                         Nebraska Advance Sheets
	                                STATE v. BRAUER	81
	                                Cite as 287 Neb. 81

                     State of Nebraska,           appellee, v.
                      Nathan J. Brauer,        appellant.
                                   ___ N.W.2d ___

                     Filed December 27, 2013.      No. S-12-1169.

 1.	 Trial: Convictions. An appellate court will sustain a conviction in a bench trial
     of a criminal case if the properly admitted evidence, viewed and construed most
     favorably to the State, is sufficient to support that conviction.
 2.	 Convictions: Evidence: Appeal and Error. When reviewing a criminal convic-
     tion for sufficiency of the evidence to sustain the conviction, an appellate court
     does not resolve conflicts in the evidence, pass on the credibility of witnesses,
     evaluate explanations, or reweigh the evidence presented, which are within a fact
     finder’s province for disposition. Instead, the relevant question is whether, after
     viewing the evidence in the light most favorable to the prosecution, any rational
     trier of fact could have found the essential elements of the crime beyond a rea-
     sonable doubt.
 3.	 Sexual Assault: Proof. Whether there is sufficient evidence to prove sexual
     arousal or gratification (which, by necessity, must generally be inferred from the
     surrounding circumstances), is extraordinarily fact driven.

   Appeal from the District Court for Cheyenne County: Derek
C. Weimer, Judge. Affirmed.
  Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder,
Chaloupka, Longoria & Kishiyama, P.C., L.L.O., for appellant.
  Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
  Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
      Connolly, J.
                         SUMMARY
   Following a bench trial, the district court found Nathan
J. Brauer guilty of sexually assaulting a child in the third
degree.1 The record shows that Brauer poked a child in the
penis, over his clothes, using two fingers. The touch was
brief, and it happened a single time. The sole issue on appeal
is whether there was sufficient evidence to conclude beyond
a reasonable doubt that Brauer’s touch was “sexual contact,”

 1	
      Neb. Rev. Stat. § 28-320.01 (Reissue 2008).
   Nebraska Advance Sheets
82	287 NEBRASKA REPORTS



which is limited to conduct that can be “reasonably construed
as being for the purpose of sexual arousal or gratification.”2
Although some facts suggest an innocent explanation, there
are sufficient other facts—most notably, Brauer’s incriminat-
ing statements to law enforcement—which support the court’s
finding. We affirm.
                        BACKGROUND
                Factual and P rocedural History
   Jeremy N. and Danae N. were long-time friends with Brauer.
In the spring or early summer of 2011, Jeremy and Danae
asked Brauer (who was not employed at the time) if he would
like to watch their children, D.N. (about a year old) and J.N.
(4 years old). Brauer agreed to do so, though the arrangement
lasted only through June; at that point, Jeremy and Danae no
longer needed Brauer to babysit their children.
   During or soon after that time, J.N. made statements or
asked questions that concerned Jeremy and Danae. At one
point, while Jeremy and Danae were watching television, J.N.
“turned around and . . . said, mommy, daddy nobody is sup-
posed to touch your butt or peenie, right?” Jeremy and Danae
told him that “no, nobody is ever supposed to touch you. And
[J.N.] let it go from there.” Several weeks later, Brauer came
by the house to see Jeremy’s new camper, and J.N. told Jeremy
that Brauer “made him feel funny, made him feel that [Brauer]
wanted to touch [J.N.’s] butt or his peenie.” After that, Jeremy
and Danae did not allow Brauer to see J.N., though Brauer still
came around the house.
   During this time and into the early fall, Danae felt that there
was something wrong with J.N. but she could not tell what it
was. Doreen Schaub, J.N.’s daycare provider, had also noticed
changes in J.N.’s behavior and was worried about him. On
September 29, 2011, while at the daycare, Danae asked Schaub
to help her try to discover what was wrong with J.N. Danae
and Schaub met with J.N., and Danae asked him whether there
was something wrong, and J.N. said no. Danae mentioned
Brauer’s name, and J.N. said that Brauer had not done anything

 2	
      Neb. Rev. Stat. § 28-318(5) (Cum. Supp. 2012).
                  Nebraska Advance Sheets
	                       STATE v. BRAUER	83
	                       Cite as 287 Neb. 81

to him. Schaub told J.N. that he had to tell the truth, and then
J.N. said that Brauer had touched his “peepee.” At that point,
Danae became hysterical, and Schaub called Danae’s mother to
come to the daycare. Danae’s mother called law enforcement,
and an officer arrived shortly thereafter. The officer arranged
for J.N. to be interviewed at 7:30 that night.
    Lt. Keith A. Andrew, of the Sidney Police Department, an
investigator in crimes against children, interviewed J.N. that
night. Much of the interview consisted of Andrew’s attempting
to build a rapport with J.N. They discussed J.N.’s family, and
Andrew emphasized that J.N. had done nothing wrong. At the
beginning of the interview, Andrew tested J.N. to be sure that
J.N. understood the difference between a truth and a lie. In the
middle of the interview, Andrew had J.N. look at textbook pic-
tures of a boy and of a man and identify what he called each of
their parts. Andrew did this because “some children will iden-
tify like their penis or their groin area with multiple names[,]
so we want to make sure that when they are telling us about
their peenie or whatever that is[,] we know what part they are
talking about.”
    Eventually, J.N. asked whether Brauer was in trouble, iden-
tified Brauer as his dad’s “buddy,” and explained that Brauer
used to babysit J.N. In response to Andrew’s questions, J.N.
explained that Brauer had touched J.N.’s “peenie,” but not
his “bottom.” J.N. explained that it had happened at Brauer’s
house, in the living room, after they had watched a movie.
J.N. showed Andrew how Brauer had touched him, indicating
that it was a two-finger tap or poke to his penis. J.N. consist­
ently maintained that the touch happened only once and that
he had all of his clothes on when it happened. J.N. said that
he told Brauer “don’t do that ever again” and Brauer apolo-
gized. Throughout the interview, J.N. was cheerful, coopera-
tive, and unafraid.
    Toward the end of October 2011, Andrew visited Brauer
at his workplace. Andrew informed Brauer of the allegations,
which Brauer denied. Andrew “asked him if there was ever
any time he had touched [J.N.’s] penis area for any reason[,]
including playing[,] and he said absolutely not.” Andrew asked
Brauer whether he would meet with him for some followup
   Nebraska Advance Sheets
84	287 NEBRASKA REPORTS



questions; Brauer agreed, and Andrew arranged for Brauer to
come to the Nebraska State Patrol office for an interview on
November 8.
   During that interview, Brauer initially denied ever touching
J.N. but eventually acknowledged the touch described above.
Though Brauer denied ever having any explicit sexual contact
(such as penetration or masturbation) with J.N., he did make
several incriminating statements, which will be set forth in
detail below. Law enforcement released Brauer following the
interview, but arrested him a few hours later.
                             The Trial
   The State charged Brauer with sexually assaulting a child
in the third degree. Brauer waived his right to a jury trial and
elected to proceed with a bench trial. At trial, J.N., along with
his parents, his daycare provider, and the various law enforce-
ment officers involved in the investigation (chiefly, Andrew)
testified to the above facts. J.N. also related a host of additional
allegations which he had never expressed before in his inter-
view with Andrew or (presumably) to his parents. For example,
J.N. testified that Brauer “dragged” J.N. into the bathroom and
locked him in there, that the touch occurred in the bathroom,
and that Brauer used his “whole hand.”
                      The Court’s Order
   Based on the trial court’s opinion, the court gave no cre-
dence to J.N.’s additional allegations at trial, but the court did
find Brauer guilty. The court made extensive factual findings,
including that the touch was a two-finger touch or poke, that it
occurred over J.N.’s clothes, and that it was brief and occurred
only once. The court noted that the only contested element of
the crime was “whether the State submitted sufficient evidence
to prove beyond a reasonable doubt that [Brauer’s] touching of
[J.N.] was ‘sexual contact’ as that term is defined in the law.”
Brauer’s touching of J.N. could be “sexual contact” only if it
could be “reasonably construed as being for the purpose of
sexual arousal or gratification of either party.”3

 3	
      Id.
                        Nebraska Advance Sheets
	                              STATE v. BRAUER	85
	                              Cite as 287 Neb. 81

   In finding that the State had proved sexual contact, the
court emphasized a number of facts. The court noted that, at
first, Brauer persistently denied any contact with J.N., then
said “maybe he got close once when he picked [J.N.] up when
they were wrestling around,” and then eventually admitted
to touching J.N. The court also noted that Brauer apologized
immediately to J.N. and that during Brauer’s interview with
law enforcement, Brauer made suicidal statements. Viewed
together, the court saw this as evidence of consciousness
of guilt.
   The court also emphasized the context around the touch.
The court noted that Brauer acknowledged sharing “a kiss
and hug of some kind with [J.N.] prior to the touching and
that it made him feel really good,” though the court acknowl-
edged that Brauer said that it made him feel good mentally,
but not sexually. The court noted that the touch occurred
when Brauer was alone and unsupervised with J.N. And
the court noted that, based on J.N.’s behavioral changes,
“[t]his incident was obviously weighing on [J.N.]” Finally,
the court emphasized Brauer’s incriminating statements dur-
ing his interview with Andrew, which the court characterized
as “admissions.”
   After rendering its verdict, the court sentenced Brauer to 2
to 3 years in prison.

                  ASSIGNMENT OF ERROR
   Brauer assigns, restated, that the district court erred in find-
ing that the State had proved beyond a reasonable doubt that
Brauer’s touch was “sexual contact.”

                  STANDARD OF REVIEW
   [1,2] We will sustain a conviction in a bench trial of a
criminal case if the properly admitted evidence, viewed and
construed most favorably to the State, is sufficient to sup-
port that conviction.4 In making this determination, we do
not resolve conflicts in the evidence, pass on the credibility
of witnesses, evaluate explanations, or reweigh the evidence

 4	
      See State v. Lamb, 280 Neb. 738, 789 N.W.2d 918 (2010).
   Nebraska Advance Sheets
86	287 NEBRASKA REPORTS



presented, which are within a fact finder’s province for dispo-
sition.5 Instead, the relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential ele-
ments of the crime beyond a reasonable doubt.6
                           ANALYSIS
   Brauer’s argument is simple: He argues that the evidence
was insufficient to support the verdict. Specifically, Brauer
argues that the evidence was insufficient to show, beyond a
reasonable doubt, that Brauer’s touching J.N. was “sexual con-
tact,” which is limited to conduct which can be “reasonably
construed as being for the purpose of [Brauer’s] sexual arousal
or gratification” under § 28-318(5). In support of his argument,
Brauer argues, among other things, that the touch was minor,
fleeting, and over the clothes, and that there were no “indicia
of sexual arousal.”7
   We recently addressed the same issue, though in a differ-
ent context, in State v. Osborne.8 There, we referenced the
Nebraska Court of Appeals’ opinion detailing the underlying
facts and then concluded that affirmance was proper after “hav-
ing reviewed the briefs and record and having heard oral argu-
ments, and considering the relevant standard of review.”9 This
case presents different and, qualitatively speaking, weaker facts
than Osborne; but we do not bring up Osborne to compare
facts. Its relevance here, beyond presenting the same issue, is
as a recent example of the role the standard of review plays in
criminal cases at the appellate level.
   There is an appellate maxim that “standards of review can
be a party’s best friend or they can be a party’s worst enemy.”
That maxim rings true today, and to Brauer’s detriment. The
record could very well support inferences other than those
drawn by the trial court. But under our standard of review, we

 5	
      See id.
 6	
      See id.
 7	
      Brief for appellant at 22.
 8	
      State v. Osborne, 286 Neb. 154, 835 N.W.2d 664 (2013).
 9	
      Id. at 156-57, 835 N.W.2d at 666 (emphasis supplied).
                        Nebraska Advance Sheets
	                            STATE v. BRAUER	87
	                            Cite as 287 Neb. 81

do not resolve conflicts in the evidence, reweigh the evidence,
assess witness credibility, or evaluate explanations. Instead,
we ask only whether—viewing the evidence in the light most
favorable to the prosecution—any rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt. It could.
   The State charged Brauer with sexually assaulting a child in
the third degree. Section 28-320.01(1) explains that “[a] person
commits sexual assault of a child in the second or third degree
if he or she subjects another person fourteen years of age or
younger to sexual contact and the actor is at least nineteen
years of age or older.” The crime is in the third degree if the
“actor does not cause serious personal injury to the victim,”10
which is the case here.
   Because the ages of the relevant persons were undisputed,
as was the existence of the touch itself, the only issue was
whether the touch was “sexual contact” under § 28-318(5).
Brauer did not dispute that he intentionally touched J.N.’s
“clothing covering the immediate area of [J.N.’s] sexual or
intimate parts.” The only question was whether Brauer’s touch
could be “reasonably construed as being for the purpose of
[Brauer’s] sexual arousal or gratification.” After reviewing the
record, we conclude that there was sufficient evidence to sup-
port the trial court’s finding beyond a reasonable doubt that
Brauer’s touch was “sexual contact.”
   As noted by the trial court, Brauer initially (and persist­
ently) denied ever touching J.N. in or around his crotch for
any reason, even accidentally. Then, when confronted by law
enforcement officers, he admitted that he “had come in contact
with [J.N.] on the upper leg area in the vicinity of the geni-
tals.” And during his interview with Andrew, Brauer eventually
admitted that he had “poked” J.N. in the penis. The transcript
of Brauer’s interview with Andrew also reveals that Brauer
contemplated suicide (though he assured Andrew he was not
going to follow through), making statements like, “I’m going
to go blow my head off.” Brauer’s initial refusal to acknowl-
edge the touch until repeatedly confronted by law enforcement

10	
      § 28-320.01(3).
   Nebraska Advance Sheets
88	287 NEBRASKA REPORTS



officers, along with his clear understanding that what he had
done was wrong, could allow the trial court to conclude that
this was more than simply an innocent touch.
   Other facts also support concluding that Brauer touched
J.N. for the purpose of sexual arousal or gratification. Brauer
acknowledged that, with Jeremy and Danae present, he had
shared “a kiss and hug of some kind with [J.N.] prior to
the touching and that it made him feel really good,” though
Brauer said it made him feel good mentally, not sexually. In
speaking with one investigator, Brauer said the kiss made
him feel a “spark.” Most damning, however, are Brauer’s
statements during Andrew’s interview with Brauer describ-
ing his touching J.N. We set out the critical part of the inter-
view below:
         LT. KEITH ANDREW: Okay. Tell me what — show
      me what happened. If this is his groin area, how did you
      touch him? Say this is — this is his groin area. It’s my
      knee, okay. I’m not big into touches, but go ahead and
      show me one time. Show me how it happened.
         NATHAN BRAUER: Oh, my God.
         LT. KEITH ANDREW: What?
         NATHAN BRAUER: I poked him like that.
         LT. KEITH ANDREW: Okay. With two fingers?
         NATHAN BRAUER: Two fingers. I just poked him
      like that. Oh.
         LT. KEITH ANDREW: And then you stopped; right?
         NATHAN BRAUER: Yeah, because he came flying up
      to me just to jump on me to give me a hug, and he hit
      me in the nuts. So my reaction was, [J.N.], no, and then
      I poked him in the nuts. And I thought, what the — oh,
      okay, sorry, [J.N.]
         LT. KEITH ANDREW: Okay. Because you knew that
      feeling. You were like, stop, don’t let this get carried
      away?
         NATHAN BRAUER: Yeah.
         LT. KEITH ANDREW: Because you care for him?
      Okay. But there was something sexual that kicked in
      when you did that?
                 Nebraska Advance Sheets
	                      STATE v. BRAUER	89
	                      Cite as 287 Neb. 81

        NATHAN BRAUER: Well, I wouldn’t really say sex-
    ual. I mean, it just kind of hurt me in a way, I guess.
        LT. KEITH ANDREW: Okay.
        NATHAN BRAUER: But when I hit him in the nuts,
    it’s like, oh, my God, that’s . . .
        LT. KEITH ANDREW: So it gave you a spark, for lack
    of a better term?
        NATHAN BRAUER: A spark to never do it again.
        LT. KEITH ANDREW: A charge? Okay.
        NATHAN BRAUER: It — no. It just kind of give me
    that hit like, oh, okay, I just fucked up.
        LT. KEITH ANDREW: This is wrong, never do this
    again?
        NATHAN BRAUER: Yeah.
        LT. KEITH ANDREW: You don’t do this to kids?
        NATHAN BRAUER: No.
        LT. KEITH ANDREW: Okay.
        NATHAN BRAUER: You do not do that to kids.
        LT. KEITH ANDREW: So it was kind of a sexual —
    had a sexual connotation to it and — but you —
        NATHAN BRAUER: Well . . .
        LT. KEITH ANDREW: — checked it and stopped?
        NATHAN BRAUER: Yeah. I mean, I wouldn’t say,
    like, it got my dick hard or made me, like, you know
    throb up with it, but it just made me, you know . . .
        LT. KEITH ANDREW: Maybe like an adrenaline-
    type rush?
        NATHAN BRAUER: Yeah.
        LT. KEITH ANDREW: Like a — like a release of
    some hormone that had a sexual connotation to it?
        NATHAN BRAUER: Well, it probably was a little bit
    of that because I got racked, and I wanted to tell him basi-
    cally don’t do this.
        LT. KEITH ANDREW: Okay. Okay. So how many
    times did this happen? One time?
        NATHAN BRAUER: One time.
        LT. KEITH ANDREW: Happened one time. Did [J.N.]
    say anything to you?
   Nebraska Advance Sheets
90	287 NEBRASKA REPORTS



      NATHAN BRAUER: That hurt.
      LT. KEITH ANDREW: Okay.
      NATHAN BRAUER: And so I said, I’m like, sorry,
   [J.N.]
      LT. KEITH ANDREW: Okay. And did he tell you to
   — anything else after that? How about something to the
   effect, don’t ever do that again?
      NATHAN BRAUER: Yeah.
      LT. KEITH ANDREW: Did he tell you that? Do you
   remember that?
      NATHAN BRAUER: I think so. I can’t really . . .
      LT. KEITH ANDREW: Something? He said something
   along that lines [sic]? You don’t remember the exact ter-
   minology; is that right?
      NATHAN BRAUER: I don’t remember.
      LT. KEITH ANDREW: Okay. Okay.
      NATHAN BRAUER: I mean, I remember . . .
      LT. KEITH ANDREW: So let me make sure I have
   this right, okay? I want to make sure I’m understanding
   everything because I don’t want to misconstrue anything
   . . . okay? So I’m going to kind of regurgitate what
   you’ve told me.
      NATHAN BRAUER: Yeah.
      LT. KEITH ANDREW: And if there’s a correction to
   be made, tell me.
      NATHAN BRAUER: Okay.
      ....
      LT. KEITH ANDREW: Okay. So he was — you guys
   were playing. He hit you in your groin, which caused you
   some pain.
      NATHAN BRAUER: Oh, yeah.
      LT. KEITH ANDREW: Okay.
      NATHAN BRAUER: Oh, yeah.
      LT. KEITH ANDREW: We’ve all been there. We know
   that hurts, okay.
      NATHAN BRAUER: Yeah. Yeah.
      LT. KEITH ANDREW: And you went like — you used
   two fingers like this.
                Nebraska Advance Sheets
	                    STATE v. BRAUER	91
	                    Cite as 287 Neb. 81

       NATHAN BRAUER: Uh-huh.
       LT. KEITH ANDREW: You went like that to his groin.
       NATHAN BRAUER: Uh-huh.
       LT. KEITH ANDREW: And . . .
       NATHAN BRAUER: Just to pretty much tell him, hey,
    that hurts, don’t do that.
       LT. KEITH ANDREW: Okay. And when you did that,
    there was a — some kind of impulse.
       NATHAN BRAUER: Yeah. Yeah.
       LT. KEITH ANDREW: The thrill of some kind of
    sexual . . .
       NATHAN BRAUER: I wouldn’t really say sexual
    really, but there was an impulse.
       LT. KEITH ANDREW: Okay.
       NATHAN BRAUER: I’m just . . .
       LT. KEITH ANDREW: And then you did the right
    thing. You said, I’m never . . .
       NATHAN BRAUER: Oh, I fucked up, sorry.
       LT. KEITH ANDREW: I’m — I screwed up, the —
    going through your head, I will never do this again,
    because you don’t like kids. I mean, you like kids, but
    you don’t have a preference for kids.
       NATHAN BRAUER: There we go, yeah.
       LT. KEITH ANDREW: A sexual preference for kids.
       NATHAN BRAUER: Yeah.
       LT. KEITH ANDREW: Is that fair?
       NATHAN BRAUER: Yeah, that’s fair.
       LT. KEITH ANDREW: Okay. So it happened once.
    You touched him there. There was a — some kind of
    sexual urge, not an erection.
       NATHAN BRAUER: No, never an erection.
       LT. KEITH ANDREW: Okay. But a sexual release of
    hormones, I guess is a better . . .
       NATHAN BRAUER: Yeah, it was . . .
       LT. KEITH ANDREW: Is that right?
       NATHAN BRAUER: Yeah. It was just a release.
       LT. KEITH ANDREW: That’s how I’m understand-
    ing it.
   Nebraska Advance Sheets
92	287 NEBRASKA REPORTS



         NATHAN BRAUER: It must have been a release of
      hormones.
         LT. KEITH ANDREW: And then you did the right
      thing. And right after it happened you were like, I’m
      never doing this again. I’m not going to touch him.
      He’s my family. He’s a little boy. And you’ve checked it
      since then.
         NATHAN BRAUER: Yeah.
         LT. KEITH ANDREW: And you haven’t done this
      since?
         NATHAN BRAUER: Nope.
         LT. KEITH ANDREW: Are you ever going to do that
      again?
         NATHAN BRAUER: Fuck no.
   Although Brauer does not endorse the “sexual” modifier,
he variously describes having experienced an “adrenaline-type
rush,” “impulse,” and a “release of hormones” from the touch.
Brauer made these statements knowing there were allegations
that he had touched J.N. with a sexual purpose. We agree with
the district court that these statements constitute admissions
that Brauer’s touch was for the purpose of his sexual arousal
or gratification. Viewed as a whole, the record presents suffi-
cient evidence for the fact finder to have found Brauer guilty,
beyond a reasonable doubt, of sexually assaulting J.N.
   But Brauer points out that there was an innocent expla-
nation for the touch: J.N. had been going through a phase
of hitting men in the crotch, and when J.N. hit Brauer in
the crotch, Brauer’s subsequent touch was a hasty (and ill-
advised) reaction, but not sexual in any way. Under our
standard of review, however, we do not reweigh evidence or
evaluate explanations. And contrary to Brauer’s assertion that
it was undisputed J.N. had hit Brauer in the crotch before
the touch, the district court found this explanation not cred-
ible because this “was not something [Brauer] had ever told
anyone before” Andrew’s interview and, particularly, because
it was not something Brauer had ever told his friends Jeremy
and Danae. We will not second-guess the district court’s deter-
minations in that regard.
                       Nebraska Advance Sheets
	                             STATE v. BRAUER	93
	                             Cite as 287 Neb. 81

   Brauer also repeatedly emphasizes that this was a single
poke, with two fingers, over J.N.’s clothes and that there was
no stroking or fondling or, indeed, any additional movement
of the hand or fingers. Brauer emphasizes that there was no
evidence that Brauer got an erection, that he told J.N. to keep
the touch secret, or that Brauer threatened J.N. And Brauer
argues that there was no evidence that he removed his clothing,
breathed heavily, or had any other observable signs of arousal.
All of this is true; but it does not change the evidence that
does exist, which is sufficient for the fact finder to have found
Brauer guilty. Whether the district court “failed to weigh[] and
act on [the] evidence cautiously”11 is not something we eval­
uate; we do not reweigh the evidence.
   Finally, Brauer points to several cases where courts have
found insufficient evidence of sexual arousal or gratifica-
tion. We find them materially distinguishable, in various
ways. For example, in In re Interest of Kyle O.,12 the Court
of Appeals determined that “the State presented insufficient
evidence to establish that ‘sexual contact’ occurred” between
a 14-year-old and a 5-year-old. Putting aside the fact that
In re Interest of Kyle O. involved two minors, the Court of
Appeals (reviewing a juvenile case) also operated under a de
novo standard of review,13 a standard far more lenient than
ours in this case.
   In State v. Powell,14 the Washington Court of Appeals
found insufficient evidence of sexual gratification. There, the
record showed that the defendant, well known to the child as
“Uncle Harry,” had hugged the child around her chest while
she was seated on his lap.15 As the defendant helped her off


11	
      Brief for appellant at 22.
12	
      In re Interest of Kyle O., 14 Neb. App. 61, 62, 703 N.W.2d 909, 911
      (2005).
13	
      See In re Interest of Kyle O., supra note 12.
14	
      State v. Powell, 62 Wash. App. 914, 816 P.2d 86 (1991).
15	
      See id. at 916, 816 P.2d at 87.
   Nebraska Advance Sheets
94	287 NEBRASKA REPORTS



his lap, he “placed his hand on her ‘front’ and bottom on her
underpanties under her skirt.”16 And, on another occasion,
while the defendant and the child were waiting for the child’s
cousin in the defendant’s truck, the defendant had “touched
both her thighs.”17
   The Washington Court of Appeals reversed, concluding that
the defendant’s “purpose in both touchings [was] equivocal.”18
The court emphasized several factors, including that the
touches were susceptible to innocent explanations, that the
child was clothed on each occasion, that the touches occurred
on the outside of the clothes, and that the defendant made no
threats, bribes, or requests not to tell.19 Finally, the defendant
acknowledged that he might have hugged and touched her, but
“[h]e denied ever touching [the child] under her skirt or touch-
ing her for sexual gratification.”20 We find this case distin-
guishable, primarily because of Brauer’s statements to Andrew,
set forth above, which we (like the district court) view as
incriminating admissions.
   [3] Brauer cites several other cases as examples of courts
having found insufficient evidence of sexual arousal or grati-
fication.21 We find them distinguishable, and we see no need
to recite each of them here. It suffices to say that what those
cases demonstrate, along with others we have uncovered, is
a simple truth: Whether there is sufficient evidence to prove
sexual arousal or gratification (which, by necessity, must gen-
erally be inferred from the surrounding circumstances)22 is
extraordinarily fact driven. The facts in this case, considering

16	
      Id.
17	
      Id.
18	
      Id. at 917, 816 P.2d at 88.
19	
      See Powell, supra note 14.
20	
      Id. at 918, 816 P.2d at 88.
21	
      See, e.g., In re Matthew K., 355 Ill. App. 3d 652, 823 N.E.2d 252, 291
      Ill. Dec. 242 (2005); People v. Guerra, 178 A.D.2d 434, 577 N.Y.S.2d
      296 (1991); State v. Brown, 586 A.2d 1085 (R.I. 1991); McKeon v.
      Commonwealth, 211 Va. 24, 175 S.E.2d 282 (1970).
22	
      See In re Interest of Kyle O., supra note 12.
                   Nebraska Advance Sheets
	                        STATE v. BRAUER	95
	                        Cite as 287 Neb. 81

our standard of review, constitute sufficient evidence to support
the verdict.
                          CONCLUSION
   Finding sufficient evidence to support the verdict, we affirm.
                                                        Affirmed.
   Miller-Lerman, J., dissenting.
   I fully recognize the need to protect children, but given the
evidence in the record, I respectfully dissent. Even viewing
the evidence in a light most favorable to the State as we must,
see State v. Lamb, 280 Neb. 738, 789 N.W.2d 918 (2010), and
mindful of the limitations of our appellate standard of review
as emphasized by the majority, I believe no reasonable finder
of fact could find beyond a reasonable doubt on this record
that the State established that Brauer’s conduct of touching
J.N. could be “reasonably construed as being for the purpose
of [Brauer’s] sexual arousal or gratification” under Neb. Rev.
Stat. § 28-318(5)(Cum. Supp. 2012).
   The undisputed facts of the incident giving rise to this case
are recited by the district court and repeated by the majority.
The district court found that the incident can be described as
having “happened once, over clothes and involved two fin-
gers.” The district court states that “[t]he issue presented in this
case is whether the State submitted sufficient evidence to prove
beyond a reasonable doubt that [Brauer’s] touching of [J.N.]
was ‘sexual contact’ as that term is defined in the law.”
   The district court made a finding that 4-year-old J.N. had a
“phase of striking men in the genital area.” The district court
further found there was “a list of people that had been hit in the
genitals by [J.N.] during this 3-4 week ‘phase’ when he would
do such a thing: . . . his father, his brother and . . . (a family
friend) were referenced.” Contrary to the majority, I do not
read the district court’s order as having found that J.N. did not
hit Brauer in the crotch. To the contrary, the district court sum-
marizes Brauer’s testimony as follows: “J.N. struck [Brauer] in
the genitals [and Brauer] wanted to show [J.N.] how that felt so
he struck [J.N.] or poked him there to do so.”
   This case was tried to the court, and we have the advan-
tage of particularized findings on which the verdict relies.
   Nebraska Advance Sheets
96	287 NEBRASKA REPORTS



Even with our limited standard of review, we can look at the
record to determine whether there is evidence in the record
which supports the findings of fact. The district court found
there was sexual conduct by Brauer based on “direct evi-
dence in the form of the admissions” of Brauer to Lt. Keith
Andrew. In particular, the district court found that Brauer
“acknowledge[d] a release of hormones and/or adrenaline”
after touching J.N., and it is this finding of fact which the
district court characterizes as the admission that serves as the
basis for the conviction. Indeed, the district court’s emphasis
on “hormones and/or adrenaline” is demonstrated by the dis-
trict court’s reference to this phrase three times in the opinion.
Further, the district court equates—incorrectly in my view—
hormones and adrenaline.
   The district court quotes Brauer’s interview with Lieutenant
Andrew at length, but nowhere in the quote does Brauer use
the word “adrenaline.” And as both the district court and the
majority note, although Lieutenant Andrew uses the word
“sexual” a number of times when questioning Brauer, Brauer
never adopts the term. So we cannot say that Brauer used the
word “hormone” in the sense of a sex-specific hormone.
   As for the word “adrenaline” on which the district court
heavily relies, it is used once by Lieutenant Andrew in the
lengthy interview and, as I read it, Brauer is describing the
feeling he experienced when he got hit in the genitals, or its
use is ambiguous, but it does not describe beyond a reason-
able doubt the feelings he experienced as a result of touching
J.N. In the passage, Lieutenant Andrew and Brauer are talking
over each other rather than clearly engaging in a question-
and-answer exchange. The passage which includes the critical
word “adrenaline” reads as follows:
         LT. KEITH ANDREW: Maybe like an adrenaline-
      type rush?
         NATHAN BRAUER: Yeah.
         LT. KEITH ANDREW: Like a — like a release of
      some hormone that had a sexual connotation to it?
         NATHAN BRAUER: Well, it probably was a little bit
      of that because I got racked, and I wanted to tell him basi-
      cally don’t do this.
                         Nebraska Advance Sheets
	                          JACOBITZ v. AURORA CO-OP	97
	                              Cite as 287 Neb. 97

   Even if we accept the finding of the district court that
Brauer admitted he experienced an “adrenaline” rush as a result
of touching J.N., such facts do not constitute proof that the
touch was “for the purpose of sexual arousal or gratification.”
The key issue is not what sensation Brauer experienced after
he touched the child, but, rather, what motivated him to touch
J.N. in the first place. The only evidence of this is Brauer’s
statement that he was reacting to the child’s striking him in the
genitals in an effort to stop such conduct. Of course, the reac-
tion was inappropriate and ill advised, but that does not mean
that it was for the purpose of sexual arousal or gratification.
In my view, there is no evidence in this record upon which
a finder of fact could reasonably conclude beyond a reason-
able doubt that Brauer touched the child for that purpose. His
actions may have constituted negligent child abuse or some
other offense, but not the offense of sexual assault with which
he was charged.
   Wright and Stephan, JJ., join in this dissent.



                       John Jacobitz, appellee, v.
                     Aurora Cooperative, appellant.
                                   ___ N.W.2d ___

                     Filed December 27, 2013.      No. S-13-091.

 1.	 Judgments: Appeal and Error. An appellate court independently reviews ques-
     tions of law decided by a lower court.
 2.	 Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual
     dispute presents a question of law.
 3.	 Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
     jurisdiction of an appeal, the party must be appealing from a final order or
     a judgment.
 4.	 Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue
     2008), an appellate court may review three types of final orders: (1) an order that
     affects a substantial right and that determines the action and prevents a judgment,
     (2) an order that affects a substantial right made during a special proceeding, and
     (3) an order that affects a substantial right made on summary application in an
     action after a judgment is rendered.
 5.	 Workers’ Compensation: Appeal and Error. A party can appeal an order from
     the Workers’ Compensation Court if it affects the party’s substantial right.
