpose of sexual arousal or gratification,
while sexual assault in the first degree does not.
Jordan was adjudicated based on a finding that he had com-
mitted acts constituting third degree sexual assault. The petition
described only first degree sexual assault, and the State never
suggested any underlying law violation other than the lesser-
included offense of attempted first degree sexual assault.32
The court specifically found that the State failed to prove
beyond a reasonable doubt that Jordan committed first degree
30
State v. Schmidt, 5 Neb. Ct. App. 653, 562 N.W.2d 859 (1997).
31
State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).
32
See State v. James, supra note 14.
- 369 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
sexual assault as charged. Further, there is nothing in the court’s
order indicating a finding of acts constituting an attempt to
commit first degree sexual assault. Although at one point in its
order, the court found that the State met its burden of proving
“Third Degree Sexual Assault contrary to 28-318,” there is no
third degree sexual assault in § 28-318. And the court clearly
articulated that the elements of third degree sexual assault
found in § 28-320 had been demonstrated beyond a reasonable
doubt. The court found that the State had proved that Jordan
had “sexual contact” with the alleged victim, which “did not
cause serious personal injury.”
This adjudication on the grounds of third degree sexual
assault unfairly denied Jordan the opportunity to raise the
defense that the alleged touching could not be reasonably con-
strued as being for the purpose of sexual arousal or gratifica-
tion of either party. The adjudication for neither a law violation
specifically alleged in the petition nor a lesser-included offense
of the violation alleged in the petition was a “‘sheer denial of
due process’”33 constituting plain error.
The State concedes that it was plain error to adjudicate
Jordan on third degree sexual assault. It suggests, however,
that we may affirm the adjudication for the alternative reason
that Jordan committed the implicitly charged lesser-included
offense of attempted first degree assault. In essence, the State
asserts that the juvenile court erred in failing to adjudicate
Jordan on the grounds that he committed acts constituting
attempted first degree sexual assault.
[11] But the State did not appeal the juvenile court’s order.
Neb. Rev. Stat. § 43-2,106.01 (Reissue 2016) provides that an
appeal in any case determining delinquency issues in which
the juvenile has been placed legally in jeopardy may only be
taken by exception proceedings pursuant to Neb. Rev. Stat.
§§ 29-2317 to 29-2319 (Reissue 2016). The U.S. Supreme
33
Thornhill v. Alabama, supra note 18, 310 U.S. at 96.
- 370 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
Court held in Breed v. Jones34 that jeopardy attaches in juvenile
delinquency proceedings when the juvenile court, as the trier of
the facts, begins to hear evidence.
[12] Appeals under specific statutory provisions require
strict adherence to the statute’s procedures.35 Section 29-2317
requires, among other things, that the prosecuting attorney
appeal the county court judgment to the district court sitting as
an appellate court. We held in In re Interest of Sean H.36 that
any reference to the county court in §§ 29-2317 to 29-2319
applies to the separate juvenile court and that we lack jurisdic-
tion to consider the State’s exceptions that fail to fully comply
with the statutory procedures outlined in § 29-2317, as incor-
porated by § 43-2,106.01.
Despite the fact that Jordan was placed in jeopardy, the State
did not adhere to the requirements of § 29-2317. It cannot cir-
cumvent the requirements of § 29-2317 by appealing to our de
novo review.
The State misunderstands the nature of our de novo review
of a juvenile adjudication under § 43-247(2). In a review de
novo on the record, we reappraise the evidence as presented
by the record and reach our own independent conclusions with
respect to the matters at issue.37 It is still a review, however, in
which we determine whether to affirm or reverse the decision
of the lower court.
We may, where appropriate, affirm the right result reached
below for the wrong reason.38 But the focus of our review in
34
Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975).
35
In re Interest of Sean H., 271 Neb. 395, 711 N.W.2d 879 (2006).
36
Id. See, also, In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d
783 (2010); In re Interest of Lori S., 20 Neb. Ct. App. 152, 819 N.W.2d 736
(2012).
37
Guggenmos v. Guggenmos, 218 Neb. 746, 359 N.W.2d 87 (1984).
38
See, e.g., State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016); In
re Trust Created by Cease, 267 Neb. 753, 677 N.W.2d 495 (2004); Ochs
v. Makousky, 249 Neb. 960, 547 N.W.2d 136 (1996); Winfield v. CIGNA
Cos., 248 Neb. 24, 532 N.W.2d 284 (1995).
- 371 -
Nebraska Supreme Court A dvance Sheets
300 Nebraska R eports
IN RE INTEREST OF JORDAN B.
Cite as 300 Neb. 355
an adjudication for a law violation is on whether as a factual
matter the juvenile committed acts constituting a violation of
the underlying criminal statute.39
Leaving aside the double jeopardy implications of affirming
an adjudication on a lesser-included offense implicitly pre-
sented to but not found by the juvenile court,40 it is not within
the normal scope of our appellate review to make such a fac-
tual finding for the first time on appeal. We decline to do so
here. Although a trial court in a bench trial may in its discretion
consider all properly considered evidence relative to a lesser-
included offense where the State fails to demonstrate a prima
facie case on the crime charged,41 we are not a trial court. The
State cites to no authority supporting the proposition that an
appellate court, even under a de novo review, may consider
whether the juvenile has committed acts constituting a lesser-
included offense where the State failed to demonstrate a prima
facie case on the crime charged and the juvenile court did not
adjudicate the juvenile on the lesser-included offense.
[13] We lack jurisdiction to consider the State’s exceptions
that fail to fully comply with the statutory procedures outlined
in § 29-2317, as incorporated by § 43-2,106.01.
VI. CONCLUSION
Because the juvenile court adjudicated Jordan on grounds
for which he had no notice, in violation of the Due Process
Clauses of the U.S. and Nebraska Constitutions, we reverse,
and remand with directions to vacate the adjudication.
R eversed and remanded with directions.
39
See, e.g., In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606
(2007).
40
See, Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187
(1977); Breed v. Jones, supra note 34; U.S. v. Parker, 989 F.2d 948 (8th
Cir. 1993); State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000),
abrogated on other grounds, State v. Thomas, 262 Neb. 985, 637 N.W.2d
632 (2002). See, also, In re Interest of Rebecca B., supra note 36.
41
See State v. Keup, supra note 5.