State v. K.M. (In re Interest K.M.)

299 Neb. 636

910 N.W.2d 82

IN RE INTEREST OF K.M., a child under 18 years of age.

State of Nebraska, appellee,

v.K.M., appellant.

No. S-16-1205.

Supreme Court of Nebraska.

Filed April 20, 2018.

Thomas C. Riley, Douglas County Public Defender, and Timothy F. Shanahan, Omaha, for appellant.

Donald W. Kleine, Douglas County Attorney, Anthony M. Hernandez, and Laura E. Lemoine, Senior Certified Law Student, for appellee.

Heavican, C.J., Cassel, Stacy, and Funke, JJ., and Colborn and Samson, District Judges.

Funke, J.

I. NATURE OF CASE

The separate juvenile court of Douglas County adjudicated K.M. as being a "juvenile who has committed an act which would constitute a felony under the laws of this state"¹ by committing first degree sexual assault, having "subject[ed] another person to sexual penetration [and] who knew or should have known that the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct."²

On appeal, the Nebraska Court of Appeals reversed the adjudication, finding insufficient evidence to uphold K.M.’s adjudication by proof beyond a reasonable doubt.³ The State petitioned for further review, which we granted. Because the State failed to prove beyond a reasonable doubt that K.M. knew or should have known that D.F., the alleged victim, "was mentally or physically incapable of resisting or appraising the nature of the conduct," we agree with the Court of Appeals and affirm its ruling.

II. BACKGROUND

Omaha Police Department Det. Kristine Love received a report in early 2016 from Child Protective Services that a school teacher had reported D.F.’s report of sexual contact with K.M. while at D.F.’s home. D.F. has Asperger syndrome.⁴ Love observed a forensic interview that was conducted with D.F. at Project Harmony, a child advocacy center, and then conducted her own interview with D.F.

After interviewing D.F., Love contacted K.M. at his school and asked him to speak with her in an interview at police headquarters, which K.M. agreed to do. Upon the completion of the interview, Love arrested K.M. for first degree sexual assault based on statements he made during the interview. K.M. turned 13 years old shortly after the alleged incident but before being interviewed by Love; D.F. was 12 years old.

The Douglas County Attorney filed a petition to adjudicate K.M. under § 43-247(2). The petition alleged that K.M. committed conduct that would constitute first degree sexual assault under § 28-319(1)(b) based on D.F.’s mental impairment. K.M. denied the allegation in the petition.

1. ADJUDICATION HEARING

On November 4, 2016, an adjudication hearing was held before the separate juvenile court of Douglas County. Because K.M. denied the petition’s allegation, the State had the burden to prove his guilt by proof beyond a reasonable doubt.⁵

(a) Video Interview

Love testified about the investigation and her interview with K.M. A video recording of the interview was entered into evidence.

The video shows that K.M. waived his Miranda⁶ rights at the beginning of the interview. Love advised K.M. of the allegations made by D.F., which K.M. initially denied. K.M. stated that he would never do that to D.F. because it would be wrong, explaining that D.F. has autism and does not know right from wrong and that it would be as if K.M. were corrupting him. After approximately 40 minutes, K.M. admitted that his penis may have penetrated D.F.’s anus approximately 2 centimeters.

(b) Other Evidence

The State also presented the testimony of Sarah Cleaver, a pediatric nurse practitioner at Project Harmony. Cleaver performed a medical examination of D.F. at Project Harmony’s medical clinic and authored a report of her examination of D.F. In doing so, she relied on her examination; a medical history from D.F.’s mother, which included the fact that D.F. has Asperger syndrome and attention deficit hyperactivity disorder ; and D.F.’s statements in the Child Protective Services report and the Project Harmony forensic interview. Cleaver’s diagnosis of D.F. was suspected child sexual abuse, constipation, and anal fissures. She attributed D.F.’s anal fissures to his history of constipation, but said that they could have also been caused by the penile-anal penetration that he reported.

The court admitted Cleaver’s report, which included D.F.’s allegations from the Child Protective Services report and Cleaver’s examination, over K.M.’s objection on hearsay and the Confrontation Clause. The court overruled the objections on the basis of the hearsay exception for statements made for the purpose of medical diagnosis.

On cross-examination, Cleaver said that she thought the most likely explanation for D.F.’s anal fissures was his constipation, as D.F. reported to her he had a large stool and then his bottom began to bleed. She agreed that she could not reach any conclusion about sexual assault from the anal fissures. She did not give any testimony or opinion about D.F.’s mental condition beyond stating that this diagnosis had been reported to her.

Neither D.F. nor K.M. testified at the hearing. And no specific evidence about D.F.’s Asperger syndrome diagnosis or mental condition was offered at the hearing.

The juvenile court issued an order adjudicating K.M. under § 43-247(2), finding the State had proved its case by proof beyond a reasonable doubt. K.M. appealed.

2. COURT OF APPEALS’ OPINION

On appeal to the Court of Appeals, K.M.’s sole assignment of error was that "[t]he Juvenile Court erred in finding that [K.M.] subjected D.F. ... to sexual contact because the evidence presented at trial was insufficient to support a finding of guilt."

The Court of Appeals concluded that the State had proved beyond a reasonable doubt that K.M. subjected D.F. to sexual penetration, relying on K.M.’s confession in the interview. But it concluded that the State had failed to prove that K.M. "knew or should have known that [D.F.] was mentally or physically incapable of resisting or appraising the nature of his conduct."⁷

The Court of Appeals said that to prove a sexual assault under § 28-319(1)(b), the State must establish (1) a significant abnormality, such as severe intoxication or other substantial mental or physical impairment, on the part of the alleged victim and (2) knowledge of the abnormality on the part of the alleged attacker.

The court further said:

[T]here was no evidence presented by the State regarding where [D.F.’s] autism fell on the autism spectrum, whether [D.F.’s] autism would render [him] incapable of resisting or appraising the nature of [K.M.’s] conduct, and whether [K.M.] knew or should have known of [D.F.’s] inability to resist or appraise the nature of [K.M.’s] conduct.⁸

It concluded that the State had failed to prove its allegation beyond a reasonable doubt, because it did not present any evidence of D.F.’s inability to resist or appraise the nature of his conduct, beyond reports that D.F. had autism. As a result, the Court of Appeals reversed the adjudication.

The State petitioned for further review, which we granted.

III. ASSIGNMENTS OF ERROR

The State argues that the Court of Appeals "erred in determining that the State failed to adduce sufficient evidence that [K.M.] knew or should have known that [D.F.] was mentally or physically incapable of resisting or appraising the nature of his conduct."

IV. 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.⁹ When the evidence is in conflict, however, an appellate court may give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other.¹⁰

V. ANALYSIS

Before we reach the merits of this matter, we will address a proposition of law articulated by the State during oral argument. The State asserted that on a claim of insufficiency of the evidence, an appellate court will not set aside a guilty verdict in a juvenile case where such verdict is supported by relevant evidence. The State seems to be importing into juvenile matters a standard of review applicable in adult criminal matters.

It is correct that Nebraska appellate courts have imported criminal standards into juvenile cases on other instances. For example, we have applied the same standard of review for a motion to suppress filed by a juvenile in juvenile court.¹¹ In ordering restitution, juvenile courts are to consider factors similar to those utilized in the criminal restitution statute.¹² The Court of Appeals has applied the criminal standard for withdrawal of a plea in the context of a request to withdraw an admission in a juvenile proceeding.¹³

However, in only one juvenile matter, In re Interest of McManaman ,¹⁴ did we apply a standard of review applicable in adult criminal proceedings. In that matter, we stated that we

" ‘will not interfere with a verdict of guilty based on conflicting evidence unless, as a matter of law, the evidence is so lacking in probative force that it is insufficient to support the finding of guilt beyond a reasonable doubt. ... A guilty verdict of the fact finder in a criminal case must be sustained if there is substantial evidence, taking the view most favorable to the State, to support it.’ "¹⁵

Instead, in juvenile matters, we have routinely held that our review is de novo on the record and that an appellate court is required to reach a conclusion independent of the lower courts’ findings.¹⁶ We find this de novo standard of review to be most applicable to juvenile matters. As a result, we take this opportunity to disapprove of our holding in In re Interest of McManaman as it relates to importing into a juvenile matter the standard of review used in adult criminal proceedings.

In turning to the merits of the instant matter, § 43-247 defines and delimits the boundaries of the jurisdiction of juvenile courts. Under § 43-247(2), juvenile courts may exercise jurisdiction over "[a]ny juvenile who has committed an act which would constitute a...