In re Interest of K.M.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/04/2018 08:09 AM CDT
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF K.M.
Cite as 299 Neb. 636In re I nterest of
K.M., a child
under18 years of age.
State of Nebraska, appellee,
v. K.M., appellant.
___ N.W.2d ___
Filed April 20, 2018. No. S-16-1205.
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. Sexual Assault. A 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.
3. ____. To render an individual incapable to consent to sexual conduct, a
mental impairment must be severe. A person in this category is treated
as equivalent to a severely intoxicated or an unconscious person. Not
every mental challenge or impairment is so severe that the person lacks
the capacity to consent.
4. ____. Lack-of-capacity sexual assault under Neb. Rev. Stat.
§ 28-319(1)(b) (Reissue 2016) requires on the part of the victim “a
significant abnormality, such as severe intoxication or other substantial
mental or physical impairment.”
5. Sexual Assault: Proof. To prove a lack-of-capacity sexual assault on
the basis of a mental impairment, under Neb. Rev. Stat. § 28-319(1)(b)
(Reissue 2016), the State must prove beyond a reasonable doubt that the
victim’s impairment was so severe that he or she was mentally incapable
of resisting or mentally incapable of appraising the nature of the sexual
conduct with the alleged perpetrator.
6. Sexual Assault: Evidence: Testimony. Under Neb. Rev. Stat.
§ 28-319(1)(b) (Reissue 2016), while expert testimony as to a victim’s
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
IN RE INTEREST OF K.M.
Cite as 299 Neb. 636mental incapacity may be probative, expert testimony is not required in
every case of lack-of-capacity sexual assault based on the victim’s men-
tal illness or impairment.
Petition for further review from the Court of Appeals, Inbody,
Pirtle, and R iedmann, Judges, on appeal thereto from the
Separate Juvenile Court of Douglas County, Vernon Daniels,
Judge. Judgment of Court of Appeals affirmed.
Thomas C. Riley, Douglas County Public Defender, and
Timothy F. Shanahan for appellant.
Donald W. Kleine, Douglas County Attorney, Anthony
M. Hernandez, and Laura E. Lemoine, Senior Certified Law
Student, for appellee.
Heavican, C.J., Cassel, Stacy, and Funke, JJ., and Colborn
and Samson, District Judges.
Funke, J.
I. NATURE OF CASE
The separate juvenile court of Douglas County adjudicated
K.M. as being a “juvenile who has committed an act which
would constitute a felony under the laws of this state”1 by
committing first degree sexual assault, having “subject[ed]
another person to sexual penetration [and] who knew or
should have known that the victim was mentally or physi-
cally incapable of resisting or appraising the nature of his or
her conduct.”2
On appeal, the Nebraska Court of Appeals reversed the
adjudication, finding insufficient evidence to uphold K.M.’s
adjudication by proof beyond a reasonable doubt.3 The State
1
Neb. Rev. Stat. § 43-247(2) (Reissue 2016).
2
Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016).
3
In re Interest of Kalen M., No. A-16-1205, 2017 WL 4675799 (Neb. App.
Oct. 17, 2017) (selected for posting to court website).
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IN RE INTEREST OF K.M.
Cite as 299 Neb. 636petitioned for further review, which we granted. Because the
State failed to prove beyond a reasonable doubt that K.M.
knew or should have known that D.F., the alleged victim, “was
mentally or physically incapable of resisting or appraising the
nature of the conduct,” we agree with the Court of Appeals and
affirm its ruling.
II. BACKGROUND
Omaha Police Department Det. Kristine Love received a
report in early 2016 from Child Protective Services that a
school teacher had reported D.F.’s report of sexual contact with
K.M. while at D.F.’s home. D.F. has Asperger syndrome.4 Love
observed a forensic interview that was conducted with D.F. at
Project Harmony, a child advocacy center, and then conducted
her own interview with D.F.
After interviewing D.F., Love contacted K.M. at his school
and asked him to speak with her in an interview at police head-
quarters, which K.M. agreed to do. Upon the completion of the
interview, Love arrested K.M. for first degree sexual assault
based on statements he made during the interview. K.M. turned
13 years old shortly after the alleged incident but before being
interviewed by Love; D.F. was 12 years old.
The Douglas County Attorney filed a petition to adjudicate
K.M. under § 43-247(2). The petition alleged that K.M. com-
mitted conduct that would constitute first degree sexual assault
under § 28-319(1)(b) based on D.F.’s mental impairment. K.M.
denied the allegation in the petition.
1. A djudication Hearing
On November 4, 2016, an adjudication hearing was held
before the separate juvenile court of Douglas County. Because
4
See Asperger Syndrome, Autism Speaks, https://www.autismspeaks.org/
what-autism/asperger-syndrome (last visited Apr. 11, 2018) (indicating
that what was previously diagnosed as Asperger syndrome has now been
categorized as autism spectrum disorder since the publication of the
DSM-5 diagnostic manual in 2013).
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IN RE INTEREST OF K.M.
Cite as 299 Neb. 636K.M. denied the petition’s allegation, the State had the burden
to prove his guilt by proof beyond a reasonable doubt.5
(a) Video Interview
Love testified about the investigation and her interview
with K.M. A video recording of the interview was entered
into evidence.
The video shows that K.M. waived his Miranda 6 rights
at the beginning of the interview. Love advised K.M. of the
allegations made by D.F., which K.M. initially denied. K.M.
stated that he would never do that to D.F. because it would
be wrong, explaining that D.F. has autism and does not know
right from wrong and that it would be as if K.M. were cor-
rupting him. After approximately 40 minutes, K.M. admitted
that his penis may have penetrated D.F.’s anus approximately
2 centimeters.
(b) Other Evidence
The State also presented the testimony of Sarah Cleaver, a
pediatric nurse practitioner at Project Harmony. Cleaver per-
formed a medical examination of D.F. at Project Harmony’s
medical clinic and authored a report of her examination of
D.F. In doing so, she relied on her examination; a medical his-
tory from D.F.’s mother, which included the fact that D.F. has
Asperger syndrome and attention deficit hyperactivity disorder;
and D.F.’s statements in the Child Protective Services report
and the Project Harmony forensic interview. Cleaver’s diagno-
sis of D.F. was suspected child sexual abuse, constipation, and
anal fissures. She attributed D.F.’s anal fissures to his history
of constipation, but said that they could have also been caused
by the penile-anal penetration that he reported.
The court admitted Cleaver’s report, which included D.F.’s
allegations from the Child Protective Services report and
5
Neb. Rev. Stat. § 43-279(2) (Reissue 2016).
6
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694(1966).
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IN RE INTEREST OF K.M.
Cite as 299 Neb. 636Cleaver’s examination, over K.M.’s objection on hearsay and
the Confrontation Clause. The court overruled the objections
on the basis of the hearsay exception for statements made for
the purpose of medical diagnosis.
On cross-examination, Cleaver said that she thought the
most likely explanation for D.F.’s anal fissures was his con-
stipation, as D.F. reported to her he had a large stool and then
his bottom began to bleed. She agreed that she could not reach
any conclusion about sexual assault from the anal fissures.
She did not give any testimony or opinion about D.F.’s mental
condition beyond stating that this diagnosis had been reported
to her.
Neither D.F. nor K.M. testified at the hearing. And no spe-
cific evidence about D.F.’s Asperger syndrome diagnosis or
mental condition was offered at the hearing.
The juvenile court issued an order adjudicating K.M. under
§ 43-247(2), finding the State had proved its case by proof
beyond a reasonable doubt. K.M. appealed.
2. Court of A ppeals’ Opinion
On appeal to the Court of Appeals, K.M.’s sole assignment
of error was that “[t]he Juvenile Court erred in finding that
[K.M.] subjected D.F. . . . to sexual contact because the evi-
dence presented at trial was insufficient to support a finding
of guilt.”
The Court of Appeals concluded that the State had proved
beyond a reasonable doubt that K.M. subjected D.F. to sexual
penetration, relying on K.M.’s confession in the interview.
But it concluded that the State had failed to prove that K.M.
“knew or should have known that [D.F.] was mentally or
physically incapable of resisting or appraising the nature of
his conduct.”7
The Court of Appeals said that to prove a sexual assault
under § 28-319(1)(b), the State must establish (1) a significant
7
In re Interest of Kalen M., supra note 3, 2017 WL 4675799 at *2.
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IN RE INTEREST OF K.M.
Cite as 299 Neb. 636abnormality, such as severe intoxication or other substantial
mental or physical impairment, on the part of the alleged vic-
tim and (2) knowledge of the abnormality on the part of the
alleged attacker.
The court further said:
[T]here was no evidence presented by the State regarding
where [D.F.’s] autism fell on the autism spectrum, whether
[D.F.’s] autism would render [him] incapable of resisting
or appraising the nature of [K.M.’s] conduct, and whether
[K.M.] knew or should have known of [D.F.’s] inability to
resist or appraise the nature of [K.M.’s] conduct.8
It concluded that the State had failed to prove its allegation
beyond a reasonable doubt, because it did not present any evi-
dence of D.F.’s inability to resist or appraise the nature of his
conduct, beyond reports that D.F. had autism. As a result, the
Court of Appeals reversed the adjudication.
The State petitioned for further review, which we granted.
III. ASSIGNMENTS OF ERROR
The State argues that the Court of Appeals “erred in deter-
mining that the State failed to adduce sufficient evidence that
[K.M.] knew or should have known that [D.F.] was mentally
or physically incapable of resisting or appraising the nature of
his conduct.”
IV. 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.9 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.10
8
Id.9
In re Interest of Elainna R., 298 Neb. 436, 904 N.W.2d 689 (2017).
10
In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).
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IN RE INTEREST OF K.M.
Cite as 299 Neb. 636V. ANALYSIS
Before we reach the merits of this matter, we will address
a proposition of law articulated by the State during oral argu-
ment. The State asserted that on a claim of insufficiency of the
evidence, an appellate court will not set aside a guilty verdict
in a juvenile case where such verdict is supported by relevant
evidence. The State seems to be importing into juvenile matters
a standard of review applicable in adult criminal matters.
It is correct that Nebraska appellate courts have imported
criminal standards into juvenile cases on other instances. For
example, we have applied the same standard of review for a
motion to suppress filed by a juvenile in juvenile court.11 In
ordering restitution, juvenile courts are to consider factors
similar to those utilized in the criminal restitution statute.12
The Court of Appeals has applied the criminal standard for
withdrawal of a plea in the context of a request to withdraw an
admission in a juvenile proceeding.13
However, in only one juvenile matter, In re Interest of
McManaman,14 did we apply a standard of review applica-
ble in adult criminal proceedings. In that matter, we stated
that we
“‘will not interfere with a verdict of guilty based on con-
flicting evidence unless, as a matter of law, the evidence
is so lacking in probative force that it is insufficient to
support the finding of guilt beyond a reasonable doubt. .
. . A guilty verdict of the fact finder in a criminal case
must be sustained if there is substantial evidence, taking
the view most favorable to the State, to support it.’”15
Instead, in juvenile matters, we have routinely held that
our review is de novo on the record and that an appellate
11
See In re Interest of Miah S., 290 Neb. 607, 861 N.W.2d 406 (2015).
12
In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007).
13
In re Interest of Justin V., 18 Neb. App. 960, 797 N.W.2d 755 (2011).
14
In re Interest of McManaman, 222 Neb. 263, 383 N.W.2d 45 (1986).
15
Id. at 265-66, 383 N.W.2d at 47.
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IN RE INTEREST OF K.M.
Cite as 299 Neb. 636court is required to reach a conclusion independent of the
lower courts’ findings.16 We find this de novo standard of
review to be most applicable to juvenile matters. As a result,
we take this opportunity to disapprove of our holding in In
re Interest of McManaman as it relates to importing into a
juvenile matter the standard of review used in adult criminal
proceedings.
In turning to the merits of the instant matter, § 43-247
defines and delimits the boundaries of the jurisdiction of
juvenile courts. Under § 43-247(2), juvenile courts may exer-
cise jurisdiction over “[a]ny juvenile who has committed an
act which would constitute a felony under the laws of this
state . . . .”
When the State, as it did here, alleges that a juvenile has
committed a felony and is thus subject to juvenile court juris-
diction under § 43-247(2), the juvenile is entitled to contest
the allegations in an adjudication hearing.17 Where the juvenile
denies the allegations, the State must prove its case by proof
beyond a reasonable doubt.18
The felony that the State alleges K.M. committed constitutes
first degree sexual assault under § 28-319, which provides:
(1) Any person who subjects another person to sexual
penetration (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.
The State did not allege that K.M.’s act of sexually pen-
etrating D.F. was “without the consent of the victim,” under
§ 28-319(1)(a). Rather, it argues that K.M.’s conduct violated
16
See In re Interest of Elainna R., supra note 9.
17
See § 43-279.
18
§ 43-279(2).
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IN RE INTEREST OF K.M.
Cite as 299 Neb. 636§ 28-319(1)(b), because he “knew or should have known that
[D.F.] was mentally or physically incapable of resisting or
appraising the nature of his or her conduct.”19
[2] A 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.20 Thus, in this mat-
ter, the State was required to prove beyond a reasonable doubt
that D.F. lacked the capacity to consent to the sexual penetra-
tion and that K.M. knew or should have known that D.F. lacked
the capacity to consent.21
While K.M. acknowledged that D.F. was autistic and that
he did not know right from wrong, such language reflects our
application of the M’Naghten rule—to determine whether a
person is not criminally responsible for his or her actions22—
not to determine whether a victim had the capacity to consent.
Instead, the law of sexual assault has traditionally recognized
certain circumstances under which an individual lacks the
capacity to consent to sexual conduct and where sexual con-
tact with that person thus constitutes sexual assault: where
the victim is severely intoxicated—whether the intoxicant be
administered by the defendant, another, or self-administered23;
where the victim is unconscious24; and where the victim is
“mentally incompetent.”25
19
Brief on petition for further review for appellee at 3.
20
State v. Rossbach, 264 Neb. 563, 650 N.W.2d 242 (2002).
21
See id.22
See 9 A.L.R.4th 526 (1981).
23
Wayne R. LaFave, Criminal Law §§ 17.3(e) and 17.4(b) (6th ed. 2017).
See, also, State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005)
(intoxication); State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004);
Rossbach, supra note 20; 3 Charles E. Torcia, Wharton’s Criminal Law
§ 282 (15th ed. 1995).
24
LaFave, supra note 23. See, also, Freeman, supra note 23; State v.
Moeller, 1 Neb. App. 1046, 510 N.W.2d 500 (1993).
25
LaFave, supra note 23, § 17.4(b) at 1151.
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IN RE INTEREST OF K.M.
Cite as 299 Neb. 636We address in turn two issues regarding the requisite proof
for a lack-of-capacity sexual assault under § 28-319(1)(b)
based on a victim’s mental impairment: the type or severity of
mental impairment required for an individual to lack the capac-
ity to consent, and whether expert testimony is necessary to
prove a lack of capacity based on mental impairment.
1. Severity of Mental
Impairment
[3,4] To render an individual incapable to consent to sexual
conduct, a mental impairment must be severe.26 A person in
this category is treated as equivalent to a severely intoxicated
or an unconscious person.27 Thus, not every mental challenge
or impairment is so severe that the person lacks the capacity to
consent.28 We have said lack-of-capacity sexual assault under
§ 28-319(1)(b) requires on the part of the victim “a significant
abnormality, such as severe intoxication or other substantial
mental or physical impairment.”29
In Reavis v. Slominski,30 this court considered a civil tort
claim for battery based on an alleged sexual assault, but relied
on and discussed Nebraska’s criminal sexual assault statutes
in considering the issue of consent. The court was divided
and issued four separate opinions, with none commanding a
majority.31 However, some of the opinions in Reavis are help-
ful here.
The lead opinion by Justice Lanphier discussed the approach
taken by other jurisdictions when considering consent and
said that “[i]t would appear that issue of effective consent
to sexual contact is generally only raised when the victim
26
Rossbach, supra note 20.
27
LaFave, supra note 23.
28
See id.
29
Rossbach, supra note 20, 264 Neb. at 572, 650 N.W.2d at 250.
30
Reavis v. Slominski, 250 Neb. 711, 551 N.W.2d 528 (1996).
31
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IN RE INTEREST OF K.M.
Cite as 299 Neb. 636suffers from an extreme mental handicap or deficiency.”32 One
of the dissenting opinions, written by Justice Caporale and
joined by Justice Fahrnbruch, said that “other jurisdictions
have concluded that one has such capacity if one understands
and appreciates the nature of the act of sexual intercourse, its
character, and the probable or natural consequences which may
attend it.”33 While the opinions in that case sharply disagreed
on some aspects of the law of consent, there was a general
consensus that to establish a lack of consent based on a mental
impairment, the impairment must be severe.34
The Kansas Court of Appeals has articulated the following
standard: “If an individual can comprehend the sexual nature
of the proposed act, can understand he or she has the right to
refuse to participate, and possesses a rudimentary grasp of the
possible results arising from participation in the act, he or she
has the capacity to consent.”35
[5] Thus, we hold that to prove a lack-of-capacity sex-
ual assault on the basis of a mental impairment, under
§ 28-319(1)(b), the State must prove beyond a reasonable
doubt that the victim’s impairment was so severe that he or
she was “mentally . . . incapable of resisting” or “mentally . . .
incapable of . . . appraising the nature of” the sexual conduct
with the alleged perpetrator.
2. Necessity of Expert
Testimony
Having found that proving lack-of-capacity sexual assault
based on a mental impairment requires the State to prove that
the victim’s impairment is so severe that he or she is mentally
unable to resist or understand the nature of the sexual act, we
32
Id. at 722, 551 N.W.2d at 538 (Lanphier, J.).
33
Id. at 743, 551 N.W.2d at 549 (Caporale, J., dissenting; Fahrnbruch, J.,
joins). See, also, State v. Johnson, 155 Ariz. 23, 745 P.2d 81 (1987).
34
See, generally, Reavis, supra note 30.
35
State v. Ice, 27 Kan. App. 2d 1, 5, 997 P.2d 737, 740 (2000).
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IN RE INTEREST OF K.M.
Cite as 299 Neb. 636must also determine whether expert testimony is required to
establish this fact.
Under Neb. Rev. Stat. § 27-702 (Reissue 2016), if scientific,
technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue,
a witness qualified as an expert by knowledge, skill, experi-
ence, training, or education, may testify thereto in the form of
an opinion or otherwise.
However, when an expert’s opinion on a disputed issue is a
conclusion which may be deduced equally as well by the trier
of fact with sufficient evidence on the issue, the expert’s opin-
ion is superfluous and does not assist the trier in understanding
the evidence or determining a factual issue.36
In State v. Collins, the Court of Appeals considered this
question and concluded that “[w]hether expert testimony as to
a victim’s mental or physical capacity to resist or to appraise
the nature of the perpetrator’s conduct is indispensable in a
prosecution under § 28-319(1)(b) must be approached on a
case-by-case basis.”37
Several other jurisdictions have also considered the need for
expert testimony and have concluded that a lay juror is able to
assess the extent of a victim’s mental capacity in the context of
lack-of-capacity sexual assaults.38
A person’s capacity to understand something is a factual
issue for the jury and, like other facts, may properly be estab-
lished by circumstantial evidence.39 More particularly, evidence
explaining what a person knows and how the person came to
know it may well give rise to an inference of incapacity.
36
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
37
State v. Collins, 7 Neb. App. 187, 202, 583 N.W.2d 341, 350-51 (1998).
38
See, Jackson v. State, 890 P.2d 587 (Alaska App. 1995); State v. Summers,
70 Wash. App. 424, 853 P.2d 953 (1993); State v. Wallin, 52 Kan. App. 2d
256, 366 P.2d 651 (2016); Fuentes v. State, 454 Md. 296, 164 A.3d 265(2017); State v. Hunt, 365 N.C. 432, 722 S.E.2d 484 (2012).
39
Jackson, supra note 38.
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IN RE INTEREST OF K.M.
Cite as 299 Neb. 636While expert testimony as to a victim’s mental incapac-
ity may be probative, and might be required in some factual
situations, there is no basis for requiring the State to estab-
lish mental incapacity by expert testimony in every case.40
Evidence which establishes a victim’s inability to understand
the nature and consequences of sexual intercourse is not the
kind of technical evidence which requires medical testimony
to decipher. Unlike evidence of medical or legal malpractice,
or the functions of technical equipment, a witness’ compre-
hension of the basic consequences of his or her actions may be
proved or disproved from his or her testimony and testimony
as to behavior.
[6] As a result, we conclude that while expert testimony as
to a victim’s mental incapacity may be probative, expert testi-
mony is not required in every case of lack-of-capacity sexual
assault based on the victim’s mental illness or impairment.
3. A pplication
The State’s evidence that D.F. lacked the capacity to con-
sent to the sexual penetration by K.M. is reducible to a sec-
ondhand report that D.F. had been diagnosed with Asperger
syndrome. The State’s evidentiary showing was insufficient
to prove beyond a reasonable doubt that D.F. was, in fact,
incapable of resisting or appraising the nature of the sex-
ual conduct.
The State presented no evidence about D.F.’s diagnosis.
It presented no expert testimony on the nature of Asperger
syndrome or how it affects an individual’s ability to resist or
understand the nature of sexual conduct. D.F. did not testify,
and the trier of fact was unable to judge D.F.’s level of mental
impairment. No evidence was given about D.F.’s own abil-
ity to resist or understand sexual acts. The State apparently
relies on the fact of the reported diagnosis and the testimony
of K.M.
40
Summers, supra note 38.
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Cite as 299 Neb. 636Given the dearth of evidence regarding D.F.’s mental ability,
the State understandably focused its arguments in its appel-
late brief on the evidence that the penetration occurred and on
K.M.’s statements showing that he knew that D.F. had autism
and was “mentally slower than where he should be.”41 But the
occurrence of the penetration is not the primary issue in dis-
pute. And K.M.’s knowledge of D.F.’s autism does not estab-
lish that D.F.’s mental condition was so severe that he lacked
the capacity to consent.
Moreover, K.M.’s statement that D.F. has autism and does
not know right from wrong fails to show that D.F. lacked the
capacity to consent. A 13-year-old boy’s comment bearing on
the quality of D.F.’s moral reasoning does nothing to show that
D.F. suffered from a mental impairment so severe that he was
unable to resist or understand sexual conduct. Nor is K.M.’s
comment about how it would be wrong for him to engage in
sexual conduct with D.F. of any help to the State. The test for
a lack-of-capacity sexual assault is not one of the defendant’s
morality, but of the victim’s ability to resist or appraise the
nature of the sexual conduct.
The State bears the burden, when proving sexual assault
based on the victim’s lack of capacity, that the victim actually
lacked the capacity to consent. It has not done so here.
VI. CONCLUSION
For the reasons set forth herein, we affirm the Court of
Appeals’ reversal of the juvenile court’s adjudication.
A ffirmed.
Miller-Lerman, J., participating on briefs.
Wright, J., not participating.
41
Brief for appellee at 14.