In re Interest of Gunner B.

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/04/2022 01:04 AM CDT
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697In re Interest of Gunner B., a child
under 18 years of age.
State of Nebraska, appellee, v.
Gunner B., appellant.
___ N.W.2d ___
Filed October 21, 2022. No. S-21-949.
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.
Appeal from the County Court for Otoe County: Robert B.
O’Neal, Judge. Affirmed.
Angela M. Minahan, of Reinsch, Slattery, Bear, Minahan &
Prickett, P.C., L.L.O., for appellant.
Jenniffer Panko-Rahe, Otoe County Attorney, and Seth W.
Hawkins for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
The State of Nebraska filed a petition against the appellant,
Gunner B., alleging that he was a child within the meaning
of Neb. Rev. Stat. § 43-247(1) (Reissue 2016). The petition
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697further alleged that Gunner had committed sexual assault in
the third degree against M.M. as that crime is set forth in Neb.
Rev. Stat. § 28-320(1) and (3) (Reissue 2016). Following an
adjudication hearing, the Otoe County Court, sitting as a juve-
nile court, entered an order finding that Gunner was a child
within the meaning of § 43-247(1). The case was set for dis-
position, and Gunner also moved for a new trial. The juvenile
court denied Gunner’s motion for new trial, and he appealed.
We moved this case to our docket. We affirm.
FACTUAL BACKGROUND
On September 22, 2020, the State filed a petition which
alleged that Gunner came within the meaning of § 43-247(1)
as a juvenile who has committed an act which would consti-
tute a misdemeanor, infraction, or violation of a city or village
ordinance and who was 11 years of age or older at the time
the act was committed. The petition also alleged that Gunner
had violated § 28-320(1) and (3) by subjecting M.M. to sexual
contact when he either knew or should have known that M.M.
was physically or mentally incapable of resisting or appraising
the nature of such conduct.
A hearing was held on the matter on September 16, 2021.
The evidence presented showed that M.M. is the daughter of
Tia T. and Nicholas M. M.M.’s precise date of birth is not
evident from the record. However, it appears that at the time
of the proceedings in this case, M.M. was 6 years old, but had
been 5 years old in July 2020, when the alleged event occurred.
Gunner is Tia’s half brother. Again, the record is not perfectly
clear, but it seems that Gunner was 15 years old at the time of
these events and was 16 years old at the time of the adjudica-
tion hearing.
On July 31, 2020, Nicholas arrived at the home of Cheryl S.,
the mother of both Gunner and Tia, to pick up M.M. After call-
ing out M.M.’s name and not getting a response, Nicholas went
into the basement to look for M.M. According to Nicholas,
Gunner was sitting on the floor with his legs over M.M.’s legs,
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697rubbing M.M.’s vagina with his fingers. According to Nicholas,
an erection was visible through Gunner’s shorts. Nicholas left
with M.M. and later took her to a hospital for a sexual assault
examination. The report showed no male DNA or semen, and
M.M. did not make any statements against Gunner at any point
during these proceedings.
Gunner testified and denied touching M.M. in a sexual man-
ner. Gunner claimed that M.M. was urinating into the floor
drain at the time Nicholas entered the basement. Gunner also
testified that Nicholas smelled of marijuana and was acting
erratically when he left the house with M.M.
Tia testified that she had been in a relationship with Nicholas
for about 9 years and that both she and Nicholas had dealt with
addiction prior to meeting each other. After they began dating,
Tia and Nicholas decided to get sober together. While the two
have largely refrained from any use of methamphetamine since
2013, they both continue to drink on occasion. According to
Tia, Nicholas had a brief relapse during their relationship and
admitted to smoking marijuana at his grandfather’s funeral.
The two had also previously shared a “THC . . . vaping pen”
with friends at a backyard get-together.
Cheryl testified that M.M. has a history of urinating into
the floor drain in the basement bathroom of Cheryl’s home
and that M.M. continued this behavior despite having been
reprimanded for doing so in the past. Cheryl testified that after
Nicholas left her home with M.M. on the day of the incident,
Gunner called to tell her what happened and explained that
M.M. had been urinating into the floor drain. Cheryl also testi-
fied that a few days prior to the July 2020 incident, Nicholas
had smelled of marijuana and Cheryl had asked him to leave
her home.
On September 28, 2021, the juvenile court issued an
order finding that Gunner was a child within the meaning
of § 43-247(1). The juvenile court scheduled a dispositional
hearing for December 2021. Gunner moved for a new trial
in October 2021, arguing that the decision was not sustained
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697by sufficient evidence. Gunner’s motion was denied by the
juvenile court on October 28. Gunner appeals from the court’s
adjudication order. 1 According to statements made at oral argu-
ment in this case, Gunner’s dispositional hearing had not yet
been held.
ASSIGNMENTS OF ERROR
Gunner has assigned, restated and renumbered, that the
juvenile court erred in finding that he subjected M.M. to sexual
contact because the evidence presented at trial was insufficient
to (1) prove that M.M. was mentally or physically incapable of
resisting or appraising the nature of the conduct or that Gunner
knew or should have known of that lack of capacity, (2) prove
sexual arousal or gratification of either party, and (3) support a
finding of guilt beyond a reasonable doubt.
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. 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
ANALYSIS
M.M.’s Mental or Physical Capacity
Gunner first assigns that the State failed to prove, beyond
a reasonable doubt, that he knew or should have known that
1
See In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004).
See, also, In re Interest of Jordan B., 300 Neb. 355, 913 N.W.2d 477(2018); In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012);
In re Interest of C.H., 277 Neb. 565, 763 N.W.2d 708 (2009); In re Interest
of Tyler F., 276 Neb. 527, 755 N.W.2d 360 (2008); In re Interest of Jeffrey
K., 273 Neb. 239, 728 N.W.2d 606 (2007); In re Interest of M.L.S., 234
Neb. 570, 452 N.W.2d 39 (1990).
2
In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (2018).
3
Id.- 701 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697M.M. was mentally or physically incapable of resisting or
appraising the nature of the conduct as set forth in § 28-320(1).
In In re Interest of K.M., 4 this court discussed the lack-of-
capacity defense under Neb. Rev. Stat. § 28-319(1)(b) (Reissue
2016) that a defendant “knew or should have known that the
victim was mentally or physically incapable of resisting or
appraising the nature of his or her conduct.” The language at
issue in In re Interest of K.M. is nearly identical to the lan-
guage of § 28-320(1)(b), which is at issue here.
In In re Interest of K.M., we held that
to prove a lack-of-capacity sexual assault on the basis of a
mental impairment . . . the State must prove beyond a rea-
sonable 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. 5
We further held that while expert testimony was admissible,
and might in some circumstances be necessary, it was not
required in each case. 6
The State argues that it presented sufficient evidence when it
produced evidence that M.M. was only 5 to 6 years old. While
acknowledging the absence of Nebraska case law holding that
“young age alone can satisfy the incapable element,” 7 the State
directs this court to decisions holding as much in other juris-
dictions, highlighting the Pennsylvania Supreme Court’s case
in Com. v. Rhodes. 8
In Rhodes, a Pennsylvania statute criminalized sexual
intercourse with any person “‘who is so mentally deranged
or defi­cient that such person is incapable of consent’” 9—which
4
Id.
5
Id. at 646, 910 N.W.2d at 89.
6
See In re Interest of K.M., supra note 2.
7
Brief for appellee at 11.
8
Com. v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986).
9
Id. at 544, 510 A.2d 1220.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697language is similar to Nebraska’s defense under § 28-320(1)(b)
as interpreted by this court in In re Interest of K.M. The
Pennsylvania Supreme Court found that age fit within this
definition and concluded that, as a matter of law, an 8-year-old
child was “‘so mentally deficient,’ . . . that she was incapable
of consenting to an act whose nature she could not appreciate
or comprehend.” 10
Other courts have come to conclusions similar to the one
made by the Rhodes court, finding that young children are
incapable of understanding the nature of sexual conduct as a
matter of law and, further, that the view that underage chil-
dren cannot legally consent to sex comes from the common
law. 11 Along the same lines, the U.S. Court of Appeals for the
Seventh Circuit has observed that “[c]ertainly, many children,
and indisputably all children under a certain age, are incapable
of appraising the nature of sexual conduct.” 12
We agree with this reasoning. We find that common sense
alone establishes that a child of 5 or 6 years of age is among
those that are “indisputably” under an age when children are
capable of appraising the nature of sexual conduct. 13 Moreover,
we note that the Legislature has generally acknowledged that
children under a certain age simply lack capacity to understand
or be responsible for their actions. 14 Accordingly, we hold that
the State adequately proved in this case that M.M. was men-
tally incapable of appraising the nature of the sexual conduct
at issue.
We need not, and therefore do not, establish in this case any
particular age under which a child is incapable of appraising
the nature of sexual conduct. Consequently, to the extent the
State attempts to establish in future cases that an older alleged
10
Id. at 559, 510 A.2d at 1228.
11
In re B.W., 313 S.W.3d 818 (2010) (collecting cases).
12
U.S. v. Walker, 931 F.3d 576, 582 (7th Cir. 2019) (emphasis supplied).
13
See id.14
See § 28-320(1)(b).
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697child victim was incapable of appraising the nature of sexual
conduct, it may be advisable to adduce evidence regarding the
development and understanding of that particular child.
We therefore turn to the question of whether Gunner knew
or should have known of this lack of capacity. Gunner testi-
fied that he knew M.M. as his niece, or as the daughter of
his sister, and his testimony confirmed that he was aware of
her age. Gunner also indicated that he had previously babysat
M.M. for Tia. When asked if he had touched M.M. in the way
alleged by the petition, Gunner replied that he would “never”
do that, suggesting that he was aware that such behavior was
not acceptable.
We therefore conclude that Gunner should have known that
M.M. was mentally incapable of resisting or appraising the
nature of Gunner’s conduct. This assignment of error is with-
out merit.
Evidence of Sexual Arousal
or Gratification
Gunner next assigns the evidence was insufficient to estab-
lish that he touched M.M. for the purpose of sexual arousal
or gratification. As used in § 28-320, sexual contact “includes
only such conduct which can be reasonably construed as being
for the purpose of sexual arousal or gratification of either
party.” 15
Gunner centers his argument on In re Interest of Kyle O., 16
a 2005 case wherein the Nebraska Court of Appeals explained
in detail what type of evidence or circumstances must be
considered by a court in determining whether a minor’s con-
duct can be reasonably construed as being for the purpose of
sexual arousal or gratification. Gunner contends that the State
failed to present any evidence related to Gunner’s age or matu-
rity and that thus, per the standards laid out in In re Interest
15
See Neb. Rev. Stat. § 28-318(5) (Supp. 2019) (emphasis supplied).
16
In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697of Kyle O., the court cannot have reasonably inferred that
Gunner’s actions were intended to sexually gratify or arouse
either M.M. or himself.
In In re Interest of Kyle O., a 14-year-old child, Kyle O.,
was adjudicated under § 43-247 for sexual contact with a
5-year-old child, S.S., in violation of § 28-320. 17 A witness
observed Kyle standing outside with S.S. and three other
children. Kyle then pulled down S.S.’ pants and grabbed S.S.’
penis to show the other children “‘how small it was.’” 18 At
trial, the witness was asked whether it looked like the contact
was for sexual gratification, and the witness responded that he
did not know. 19
On appeal, Kyle asserted that the evidence was insufficient
to establish whether sexual contact had occurred, because there
was no evidence that Kyle had touched S.S.’ penis for sexual
gratification. The Court of Appeals reversed the adjudication
and remanded the cause with directions to dismiss, finding
that there was no evidence that Kyle was sexually aroused and
that yet, “[i]t would be very easy to construe Kyle’s conduct
as being for the purpose of humiliating, bullying, or annoy-
ing S.S.” 20
We find In re Interest of Kyle O. inapplicable. In that case,
there was no evidence regarding sexual arousal. But here, the
State presented, and the court found credible, testimony from
Nicholas that Gunner had an erection visible through his cloth-
ing while touching M.M.’s vagina.
After observing the witnesses and hearing their testimony,
the juvenile court accepted Nicholas’ version of the facts over
Gunner’s version, a credibility determination to which we defer
on appeal. Nicholas’ testimony showed that Gunner was vis-
ibly aroused at the time he was touching M.M. As such, his
17
Id.
18
Id. at 63, 703 N.W.2d at 911.
19
In re Interest of Kyle O., supra note 16.
20
Id. at 72, 703 N.W.2d at 918.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697actions could reasonably be construed as being for his own
sexual arousal or gratification. We find this assignment of error
without merit.
Sufficiency of Evidence
Finally, Gunner assigns that even when viewed in a light
most favorable to the prosecution, the State’s evidence and
witnesses do not eliminate reasonable doubt as to whether
Gunner committed a sexual assault in the third degree against
M.M. because the State’s evidence either lacked credibility or
conflicted with other credible evidence presented by Gunner.
Gunner argues that Nicholas’ testimony, in which he stated
that he saw the assault occur, directly conflicts with Gunner’s
own testimony, where Gunner denied touching M.M. in a
sexual manner. Gunner also argues that Nicholas’ testimony
is in conflict with his own prior statements because Nicholas
testified that he saw Gunner touching M.M. in a sexual manner
and that an erection was visible through Gunner’s shorts at the
time. But when Nicholas texted Cheryl immediately following
the incident, he did not mention that Gunner had an erection
and also did not include this piece of information in his state-
ment to police.
The standard of review for juvenile cases is de novo on the
record; however, when evidence is in conflict, this court may
give weight to the fact that the lower court observed the wit-
nesses and accepted one version of the facts over the other. 21
Here, the juvenile court found that Nicholas’ testimony
regarding what happened and what he witnessed firsthand
was more credible than either Gunner’s version of events or
Cheryl’s testimony. Nicholas stated that he saw Gunner touch-
ing M.M.’s sexual or intimate parts. He testified to factors
that would indicate Gunner was committing this act for sexual
arousal or gratification, as evidenced by Nicholas’ testimony
that Gunner had a visible erection while touching M.M. While
21
See In re Interest of K.M., supra note 2.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697Nicholas’ testimony was directly contradicted by Gunner, the
juvenile court observed the witnesses and accepted one version
of the facts over the other. We give weight to the court’s obser-
vations and determinations, and when viewed in this light, the
evidence is sufficient to prove Gunner’s guilt beyond a reason-
able doubt. This assignment of error is without merit.
CONCLUSION
We affirm the decision of the juvenile court.
Affirmed.