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In re K.M.

Supreme Court of Nebraska

April 20, 2018

In re Interest of K.M., a child under 18 years of age. State of Nebraska, appellee.
v.
K.M., appellant.

         1. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently 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 [299 Neb. 637] mental incapacity may be probative, expert testimony is not required in every case of lack-of-capacity sexual assault based on the victim's mental illness or impairment.

          Petition for further review from the Court of Appeals, Inbody, Pirtle, and Riedmann, 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 physically 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 [299 Neb. 638] petitioned 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 headquarters, 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. committed 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. Adjudication Hearing

         On November 4, 2016, an adjudication hearing was held before the separate juvenile court of Douglas County. Because [299 Neb. 639] K.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 corrupting 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 performed 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 history 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 diagnosis 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 [299 Neb. 640] Cleaver'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 constipation, 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 specific 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 Appeals' 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 evidence 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 [299 Neb. 641] abnormality, such as severe intoxication or other substantial mental or physical impairment, on the part of the alleged victim 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 evidence of D.F.'s inability to resist or appraise the nature of his conduct, beyond reports that D.F. had autism. As ...


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