State v. Fuller

779 N.W.2d 112

279 Neb. 568

STATE of Nebraska, appellee, v. Lance FULLER, appellant.

No. S-09-494.

Supreme Court of Nebraska.

March 12, 2010.

Arthur C. Toogood, Adams County Public Defender, for appellant.

Jon Bruning, Attorney General, and Nathan A. Liss for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

NATURE OF CASE

Lance Fuller appeals from the order of the district court for Adams County which affirmed his county court conviction for third degree sexual assault. Fuller asserts that there was not sufficient evidence to support his conviction, because the acts for which he was charged and convicted do not meet the definition of "sexual contact" provided in Neb.Rev.Stat. § 28-318(5) (Reissue 2008). We affirm.

STATEMENT OF FACTS

Fuller was charged in the county court for Adams County on June 25, 2007. The complaint charged Fuller with third degree sexual assault in violation of Neb.Rev. Stat. § 28-320(1) (Reissue 2008), which provides in relevant part: "Any person who subjects another person to sexual contact ... without consent of the victim ... is guilty of sexual assault in either the second degree or third degree." Section 28-320(3) provides: "Sexual assault shall be in the third degree and is a Class I misdemeanor if the actor shall not have caused serious personal injury to the victim." At issue in this appeal is the meaning of "sexual contact" contained in a portion of § 28-318(5) which applies to § 28-320 and provides that "[s]exual contact shall also mean the touching by the victim of the actor's sexual or intimate parts or the clothing covering the immediate area of the actor's sexual or intimate parts when such touching is intentionally caused by the actor."

The complaint alleged that on May 5, 2007, Fuller subjected C.F. to sexual contact without consent; the complaint did not allege that C.F. suffered serious personal injury. On May 5, 2007, Fuller was 18 years old, and C.F., who is Fuller's half brother, was 9 years old.

A jury trial was conducted in county court. At trial, the stepfather of Fuller and C.F. testified that on the afternoon of May 5, 2007, he was watching television in the basement of the family home when he decided to go upstairs and check on Fuller and C.F. He found them in Fuller's bedroom, where he saw the two on the bed facing each other with a blanket over them. The stepfather asked what was going on and pulled the blanket off. He saw Fuller trying to pull up C.F.'s pants and saw that Fuller's pants were partially down. The stepfather told C.F. to go downstairs. The stepfather called his wife, who is the mother of Fuller and C.F., and when she arrived home, they called the police.

The police officer who investigated the incident testified at trial that Fuller told him that "something just kind of came over him and he threw a blanket over [C.F.] and himself" and that "he pulled [C.F.'s] pants down and rubbed his dick on [C.F.'s] leg." C.F. testified at trial that he and Fuller were sitting on Fuller's bed when Fuller "flipped the blankets over me and started—pulled down my pants to my ankles and started rubbing his penis on my shin." C.F. testified that Fuller did not touch him anywhere other than "the outside of the right shin" and that Fuller did not have C.F. touch Fuller anywhere.

After the State presented its evidence, Fuller moved for dismissal on the basis that the State's evidence failed to establish a necessary element of third degree sexual assault. Fuller argued that the evidence did not establish "sexual contact" as that term is defined in § 28-318(5). The court overruled the motion. After Fuller rested his defense, he moved for a directed verdict on the same basis, and the court overruled the motion. The jury found Fuller guilty of third degree sexual assault. Fuller's motion for a new trial was denied, and the county court sentenced him to 90 days in jail.

Fuller appealed his conviction to the district court for Adams County. On appeal, Fuller argued, inter alia, that there was not sufficient evidence to support his conviction, because the evidence failed to establish "sexual contact" as the term is defined in § 28-318(5) and applies to § 28-320. The district court rejected Fuller's arguments and affirmed his conviction and sentence.

Fuller appeals the district court's rulings which affirmed his conviction and sentence.

ASSIGNMENT OF ERROR

Fuller asserts that the district court erred by affirming the denial of his motions based on sufficiency of the evidence and by affirming his conviction, because under the definition of "sexual contact" in § 28-318(5), there was not sufficient evidence to support his conviction under § 28-320.

STANDARDS OF REVIEW

Regardless of whether the evidence is direct, circumstantial, or a combination thereof, and regardless of whether the issue is labeled as a failure to direct a verdict, insufficiency of the evidence, or failure to prove a prima facie case, the standard is the same: In reviewing a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction. State v. Banks, 278 Neb. 342, 771 N.W.2d 75 (2009).

The interpretation of a statute is a question of law for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. State v. Winslow, 274 Neb. 427, 740 N.W.2d 794 (2007).

ANALYSIS

Fuller asserts that the district court erred by affirming the denial of his motions based on sufficiency of the evidence and by affirming his conviction, because there was not sufficient evidence to support his conviction under § 28-320. He argues that the evidence does not support a finding that he subjected C.F. to "sexual contact" as the term is defined in § 28-318(5) and is applicable to § 28-320. Fuller specifically argues that rubbing his penis on C.F.'s shin was not "sexual contact" for purposes of § 28-320, because under § 28-318(5), the shin is not a "sexual or intimate part" and he did not cause C.F. to "touch" Fuller's sexual or intimate parts. We disagree with Fuller's reading of the statutes and conclude that the evidence supported Fuller's conviction and that the district court did not err.

Fuller was convicted of third degree sexual assault, which, under § 28-320(1), occurs when a person "subjects another person to sexual contact ... without consent of the victim." The evidence in this case showed that Fuller rubbed his penis on C.F.'s shin. Fuller does not argue that the evidence failed to show that such rubbing was without C.F.'s consent. Instead, as noted, he argues that rubbing his penis on C.F.'s shin was not "sexual contact" as that term is defined by the relevant statute.

For purposes of § 28-320 and other statutes, "sexual contact" is defined in § 28-318(5) as follows:

Sexual contact means the intentional touching of the victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts. Sexual contact shall also mean the touching by the victim of the actor's sexual or intimate parts or the clothing covering the immediate area of the actor's sexual or intimate parts when such touching is intentionally caused by the actor. Sexual contact shall include only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party. Sexual contact shall also include the touching of a child with the actor's sexual or intimate parts on any part of the child's body for purposes of sexual assault of a child under sections 28-319.01 and 28-320.01.

We note that § 28-318(5) contains four sentences describing conduct that is considered "sexual contact." The first sentence of the subsection refers to the actor's "intentional touching of the victim's sexual or intimate parts or ... the victim's clothing covering the immediate area of the victim's sexual or intimate parts." Fuller's conduct in this case is not described by the first sentence, because the term "intimate parts" is defined in § 28-318(2) to mean "the genital area, groin, inner thighs, buttocks, or breasts." The evidence in this case shows without contradiction that Fuller touched C.F.'s shin. The shin is not a sexual or intimate part under the statutory definition, and the evidence does not show that Fuller touched any part of C.F.'s body that would be considered a sexual or intimate part.

Similarly, the final sentence of § 28-318(5) does not apply to the evidence in this case. Although Fuller's rubbing his penis on C.F.'s shin would constitute "touching of a child with the actor's sexual or intimate parts on any part of the child's body," the final sentence of § 28-318(5) specifies that this definition applies to "sexual assault of a child under sections 28-319.01 and 28-320.01." In this case, Fuller was charged under § 28-320. He was not and, as Fuller notes, could not have been charged under Neb.Rev.Stat. § 28-319.01 (Reissue 2008) or Neb.Rev. Stat. § 28-320.01 (Reissue 2008), because both of those statutes apply only when "the actor is at least nineteen years of age or older" and Fuller was 18 years old at the...