                         IN THE NEBRASKA COURT OF APPEALS

               MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                        (Memorandum Web Opinion)

                                  IN RE INTEREST OF KALEN M.


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                IN RE INTEREST OF KALEN M., A CHILD UNDER 18 YEARS OF AGE.

                                STATE OF NEBRASKA, APPELLEE,
                                               V.

                                     KALEN M., APPELLANT.


                           Filed October 17, 2017.    No. A-16-1205.


       Appeal from the Separate Juvenile Court of Douglas County: VERNON DANIELS, Judge.
Reversed and remanded with directions to dismiss.
       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.



       INBODY, PIRTLE, and RIEDMANN, Judges.
       INBODY, Judge.
                                       INTRODUCTION
       Kalen M. appeals the November 22, 2016, order of the Douglas County Separate Juvenile
Court adjudicating him as a child within the meaning of Neb. Rev. Stat. § 43-247(2) (Supp. 2015)
based upon the juvenile court’s finding that the State had proved, beyond a reasonable doubt, that
Kalen had committed the offense of first degree sexual assault.




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                                    STATEMENT OF FACTS
        In February 2016, the State filed a petition alleging Kalen came within the meaning of
§ 43-247(2) by reason of being a juvenile having committed an act which would constitute a
Class II felony, i.e., first degree sexual assault, in that, on or about February 5, Kalen submitted
the victim to sexual penetration and Kalen knew the victim was mentally or physically incapable
of resisting or appraising the nature of his or her conduct, in violation of Neb. Rev. Stat.
§ 28-319(1)(b) (Reissue 2016).
        The adjudication hearing was held on November 4, 2016. The evidence established that
Kalen’s date of birth was February 2, 2003, and the victim was born in November 2003 and has
autism and ADHD. Omaha Police Detective Kristine Love testified that, on February 5, 2016, she
interviewed Kalen at police headquarters. Approximately 40 minutes into the interview, Kalen
admitted penetrating the victim’s anus approximately two centimeters with his penis. During the
interview, which was admitted into evidence as exhibit 2, Kalen stated that the victim has autism
and the victim “didn’t know right from wrong” and “why would I do that because basically I’m
corrupting him to do that.” However, Kalen also stated during his interview that, even though the
victim has autism, he is a “really smart kid” and the victim blamed Kalen when the victim gets
into food that he is not supposed to eat. The incident occurred between December 2015 and January
2016 at a residence located in Douglas County, Nebraska.
        Sarah Cleaver, a pediatric nurse practitioner at the Project Harmony Child Advocacy
Center, testified that she examined the victim at Project Harmony on January 26, 2016. During the
medical examination, the victim made statements that he was anally penetrated by Kalen. There
was evidence regarding the victim’s rectal bleeding but Cleaver was unable to make any
determination as to whether the bleeding had anything to do with the reported sexual assault and,
in fact, testified that the most likely explanation was the victim’s history of constipation and
reported constipation and bowel movement that morning. Thus, the victim’s genital exam neither
confirmed nor excluded the possibility of sexual abuse.
        On November 22, 2016, the juvenile court entered an adjudication order finding that the
State proved, beyond a reasonable doubt, that allegations of the petition were true.
                                   ASSIGNMENT OF ERROR
       Kalen contends that the juvenile court erred in adjudicating him as a child within the
meaning of § 43-247(2) based upon the court’s finding that the State had proved, beyond a
reasonable doubt, that Kalen had committed the offense of first degree sexual assault.
                                    STANDARD OF REVIEW
       An appellate court reviews juvenile cases de novo on the record and reaches its conclusions
independently of the juvenile court’s findings. In re Interest of Becka P., 296 Neb. 365, 894
N.W.2d 247 (2017).
                                            ANALYSIS
        Kalen alleges that the juvenile court erred in adjudicating him as a child within the meaning
of § 43-247(2).




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        Under § 43-247(2), the juvenile court has jurisdiction over any minor under the age of 18
who has committed a felony. A finding and adjudication under § 43-247(2) can be made only upon
proof beyond a reasonable doubt. Neb. Rev. Stat. § 43-279(2) (Reissue 2016). Although an
adjudication is not a criminal proceeding, an appellate court takes guidance from the criminal laws
of Nebraska in reviewing the same. In re Interest of Adrian B., 11 Neb. App. 656, 658 N.W.2d 722
(2003). In this case, in order to adjudicate Kalen, the State had to prove that Kalen had subjected
the victim to sexual penetration and Kalen knew or should have known that the victim was
mentally or physically incapable of resisting or appraising the nature of his conduct. See
§ 28-319(1)(b). Kalen specifically assigned as error that the evidence adduced by the State did not
support the juvenile court’s determination that the State had proved, beyond a reasonable doubt,
that he had committed the offense of first degree sexual assault.
        The evidence establishes, beyond a reasonable doubt, that Kalen subjected the victim to
sexual penetration. Not only did the evidence include the victim’s allegations, Kalen admitted to
sexually penetrating the victim’s anus with his penis. However, the State also had to prove that
Kalen knew or should have known that the victim was mentally or physically incapable of resisting
or appraising the nature of his conduct.
        The 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. State v. Rossbach,
264 Neb. 563, 572, 650 N.W.2d 242, 250 (2002). See, State v. Collins, 7 Neb. App. 187, 583
N.W.2d 341 (1998); In re Interest of J.M., 223 Neb. 609, 391 N.W.2d 146 (1986). Under
§ 28-319(1)(b), the two-part analysis requires a significant abnormality, such as severe
intoxication or other substantial mental or physical impairment, on the part of the alleged victim,
and knowledge of the abnormality on the part of the alleged attacker. State v. Rossbach, supra.
See State v. Collins, supra. “However, Nebraska criminal law also recognizes that an otherwise
competent person can be sexually assaulted if the person is physically or mentally incapable of
resisting.” State v. Collins, 7 Neb. App. at 197, 583 N.W.2d at 348, quoting Reavis v. Slominski,
250 Neb. 711, 551 N.W.2d 528 (1996).
        During his interview, Kalen admitted that the victim has autism and the victim “didn’t
know right from wrong” and “why would I do that because basically I’m corrupting him to do
that.” However, Kalen also stated during his interview that, even though the victim has autism, he
is a “really smart kid.” Further, Kalen stated that when the victim would get into food that he was
not supposed to eat, he would blame Kalen; this is evidence that the victim did understand right
from wrong enough to keep himself from getting into trouble. Additionally, there was no evidence
presented by the State regarding where the victim’s autism fell on the autism spectrum, whether
the victim’s autism would render the victim incapable of resisting or appraising the nature of
Kalen’s conduct, and whether Kalen knew or should have known of the victim’s inability to resist
or appraise the nature of Kalen’s conduct.
        In this case, it was the State’s burden to establish, beyond a reasonable doubt, all of the
elements of the offense of first degree sexual assault, including that Kalen knew or should have
known that the victim was mentally or physically incapable of resisting or appraising the nature of
his conduct. However, stated simply, the State failed to adduce any evidence of whether Kalen
knew or should have known that the victim was mentally or physically incapable of resisting or



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appraising the nature of his conduct other than the simple admission that Kalen knew the victim
has autism. This is insufficient to support the State’s burden of proving the elements as charged
beyond a reasonable doubt. Consequently, the juvenile court erred in adjudicating Kalen as a child
within the meaning of § 43-247(2) and we reverse the order of adjudication and remand this cause
with directions to dismiss.
                                                                  REVERSED AND REMANDED WITH
                                                                  DIRECTIONS TO DISMISS.




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