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In re Jordan B.

Supreme Court of Nebraska

June 22, 2018

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

          1. Constitutional Law: Due Process: Appeal and Error. Whether the procedures given an individual comport with constitutional requirements for procedural due process presents a question of law that an appellate court reviews independently of the lower court.

         2. 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.

         3. Lesser-Included Offenses. Whether a crime is a lesser-included offense is determined by a statutory elements approach and is a question of law.

         4. Appeal and Error: Words and Phrases. Plain error exists where there is an error, plainly evident from the record but not complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it uncorrected would cause a miscarriage of justice or result in damage to the integrity, reputation, and fairness of the judicial process.

         5. Indictments and Informations. In a criminal case, due process requires that an information must inform the accused with reasonable certainty of the crime charged so that the accused may prepare a defense to the prosecution and, if convicted, be able to plead the judgment of conviction on such charge as a bar to a later prosecution for the same offense.

         6. __ . Generally, to charge a defendant with the commission of a criminal offense, the information or complaint must allege each statutorily essential element of the crime charged, expressed in the words of the statute which prohibits the conduct charged as a crime, or in language equivalent to the statutory terms defining the crime charged.

          [300 Neb. 356] 7. Indictments and Informations: Lesser-Included Offenses: Notice. The defendant is by implication charged with the lesser offense when charged with the greater offense, and due process is satisfied so long as the nature of the crime charged was sufficient to give the defendant notice that he or she could be convicted of the lesser-included offense.

         8. Juvenile Courts: Criminal Law. Juvenile proceedings are not criminal prosecutions.

         9. Juvenile Courts: Due Process. It violates due process to adjudicate a juvenile, whose freedom could be curtailed, of committing acts constituting a separate and distinct offense for which the juvenile was not specifically charged.

         10. Sexual Assault. Third degree sexual assault is a separate and distinct offense from the crime of first degree sexual assault.

         11. Juvenile Courts: Double Jeopardy. Jeopardy attaches in juvenile delinquency proceedings when the juvenile court, as the trier of the facts, begins to hear evidence.

         12. Statutes: Appeal and Error. Appeals under specific statutory provisions require strict adherence to the statute's procedures.

         13. Juvenile Courts: Jurisdiction: Appeal and Error. An appellate court lacks jurisdiction to consider the State's exceptions that fail to fully comply with the statutory procedures outlined in Neb. Rev. Stat. § 29-2317 (Reissue 2016), as incorporated by Neb. Rev. Stat. § 43-2, 106.01 (Reissue 2016).

          Appeal from the County Court for Hall County: Timothy E. Hoeft, Judge. Reversed and remanded with directions.

          Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom & Stehlik, P.C., L.L.O., for appellant.

          Matthew C. Boyle, Deputy Hall County Attorney, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

          Heavican, C.J.

         I. NATURE OF CASE

         In adjudication proceedings under Neb. Rev. Stat. § 43-247(2) (Reissue 2016), the only law violation alleged in the petition was first degree sexual assault. After a hearing, [300 Neb. 357] the juvenile court found that the State failed to prove the juvenile, Jordan B., committed acts constituting first degree sexual assault. Nevertheless, the juvenile court adjudicated Jordan based on its finding that he committed third degree sexual assault. The court believed that third degree sexual assault was a lesser-included offense of first degree sexual assault, and could thus be raised sua sponte. Because third degree sexual assault is not a lesser-included offense of first degree sexual assault, we reverse, and remand with directions.

         II. BACKGROUND

         1. Juvenile Petition The county attorney filed a petition asking the juvenile court to adjudicate Jordan as a juvenile who committed an act that would constitute a felony under the laws of this State pursuant to § 43-247(2). The felony alleged was first degree sexual assault as described in Neb. Rev. Stat. § 28-319 (Reissue 2016). The petition alleged that Jordan committed such acts on or between January 25 and November 8, 2016.

         2. Evidence at Hearing Jordan was 17 years old at the time of the hearing on the petition. He lived at home with his mother, a childcare provider (the provider), as well as with his 19-year-old brother, Tyler B. The provider operates a daycare out of her home, taking care of eight children. Jordan's alleged victim was a child in the provider's care, who was cared for Mondays through Fridays during the time period alleged in the petition. The victim's older brother also attended the daycare when he was not in school.

         (a) State's Evidence

         The State's evidence consisted of the testimony of the victim, her mother, her older brother, and the investigator who interviewed Jordan regarding the allegations.

         The victim was 5 years old at the time of the hearing. The victim testified that on at least one occasion, Jordan took her [300 Neb. 358] to his room downstairs, shut the door, took off her shorts and underwear, had her lie down on the bed and put her legs up, and "sticked his wiener in my butt." The victim described her "butt" as "where I pee out and that's where I poop." She described "wiener" as "the part that boys pee out of." The victim said it hurt "really bad." The victim's testimony was inconsistent as to whether this had occurred once or twice, but she ultimately testified that it occurred only once.

         The victim's brother was 8 years old at the time of the hearing. The brother testified the victim told him that while in Jordan's room, Jordan "stuck his wiener up her butt" and that Jordan told the victim she should not tell anybody. The brother testified that sometimes, the provider left the house during daycare hours to run errands. At such times, Jordan's grandmother usually would watch the children. The brother reported that sometimes Jordan or Tyler would watch the children, but that whenever Jordan and Tyler were home, either the provider or the grandmother was also there. However, when the victim's brother was recalled to testify after his mother's testimony, he stated that there were times when neither the provider nor the grandmother was at the daycare and Tyler was responsible for watching the children.

         The victim's mother testified that on November 7, 2016, the victim told her that "Jordan tried to stick his wiener in her butt" and that Jordan had told the victim not to tell anybody. On cross-examination, the mother reiterated that the victim told her that Jordan had "tried" to "stick his wiener in her butt" and that the victim had never told her whether there was penetration. The mother testified that the victim told her this attempt occurred only one time.

         The mother worked for the Department of Health and Human Services, investigating allegations of child abuse and neglect, including sexual abuse. She told her children that her "job is to help kids." She testified that she did not otherwise discuss her job with her children. She did sometimes discuss her work with her husband when the children were at home, [300 Neb. 359] but she testified that she did not discuss things that were confidential. Thus, the mother affirmed that she had never discussed around her family the specific allegations of any cases she worked on.

         The investigator testified that he interviewed Jordan on November 17, 2016. Jordan consistently denied the allegations against him. Jordan speculated that the victim could have been angry with him for correcting her at some point. Jordan further told the investigator that if something of that nature had occurred to the victim, it was someone else who committed the alleged acts.

         (b) Defense

         Jordan testified in his own defense and presented the testimony of the provider, the grandmother, and Tyler. Jordan also entered into evidence the video of the interview of the victim conducted at a child advocacy center.

         The video was offered by Jordan to show the victim stated that the assault occurred twice, contradicting her trial testimony. The video reflects that in her interview, the victim said that Jordan had "put his wiener in [her] butt" and that then she "kicked him because it was too hard." The victim described that this happened in Jordan's room after he had her lie down on her back in his bed and had taken her shorts and underwear off. At the time, the provider was not home and Jordan and Tyler were watching the children. The victim repeatedly said this occurred twice, once when she was 4 years old and once when she was 5 years old.

         Jordan testified that he was never alone with the victim and denied committing any of the alleged acts. Jordan denied touching the victim in any way. Jordan testified that he was never home alone with the daycare children. When the provider was not there, either the grandmother or Tyler was in charge of the children. Though Jordan sometimes watched certain daycare children on the weekends, he never babysat the victim. Jordan explained that he told the investigator it must have been [300 Neb. 360] someone else who had sexually assaulted the victim, based on things he had heard the victim's mother say. Due to a hearsay objection, Jordan did not elaborate.

         The provider testified that she never left Jordan alone with the daycare children. She explained that it is part of the licensing requirements that she never leave the children alone with anyone younger than 18 years of age. When she has to leave the home while children are in her care, she leaves them with the grandmother, who is also a licensed daycare provider, or with Tyler.

         The provider denied there was ever any occasion in which Jordan could have been alone in his bedroom with any of the daycare children. The provider stated that she, the grandmother, and Tyler had been trained to keep all eight children in sight at all times. Thus, there was never a time when she was home that the victim was out of her sight.

         The provider described that when the children are outside, one adult is outside and another is inside the house, so that children running inside to use the restroom or get a snack are never unsupervised. Specifically, there was never a time when Jordan would have been in the house alone with a child while she was outside with other children. The provider testified that sometimes, the victim's mother shared with her the details of cases she worked on at the Department of Health and Human Services.

         The grandmother testified that during the time in question, she had shut down her daycare due to her husband's health. Therefore, approximately three or four times a month, she was able to assist the provider in caring for the daycare children. The grandmother testified that there was no ...


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