K.J. v. Stewart

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
(Memorandum Web Opinion)
K.J. V. STEWART
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
K.J., APPELLEE,
V.
HENSLEY STEWART, APPELLANT.
Filed March 15, 2022. No. A-21-548.
Appeal from the District Court for Douglas County: THOMAS K. HARMON, Judge.
Affirmed.
Andrew J. Hilger, of Law Office of Andrew J. Hilger, for appellant.
No appearance for appellee.
MOORE, BISHOP, and ARTERBURN, Judges.
BISHOP, Judge.
INTRODUCTION
K.J. was granted a sexual assault protection order against Hensley Stewart by the Douglas
County District Court. Stewart appeals the court’s order, claiming (1) the court lacked subject
matter jurisdiction because the matter was heard by a county court judge when a district court
judge was requested, and (2) the evidence was insufficient to support the entry of the protection
order. We affirm.
BACKGROUND
On May 18, 2021, K.J. filed a “Petition and Affidavit to Obtain Sexual Assault Protection
Order” in the district court. She alleged that on May 11, she and Stewart were “leaving dinner to
go to his residence to talk about a dog-walking service that [she] recently started.” She wanted to
“meet his dog before [she] agreed to start walking her.” They entered Stewart’s vehicle and he
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began to drive. K.J. alleged that “[m]oments later . . . he reached over and placed his bare hand
under [her] dress” and “was groping [her] breasts and pinching [her] nipples.” This contact made
K.J. “extremely uncomfortable and intimidated.” She claimed that Stewart then said, “Remember
how I said I was Jamaican?” and thereafter “remove[d] his penis from his pants, gestured towards
it and told [her] to grab it.” She “was frozen in fear” and “complied,” “[f]earing [that] he would
retaliate physically if [she] didn’t.” Upon arriving at his residence, Stewart gave K.J. a “tour” and
“while showing [her] around [they] entered the bedroom.” Stewart told K.J. she should “try out
the bed.” She “initially refused,” but “on his insistance [sic],” she complied. K.J. claimed that
Stewart “proceeded to climb on top of [her]” and she “sternly said no.” Stewart “got off of” her
and they walked downstairs. Stewart told her that she “‘probably shouldn’t get into cars with
strangers.’” This caused K.J. to “fear for [her] safety[,]” and she “thought he was going to rape”
her. K.J. asked Stewart to take her back to her vehicle, and “he complied.” K.J. checked a box on
her petition requesting that a district court judge preside over this matter pursuant to Neb. Rev.
Stat. § 25-2740 (Cum. Supp. 2020).
An ex parte sexual assault protection order was entered later that same day, May 18, 2021,
precluding Stewart from coming into contact with K.J. On May 20, Stewart filed a request for a
hearing on the ex parte protection order.
At a hearing held on June 17, 2021, K.J. appeared pro se and Stewart appeared with
counsel. K.J. was sworn in and her “Petition and Affidavit to Obtain Sexual Assault Protection
Order” was marked and received into evidence without objection. K.J. then testified consistent
with the allegations set forth in her petition.
On cross-examination, K.J. testified that she was at a bar and Stewart was also there. K.J.
responded affirmatively when asked if she had ever met Stewart before that. K.J. had been at the
bar “for about an hour after walking another person’s dog.” She had “two or three” drinks, and
then “announced” she was going to dinner alone. Stewart, who was at another table, “asked if he
could join [her].” Between 7 p.m. and 8 p.m., they drove separate cars to a restaurant a few minutes
away. They dined for “about an hour,” and K.J. had a “double” bourbon during dinner. It was
“dark out” when they left, “so it must have been after nine.” She recalled that the drive to Stewart’s
residence took approximately 5 minutes. When asked if she ever said “no” when Stewart was
placing his hands under her dress or gesturing for her to grab his penis, K.J. responded, “No.”
When K.J. was asked if she ever asked Stewart to take her back to her car after they left the
restaurant and until they arrived at Stewart’s house, she responded, “No. I was afraid.” When asked
if Stewart had threatened her, K.J. responded, “No.” When asked if Stewart ever displayed any
“physical force” towards her, K.J. responded, “Only when he climbed on top of me, but it wasn’t
force; I just told him no, and he got off.” When K.J. laid on Stewart’s bed “willingly” after he
“insist[ed] the second time,” and Stewart “climbed on top” of her and she “said no,” K.J.
acknowledged that Stewart “got off of [her]” and “[a]fter a bottle of water,” took her back to her
car. She confirmed that she waited a week before filing her petition for a sexual assault protection
order, and she had no further contact or communication with Stewart after he drove her back to
the restaurant.
Stewart also testified regarding the events that occurred. He stated that May 11, 2021, was
the first and only time that he remembered meeting K.J. He was at the bar with a couple other
people when K.J. arrived. His recollection was that he had asked aloud if anyone wanted to “go
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eat,” and K.J. answered in the affirmative. They agreed on a restaurant and drove separately. K.J.
referenced her dog-walking service during their meal, and Stewart suggested K.J. might look after
his dog. K.J. asked to “meet the dog, see if the dog gets along with her, and know the layout of the
house.” Regarding the drive to his house, Stewart denied ever touching K.J.’s breasts or having
any other sexual contact, testifying that there was only “[i]ncidental touching” between the two,
such as unintentionally “brushing her hand” with his. Stewart also denied remarking that he was
Jamaican, stating that this was not something he would say because he is not Jamaican. He gets
“very upset” when people “try to taunt [him] with that,” as he makes it “very clear that [he is]
Grenadan.” He denied removing his penis from his pants during the car ride to his house.
When they arrived at his home, Stewart gave K.J. a tour. He did not remember K.J. sitting
on his bed, but he testified they “were both inebriated, to say the least” and that he did not know
if she sat on his bed or not. When asked if he had ever been on top of K.J. physically while she
was on his bed, Stewart responded, “Absolutely not.” Stewart drove K.J. back to the restaurant
between 8:20 and 8:30 p.m. According to Stewart, he received a text message from K.J. after
dropping her off at the restaurant. He offered a screenshot of that text message as exhibit 2. Exhibit
2 indicates that Stewart received a message at 8:25 p.m. from a person labeled as “Kyler” in his
cell phone, and the message read, “Hey it’s [k***], lerme [sic] know about dog watching!” We
note that K.J. testified regarding her cell phone number, and the phone number she confirmed as
hers matched the phone number listed on exhibit 2.
After taking the matter under advisement, the trial court entered an order on June 25, 2021.
The court determined that it had jurisdiction pursuant to § 25-2740 and Neb. Rev. Stat. § 28-311.11(Cum. Supp. 2020). Concerning the parties’ respective testimonies, the court found K.J.’s
testimony to be credible despite “a few inconsistencies,” but such “discrepancies [did] not
undermine her credibility” regarding her account of the events on May 11. In contrast, the court
found Stewart to be “not credible” and “simply . . . untruthful.” After setting forth the evidence
presented, the court concluded that K.J. had satisfied her burden of proof and accordingly ordered
the provisions of the ex parte sexual assault protection order entered on May 18, 2021, to remain
in effect for a period of 1 year.
Stewart appeals.
ASSIGNMENTS OF ERROR
Stewart claims (1) the “county court lacked subject matter jurisdiction because [K.J.] did
not request the county court to preside,” and (2) there was insufficient evidence to affirm the ex
parte sexual assault protection order.
STANDARD OF REVIEW
Subject matter jurisdiction is a question of law for the court, which requires an appellate
court to reach a conclusion independent of the lower court’s decision. Mahmood v. Mahmud, 279
Neb. 390, 778 N.W.2d 426 (2010).
A protection order is analogous to an injunction. Accordingly, the grant or denial of a
protection order is reviewed de novo on the record. Id. In such de novo review, an appellate court
reaches conclusions independent of the factual findings of the trial court. Torres v. Morales, 287
Neb. 587, 843 N.W.2d 805 (2014). However, where the credible evidence is in conflict on a
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material issue of fact, the appellate court considers and may give weight to the circumstances that
the trial judge heard and observed the witnesses and accepted one version of the facts rather than
another. Id.ANALYSIS
SUBJECT MATTER JURISDICTION
Stewart alleges that there was a lack of subject matter jurisdiction in this matter due to a
county court judge presiding over the proceeding despite K.J. checking the box on the form petition
requesting a district court judge. We note that the petition itself informs the applicant for the
protection order that the request for either a county court judge or a district court judge to preside
over the proceeding “may not be granted.” Nevertheless, Stewart alleges that § 25-2740 “states
that the county court is appointed to preside only if the petitioner requests it.” Brief for appellant
at 9. And since K.J. did not request a county court judge, Stewart contends the county court lacked
jurisdiction. We disagree.
Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the
general class or category to which the proceedings in question belong and to deal with the general
subject matter involved. Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018). Parties cannot confer
subject matter jurisdiction upon a judicial tribunal by either acquiescence or consent, nor may
subject matter jurisdiction be created by waiver, estoppel, consent, or conduct of the parties. Id. A
lack of subject matter jurisdiction may be raised at any time by any party or by the court sua sponte.
Id. A ruling made in the absence of subject matter jurisdiction is a nullity. Spady v. Spady, 284
Neb. 885, 824 N.W.2d 366 (2012). However, just as parties may not confer subject matter
jurisdiction on a court by consent, neither may parties deprive a court of subject matter jurisdiction
by their own agreement. Boyd v. Cook, supra. A court’s subject matter jurisdiction derives from
the constitutional and statutory sources of its authority, not the agreement of the litigants that
appear before it. Id.Section 28-311.11(1) states that “[a]ny victim of a sexual assault offense may file a petition
and affidavit for a sexual assault protection order.” Such petition “shall be filed with the clerk of
the district court and the proceeding may be heard by the county court or the district court as
provided in section 25-2740.” § 28-311.11(3). As relevant to this case, § 25-2740 provides in
pertinent part:
(1) For purposes of this section:
(a) Domestic relations matters means proceedings under . . . section[] 28-311.11
[regarding sexual assault protection orders] . . . .
....
(2) Except as provided in subsection (3) of this section, in domestic relations
matters, a party shall file his or her petition or complaint and all other court filings with the
clerk of the district court. The party shall state in the petition or complaint whether such
party requests that the proceeding be heard by a county court judge or by a district court
judge. If the party requests the case be heard by a county court judge, the county court
judge assigned to hear cases in the county in which the matter is filed at the time of the
hearing is deemed appointed by the district court and the consent of the county court judge
is not required. Such proceeding is considered a district court proceeding, even if heard
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by a county court judge, and an order or judgment of the county court in a domestic
relations matter has the force and effect of a district court judgment.
(Emphasis supplied.)
We do not read the plain language of § 25-2740(2) to result in the loss of subject matter
jurisdiction simply due to the assignment of a county court judge to a case when the petitioner
requested a district court judge. Although § 25-2740(2) permits a party to request a preference for
a county court judge or a district court judge, there is nothing in the statute that requires the district
court, where the matter is filed, to grant such a request. Nor is there any language in the statute
which suggests that the failure to grant the petitioner’s preference for a particular judge deprives
the court of subject matter jurisdiction. As set forth previously, a court’s subject matter jurisdiction
derives from the constitutional and statutory sources of its authority, not the actions of the litigants
that appear before it. See Boyd v. Cook, supra. Notably, Neb. Rev. Stat. § 24-517(7) (Cum. Supp.
2020) states that the county court shall have “[c]oncurrent original jurisdiction with the district
court in domestic relations matters as defined in section 25-2740,” which includes proceedings
under § 28-311.11. There is no question the county court has subject matter jurisdiction over such
domestic relations matters even though § 25-2740(2) requires that all such proceedings be
“considered a district court proceeding, even if heard by a county court judge.” Further, an “order
or judgment of the county court in a domestic relations matter has the force and effect of a district
court judgment.” § 25-2740(2).
Stewart also asserts, without elaborating, that it is “not apparent from the record on appeal
that the district and county courts issued an annual plan on case assignments in 2021” pursuant to
Neb. Rev. Stat. § 24-312(3) (Reissue 2016) and, as a result, “jurisdiction may not have been
invoked through that statute either.” Brief for appellant at 9. Section 24-312(3) grants county court
judges the authority to preside over domestic relations matters as defined by § 25-2740 pursuant
to an annual plan submitted to the Nebraska Supreme Court for the distribution of domestic
relations matters and Class IV felony cases between the district court and county court. Section
24-312(3) provides an alternative mechanism for domestic relations matters to be heard by a
county court judge separate from § 25-2740. See Mahmood v. Mahmud, supra (petitioner’s failure
to request county court judge under § 25-2740 in petition for domestic abuse protection order did
not deprive court of authority to subsequently issue harassment protection order; county court
judge had authority under § 24-312(3) to issue protection order in accordance with annual plan
submitted to Nebraska Supreme Court by district court and county court regarding domestic
relations matters). As Stewart observes, the record on appeal does not contain any annual plan
submitted by the district and county courts regarding the distribution of domestic relations matters.
Regardless, the district court’s order in this case states that jurisdiction arose through § 25-2740
and § 28-311.11, not § 24-312(3), and we have already concluded that there was subject matter
jurisdiction under those statutes.
Although the precise mechanism that caused this case to be assigned to a county court
judge is unclear on the record before us, the county court and district court had concurrent original
jurisdiction in this matter, and § 25-2740 does not grant a petitioner the authority to prevent either
court’s exercise of that original jurisdiction.
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SUFFICIENCY OF EVIDENCE
Stewart also claims that the evidence was insufficient to support the entry of the sexual
assault protection order in this case. We conclude otherwise.
A protection order is analogous to an injunction. Elstun v. Elstun, 257 Neb. 820, 600
N.W.2d 835 (1999). A party seeking an injunction must establish by a preponderance of the
evidence every controverted fact necessary to entitle the claimant to relief. See Abboud v.
Lakeview, Inc., 237 Neb. 326, 466 N.W.2d 442 (1991). Accordingly, a party seeking a sexual
assault protection order must prove a sexual assault offense by a preponderance of the evidence.
S.B. v. Pfeifler, 26 Neb. App. 448, 920 N.W.2d 851 (2018).
Section 28-311.11(14) defines a “sexual assault offense” as:
(a) Conduct amounting to sexual assault under section 28-319 or 28-320, sexual
abuse by a school employee under section 28-316.01, sexual assault of a child under section
28-319.01 or 28-320.01, or an attempt to commit any such offenses; or
(b) Subjecting or attempting to subject another person to sexual contact or sexual
penetration without his or her consent, as such terms are defined in section 28-318.
The trial court’s June 25, 2021, order boldfaced subpart (b) above and then proceeded to set forth
portions of Neb. Rev. Stat. § 28-318 (Cum. Supp. 2020). We likewise focus our attention on those
same statutory provisions. We will first address the evidence relevant to sexual contact, and we
will then address the evidence relevant to consent.
The portion of § 28-318(5) relevant to this case defines “[s]exual contact” as:
[T]he 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 [genital area, groin, inner thighs, buttocks, or breasts, see § 28-318(2)].
Sexual contact also means the touching 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 intentionally caused by the actor. Sexual contact includes only such
conduct which can be reasonably construed as being for the purpose of sexual arousal or
gratification of either party.
The evidence concerning the events on May 11, 2021, presented different versions of what took
place that evening. K.J. alleged that while in Stewart’s vehicle, he “was groping [her] breasts and
pinching [her] nipples” and that when told to do so by Stewart, she touched Stewart’s penis because
she was “frozen in fear” and she feared he would retaliate physically if she did not comply. K.J.
claimed that once in Stewart’s residence, he “proceeded to climb on top of [her]” when she was
on his bed. Conversely, Stewart testified that no sexual contact ever occurred, and the only contact
that happened between the two came about through “[i]ncidental touching” such as their hands
brushing one another’s.
Even on de novo review, where the credible evidence is in conflict on a material issue of
fact, the appellate court considers and may give weight to the circumstances that the trial judge
heard and observed the witnesses and accepted one version of the facts rather than another. Torres
v. Morales, 287 Neb. 587, 843 N.W.2d 805 (2014). We apply this standard in this case, and we
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give deference to the trial court’s acceptance of K.J.’s version of the facts. Notably, the court
specifically found that although K.J.’s testimony contained “a few inconsistencies, these
discrepancies do not undermine her credibility in the Court’s view regarding [Stewart’s] actions
against her.” The court added that K.J. “did not appear to be embellishing or exaggerating her
testimony and her demeanor during her testimony was genuinely distraught.” Regarding Stewart,
the court stated, “Sometimes, a party’s credibility is impaired by demeanor, inconsistent statements
and bias, and having heard the testimony of [Stewart] live, this Court finds it was not credible and
further finds him to simply be untruthful.” Giving deference to the court’s findings, we also
conclude that Stewart’s acts of grabbing K.J.’s breasts, having her touch his penis, and climbing
atop K.J. in bed could all reasonably be construed as being for the purpose of sexual arousal or
gratification. Accordingly, there is sufficient evidence to support the conclusion that the attempted
and actual sexual contacts described by K.J. occurred.
We next consider Stewart’s argument that even if sexual contact occurred, there was “no
evidence . . . presented showing that contact occurred without consent.” Brief for appellant at 12.
According to § 28-318(8), “[w]ithout consent” means:
(a)(i) The victim was compelled to submit due to the use of force or threat of force
or coercion, or (ii) the victim expressed a lack of consent through words, or (iii) the victim
expressed a lack of consent through conduct, or (iv) the consent, if any was actually given,
was the result of the actor’s deception as to the identity of the actor or the nature or purpose
of the act on the part of the actor;
(b) The victim need only resist, either verbally or physically, so as to make the
victim’s refusal to consent genuine and real and so as to reasonably make known to the
actor the victim’s refusal to consent; and
(c) A victim need not resist verbally or physically where it would be useless or
futile to do so.
The Nebraska Supreme Court has held that in order to determine whether sexual contact occurred
“‘without consent’ of the alleged victim, one of the four alternatives set forth in subsection (a) [of
§ 28-318(8)] must be shown.” State v. McCurdy, 301 Neb. 343, 355, 918 N.W.2d 292, 301 (2018).
Further, subsections (b) and (c) of § 28-318(8) “inform[] the nature of the proof necessary to show
one of the definitions set forth in subsection (a)” and do not “set[] forth additional independent
alternative means to show that sexual [contact] was ‘without consent.’” See State v. McCurdy, 301
Neb. at 355, 918 N.W.2d at 301.
In addition, § 28-318(9), as relevant to this case, defines “[f]orce or threat of force” as “the
use of physical force which overcomes the victim’s resistance or . . . the threat of physical force,
express or implied, against the victim . . . that places the victim in fear of death or in fear of serious
personal injury . . . .”
Stewart argues that with respect to the contacts that occurred in his vehicle, K.J.’s
testimony indicated that “no resistance existed for any physical force to overcome[,] and no
evidence existed of any threat of physical force or coercion” by Stewart. Brief for appellant at 14,
16. Stewart further asserts that K.J.’s testimony likewise indicated that she first expressed her lack
of consent only after Stewart proceeded to try to climb on top of her while in Stewart’s bed, to
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which Stewart complied. Stewart further notes that K.J. did not allege any further contact,
attempted or otherwise, after she told Stewart “no” when he tried to climb on top of her.
Having reviewed the record in this case, we conclude that subsections (ii), (iii), and (iv) of
§ 28-318(8)(a) are not applicable to the facts before this court. K.J.’s testimony does not indicate
that she expressed consent as a result of any deception by Stewart. Similarly, she testified that she
did not resist or otherwise verbally express her lack of consent to any sexual contact until Stewart
attempted to get on top of her in his bed, and he immediately removed himself from the bed and
her person upon her saying “no.” We conclude that this testimony indicates that she did not express
a lack of consent through words or conduct prior to her saying “no,” at which time, Stewart
complied with her denial of consent.
The question then is whether K.J. “was compelled to submit due to the use of force or threat
of force or coercion” as described by § 28-318(8)(a)(i). K.J.’s petition and testimony indicates that
Stewart grabbed her breasts while she was in his vehicle without warning or other indication of
intent while the vehicle was in motion. This contact caused her to feel “extremely uncomfortable
and intimidated,” and she described that her compliance and lack of resistance to this contact and
further sexual contacts was due to her being “frozen with fear” of possible physical retaliation if
she did not comply. K.J.’s perception of a threat of force was reasonable in light of the
circumstances, as such unsolicited sexual contact demonstrates a willingness to violate the victim’s
intimate person and potentially cause serious bodily harm. Giving deference to the trial court that
heard the parties’ testimonies, see Torres v. Morales, supra, we determine the evidence was
sufficient to prove by a preponderance of the evidence that K.J. was compelled to submit to these
sexual contacts due to an implied threat of force. Accordingly, we find the evidence supported the
entry of a sexual assault protection order.
CONCLUSION
For the reasons set forth above, we affirm the trial court’s entry of a sexual assault
protection order in this case.
AFFIRMED.
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