Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Brauer

Supreme Court of Nebraska

December 27, 2013

State of Nebraska, appellee,
v.
Nathan J. Brauer, appellant.

Page 202

Evidence was sufficient to support finding that defendant's single " poke" of four-year-old child's penis over child's clothes constituted sexual contact, within meaning of third-degree sexual assault of child; defendant initially denied any contact whatsoever with child's penis, defendant eventually admitted that he " poked" penis, that he had " shared kiss and hug of some kind" with child in presence of child's parents and that it " made him feel really good," that kiss made him feel " spark," and that touch gave him " adrenaline-type rush," " impulse," and " sexual release of hormones." Neb. Rev. Stat. § 28-318(5)

Appeal from the District Court for Cheyenne County: DEREK C. WEIMER, Judge. Affirmed.

Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder, Chaloupka, Longoria & Kishiyama, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

Syllabus by the Court

1. Trial: Convictions. An appellate court will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support that conviction. Convictions:

2. Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence presented, which are within a fact finder's province for disposition. Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

3. Sexual Assault: Proof. Whether there is sufficient evidence to prove sexual arousal or gratification (which, by necessity, must generally be inferred from the surrounding circumstances), is extraordinarily fact driven.

Connolly, J.

SUMMARY

Following a bench trial, the district court found Nathan J. Brauer guilty of sexually assaulting a child in the third degree.[1] The record shows that Brauer poked a child in the penis, over his clothes, using two fingers. The touch was brief, and it happened a single time. The sole issue on appeal is whether there was sufficient evidence to conclude beyond a reasonable doubt that Brauer's touch was

Page 203

" sexual contact," [287 Neb. 82] which is limited to conduct that can be " reasonably construed as being for the purpose of sexual arousal or gratification." [2] Although some facts suggest an innocent explanation, there are sufficient other facts— most notably, Brauer's incriminating statements to law enforcement— which support the court's finding. We affirm.

BACKGROUND

FACTUAL AND PROCEDURAL HISTORY

Jeremy N. and Danae N. were long-time friends with Brauer. In the spring or early summer of 2011, Jeremy and Danae asked Brauer (who was not employed at the time) if he would like to watch their children, D.N. (about a year old) and J.N. (4 years old). Brauer agreed to do so, though the arrangement lasted only through June; at that point, Jeremy and Danae no longer needed Brauer to babysit their children.

During or soon after that time, J.N. made statements or asked questions that concerned Jeremy and Danae. At one point, while Jeremy and Danae were watching television, J.N. " turned around and ... said, mommy, daddy nobody is supposed to touch your butt or peenie, right?" Jeremy and Danae told him that " no, nobody is ever supposed to touch you. And [J.N.] let it go from there." Several weeks later, Brauer came by the house to see Jeremy's new camper, and J.N. told Jeremy that Brauer " made him feel funny, made him feel that [Brauer] wanted to touch [J.N.'s] butt or his peenie." After that, Jeremy and Danae did not allow Brauer to see J.N., though Brauer still came around the house.

During this time and into the early fall, Danae felt that there was something wrong with J.N. but she could not tell what it was. Doreen Schaub, J.N.'s daycare provider, had also noticed changes in J.N.'s behavior and was worried about him. On September 29, 2011, while at the daycare, Danae asked Schaub to help her try to discover what was wrong with J.N. Danae and Schaub met with J.N., and Danae asked him whether there was something wrong, and J.N. said no. Danae mentioned Brauer's name, and J.N. said that Brauer had not done anything [287 Neb. 83] to him. Schaub told J.N. that he had to tell the truth, and then J.N. said that Brauer had touched his " peepee." At that point, Danae became hysterical, and Schaub called Danae's mother to come to the daycare. Danae's mother called law enforcement, and an officer arrived shortly thereafter. The officer arranged for J.N. to be interviewed at 7:30 that night.

Lt. Keith A. Andrew, of the Sidney Police Department, an investigator in crimes against children, interviewed J.N. that night. Much of the interview consisted of Andrew's attempting to build a rapport with J.N. They discussed J.N.'s family, and Andrew emphasized that J.N. had done nothing wrong. At the beginning of the interview, Andrew tested J.N. to be sure that J.N. understood the difference between a truth and a lie. In the middle of the interview, Andrew had J.N. look at textbook pictures of a boy and of a man and identify what he called each of their parts. Andrew did this because " some children will identify like their penis or their groin area with multiple names[,] so we want to make sure that when they are telling us about their peenie or whatever that is[,] we know what part they are talking about."

Eventually, J.N. asked whether Brauer was in trouble, identified Brauer as his dad's " buddy," and explained that Brauer

Page 204

used to babysit J.N. In response to Andrew's questions, J.N. explained that Brauer had touched J.N.'s " peenie," but not his " bottom." J.N. explained that it had happened at Brauer's house, in the living room, after they had watched a movie. J.N. showed Andrew how Brauer had touched him, indicating that it was a two-finger tap or poke to his penis. J.N. consistently maintained that the touch happened only once and that he had all of his clothes on when it happened. J.N. said that he told Brauer " don't do that ever again" and Brauer apologized. Throughout the interview, J.N. was cheerful, cooperative, and unafraid.

Toward the end of October 2011, Andrew visited Brauer at his workplace. Andrew informed Brauer of the allegations, which Brauer denied. Andrew " asked him if there was ever any time he had touched [J.N.'s] penis area for any reason[,] including playing[,] and he said absolutely not." Andrew asked Brauer whether he would meet with him for some followup [287 Neb. 84] questions; Brauer agreed, and Andrew arranged for Brauer to come to the Nebraska State Patrol office for an interview on November 8.

During that interview, Brauer initially denied ever touching J.N. but eventually acknowledged the touch described above. Though Brauer denied ever having any explicit sexual contact (such as penetration or masturbation) with J.N., he did make several incriminating statements, which will be set forth in detail below. Law enforcement released Brauer following the interview, but arrested him a few hours later.

THE TRIAL

The State charged Brauer with sexually assaulting a child in the third degree. Brauer waived his right to a jury trial and elected to proceed with a bench trial. At trial, J.N., along with his parents, his daycare provider, and the various law enforcement officers involved in the investigation (chiefly, Andrew) testified to the above facts. J.N. also related a host of additional allegations which he had never expressed before in his interview with Andrew or (presumably) to his parents. For example, J.N. testified that Brauer " dragged" J.N. into the bathroom and locked him in there, that the touch occurred in the bathroom, and that Brauer used his " whole hand."

THE COURT'S ORDER

Based on the trial court's opinion, the court gave no credence to J.N.'s additional allegations at trial, but the court did find Brauer guilty. The court made extensive factual findings, including that the touch was a two-finger touch or poke, that it occurred over J.N.'s clothes, and that it was brief and occurred only once. The court noted that the only contested element of the crime was " whether the State submitted sufficient evidence to prove beyond a reasonable doubt that [Brauer's] touching of [J.N.] was ‘ sexual contact’ as that term is defined in the law." Brauer's touching of J.N. could be " sexual contact" only if it could be " reasonably construed as being for the purpose of sexual arousal or gratification of either party." [3]

[287 Neb. 85] In finding that the State had proved sexual contact, the court emphasized a number of facts. The court noted that, at first, Brauer persistently denied any contact with J.N., then said " maybe he got close once when he picked [J.N.] up when they were wrestling around," and then eventually admitted to touching J.N. The court also noted that Brauer apologized immediately to J.N. and that during Brauer's interview with law enforcement,

Page 205

Brauer made suicidal statements. Viewed together, the court saw this as evidence of consciousness of guilt.

The court also emphasized the context around the touch. The court noted that Brauer acknowledged sharing " a kiss and hug of some kind with [J.N.] prior to the touching and that it made him feel really good," though the court acknowledged that Brauer said that it made him feel good mentally, but not sexually. The court noted that the touch occurred when Brauer was alone and unsupervised with J.N. And the court noted that, based on J.N.'s behavioral changes, " [t]his incident was obviously weighing on [J.N.]" Finally, the court emphasized Brauer's incriminating statements during his interview with Andrew, which the court characterized as " admissions."

After rendering its verdict, the court sentenced Brauer to 2 to 3 years in prison.

ASSIGNMENT OF ERROR

Brauer assigns, restated, that the district court erred in finding that the State had proved beyond a reasonable doubt that Brauer's touch was " sexual contact."

STANDARD OF REVIEW

We will sustain a conviction in a bench trial of a criminal case if the properly admitted evidence, viewed and construed most favorably to the State, is sufficient to support that conviction.[4] In making this determination, we do not resolve conflicts in the evidence, pass on the credibility of witnesses, evaluate explanations, or reweigh the evidence [287 Neb. 86] presented, which are within a fact finder's province for disposition. [5] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [6]

ANALYSIS

Brauer's argument is simple: He argues that the evidence was insufficient to support the verdict. Specifically, Brauer argues that the evidence was insufficient to show, beyond a reasonable doubt, that Brauer's touching J.N. was " sexual contact," which is limited to conduct which can be " reasonably construed as being for the purpose of [Brauer's] sexual arousal or gratification" under § 28-318(5). In support of his argument, Brauer argues, among other things, that the touch was minor, fleeting, and over the clothes, and that there were no " indicia of sexual arousal." [7]

We recently addressed the same issue, though in a different context, in State v. Osborne. [8] There, we referenced the Nebraska Court of Appeals' opinion detailing the underlying facts and then concluded that affirmance was proper after " having reviewed the briefs and record and having heard oral arguments, and considering the relevant standard of review." [9] This case presents different and, qualitatively speaking, weaker facts than Osborne; but we do not bring up Osborne to compare facts. Its relevance here, beyond presenting the same issue, is as a recent example of the

Page 206

role the standard of review plays in criminal cases at the appellate level.

There is an appellate maxim that " standards of review can be a party's best friend or they can be a party's worst enemy." That maxim rings true today, and to Brauer's detriment. The record could very well support inferences other than those drawn by the trial court. But under our standard of review, we [287 Neb. 87] do not resolve conflicts in the evidence, reweigh the evidence, assess witness credibility, or evaluate explanations. Instead, we ask only whether— viewing the evidence in the light most favorable to the prosecution— any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. It could.

The State charged Brauer with sexually assaulting a child in the third degree. Section 28-320.01(1) explains that " [a] person commits sexual assault of a child in the second or third degree if he or she subjects another person fourteen years of age or younger to sexual contact and the actor is at least nineteen years of age or older." The crime is in the third degree if the " actor does not cause serious personal injury to the victim," [10] which is the case here.

Because the ages of the relevant persons were undisputed, as was the existence of the touch itself, the only issue was whether the touch was " sexual contact" under § 28-318(5). Brauer did not dispute that he intentionally touched J.N.'s " clothing covering the immediate area of [J.N.'s] sexual or intimate parts." The only question was whether Brauer's touch could be " reasonably construed as being for the purpose of [Brauer's] sexual arousal or gratification." After reviewing the record, we conclude that there was sufficient evidence to support the trial court's finding beyond a reasonable doubt that Brauer's touch was " sexual contact."

As noted by the trial court, Brauer initially (and persistently) denied ever touching J.N. in or around his crotch for any reason, even accidentally. Then, when confronted by law enforcement officers, he admitted that he " had come in contact with [J.N.] on the upper leg area in the vicinity of the genitals." And during his interview with Andrew, Brauer eventually admitted that he had " poked" J.N. in the penis. The transcript of Brauer's interview with Andrew also reveals that Brauer contemplated suicide (though he assured Andrew he was not going to follow through), making statements like, " I'm going to go blow my head off." Brauer's initial refusal to acknowledge the touch until repeatedly confronted by law enforcement [287 Neb. 88] officers, along with his clear understanding that what he had done was wrong, could allow the trial court to conclude that this was more than simply an innocent touch.

Other facts also support concluding that Brauer touched J.N. for the purpose of sexual arousal or gratification. Brauer acknowledged that, with Jeremy and Danae present, he had shared " a kiss and hug of some kind with [J.N.] prior to the touching and that it made him feel really good," though Brauer said it made him feel good mentally, not sexually. In speaking with one investigator, Brauer said the kiss made him feel a " spark." Most damning, however, are Brauer's statements during Andrew's interview with Brauer describing his touching J.N. We set out the critical part of the interview below:

LT. KEITH ANDREW: Okay. Tell me what— show me what happened. If this is his groin area, how did you touch him? Say this is— this is his groin area. It's my knee, okay. I'm not big into

Page 207

touches, but go ahead and show me one time. Show me ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.