State v. Charron

• Decision Date: 20 November 1987
• Docket Number: No. 87-175,87-175
• Citation: 415 N.W.2d 474,226 Neb. 871
• Parties: STATE of Nebraska, Appellee, v. Kenneth R. CHARRON, Appellant.
• Court: Nebraska Supreme Court

Page 474

415 N.W.2d 474

226 Neb. 871

STATE of Nebraska, Appellee, v.Kenneth R. CHARRON, Appellant.

No. 87-175.

Supreme Court of Nebraska.

Nov. 20, 1987.

Syllabus by the Court

1.Convictions: Appeal and Error.In determining whether the evidence is sufficient to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of the explanations, or weigh the evidence.Such matters are for the trier of fact, and the conviction must be sustained if, taking the view of the evidence most favorable to the State, there is sufficient evidence to support the conviction.

2.Sexual Assault.In order for one to commit the offense of sexual assault in either the second or third degree, the victim must be subjected to actual sexual contact.

3.Sexual Assault: Proof.Third degree sexual assault does not require proof of actual sexual arousal or gratification, but only circumstances and conduct which could reasonably be construed as being for such purpose.

Thomas M. Kenney, Douglas County Public Defender, and Timothy P. Burns, Omaha, for appellant.

Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and GRANT, JJ., and BRODKEY, J., Retired, and COLWELL, District Judge, Retired.

BOSLAUGH, Justice.

The defendant was convicted of third degree sexual assault, sentenced to 90 days in jail, and fined $500.Upon appeal to the district court the judgment was affirmed.Upon appeal to this courtthe defendant contends the evidence was insufficient to support the conviction.

In determining whether the evidence is sufficient to sustain a conviction, it is not the province of this court to resolve conflicts in the evidence, pass on the credibility of witnesses, determine the plausibility of the explanations, or weigh the evidence.Such matters are for the trier of fact, and the conviction must be sustained if, taking the view of the evidence most favorable to the State, there is sufficient evidence to support the conviction.

State v. Williams, 226 Neb. p. 647, 648, 413 N.W.2d 907, 908(1987);State v. Duff, 226 Neb. p. 567, 412 N.W.2d 843(1987);State v. Moore, 226 Neb. p. 347, 411 N.W.2d 345(1987);State v. Jacobs, 226 Neb. p. 184, 410 N.W.2d 468(1987);State v. Schreck, 226 Neb. p. 172, 409 N.W.2d 624(1987).

Sexual assault, third degree, is defined in Neb. Rev.Stat. § 28-320(Reissue 1985):

(1) Any person who subjects another person to sexual contact and (a) overcomes the victim by force, threat of force, express or implied, coercion, or deception ... is guilty of sexual assault in either the second degree or third degree.

....

(3) 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.

Sexual contact is defined in Neb. Rev.Stat. § 28-318(Reissue 1985) as:

(5) Sexual contact shall mean 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.

(Emphasis supplied.)

In order for one to commit the offense of sexual assault in either the second or third degree, the victim must be subjected to actual sexual contact.State v. Swoopes, 223 Neb. 914, 395 N.W.2d 500(1986).

The record shows that on June 4, 1986, at about 12 noon, the victim and her 2-year-old son were at the Sears store in the Crossroads shopping...