In re Interest of Jordan B., a child under 18 years of age. State of Nebraska, appellee.
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.
Juvenile Courts: Appeal and Error. An
appellate court reviews juvenile cases de novo on the record
and reaches its conclusions independently of the juvenile
Lesser-Included Offenses. Whether a crime is
a lesser-included offense is determined by a statutory
elements approach and is a question of law.
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.
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.
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.
Juvenile Courts: Criminal Law. Juvenile
proceedings are not criminal prosecutions.
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
Sexual Assault. Third degree sexual assault
is a separate and distinct offense from the crime of first
degree sexual assault.
Juvenile Courts: Double Jeopardy. Jeopardy
attaches in juvenile delinquency proceedings when the
juvenile court, as the trier of the facts, begins to hear
Statutes: Appeal and Error. Appeals under
specific statutory provisions require strict adherence to the
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).
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
NATURE OF CASE
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.
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.
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.
State's evidence consisted of the testimony of the
victim, her mother, her older brother, and the investigator
who interviewed Jordan regarding the allegations.
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.
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.
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
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.
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
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.
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.
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.
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.
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.
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.
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