In re Interest of K.M., a child under 18 years of age. State of Nebraska, appellee.
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.
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.
.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
. 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
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.
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.
C. Riley, Douglas County Public Defender, and Timothy F.
Shanahan for appellant.
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.
NATURE OF CASE
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" 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."
appeal, the Nebraska Court of Appeals reversed the
adjudication, finding insufficient evidence to uphold
K.M.'s adjudication by proof beyond a reasonable
doubt. 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.
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. 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.
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.
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.
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
testified about the investigation and her interview with K.M.
A video recording of the interview was entered into evidence.
video shows that K.M. waived his
Miranda 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.
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.
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
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.
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.
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.
Court of Appeals' Opinion
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."
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."
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
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]
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 ...