State v. Jordan B. (In re Interest of Jordan B.)

Decision Date22 June 2018
Docket NumberNo. S-17-1092.,S-17-1092.
Citation913 N.W.2d 477,300 Neb. 355
Parties IN RE INTEREST OF JORDAN B., a child under 18 years of age. State of Nebraska, appellee, v. Jordan B., appellant.
CourtNebraska Supreme Court

Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom & Stehlik, P.C., L.L.O., Grand Island, for appellant.

Matthew C. Boyle, Deputy Hall County Attorney, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

Heavican, C.J.

I. NATURE OF CASE

In adjudication proceedings under Neb. Rev. Stat. § 43-247(2) (Reissue 2016), the only law violation alleged in the petition was first degree sexual assault. After a hearing, the juvenile court found that the State failed to prove the juvenile, Jordan B., committed acts constituting first degree sexual assault. Nevertheless, the juvenile court adjudicated Jordan based on its finding that he committed third degree sexual assault. The court believed that third degree sexual assault was a lesser-included offense of first degree sexual assault, and could thus be raised sua sponte. Because third degree sexual assault is not a lesser-included offense of first degree sexual assault, we reverse, and remand with directions.

II. BACKGROUND
1. JUVENILE PETITION

The county attorney filed a petition asking the juvenile court to adjudicate Jordan as a juvenile who committed an act that would constitute a felony under the laws of this State pursuant to § 43-247(2). The felony alleged was first degree sexual assault as described in Neb. Rev. Stat. § 28-319 (Reissue 2016). The petition alleged that Jordan committed such acts on or between January 25 and November 8, 2016.

2. EVIDENCE AT HEARING

Jordan was 17 years old at the time of the hearing on the petition. He lived at home with his mother, a childcare provider (the provider), as well as with his 19-year-old brother, Tyler B. The provider operates a daycare out of her home, taking care of eight children. Jordan’s alleged victim was a child in the provider’s care, who was cared for Mondays through Fridays during the time period alleged in the petition. The victim’s older brother also attended the daycare when he was not in school.

(a) State’s Evidence

The State’s evidence consisted of the testimony of the victim, her mother, her older brother, and the investigator who interviewed Jordan regarding the allegations.

The victim was 5 years old at the time of the hearing. The victim testified that on at least one occasion, Jordan took her to his room downstairs, shut the door, took off her shorts and underwear, had her lie down on the bed and put her legs up, and "sticked his wiener in my butt." The victim described her "butt" as "where I pee out and that’s where I poop." She described "wiener" as "the part that boys pee out of." The victim said it hurt "really bad." The victim’s testimony was inconsistent as to whether this had occurred once or twice, but she ultimately testified that it occurred only once.

The victim’s brother was 8 years old at the time of the hearing. The brother testified the victim told him that while in Jordan’s room, Jordan "stuck his wiener up her butt" and that Jordan told the victim she should not tell anybody. The brother testified that sometimes, the provider left the house during daycare hours to run errands. At such times, Jordan’s grandmother usually would watch the children. The brother reported that sometimes Jordan or Tyler would watch the children, but that whenever Jordan and Tyler were home, either the provider or the grandmother was also there. However, when the victim’s brother was recalled to testify after his mother’s testimony, he stated that there were times when neither the provider nor the grandmother was at the daycare and Tyler was responsible for watching the children.

The victim’s mother testified that on November 7, 2016, the victim told her that "Jordan tried to stick his wiener in her butt" and that Jordan had told the victim not to tell anybody. On cross-examination, the mother reiterated that the victim told her that Jordan had "tried" to "stick his wiener in her butt" and that the victim had never told her whether there was penetration. The mother testified that the victim told her this attempt occurred only one time.

The mother worked for the Department of Health and Human Services, investigating allegations of child abuse and neglect, including sexual abuse. She told her children that her "job is to help kids." She testified that she did not otherwise discuss her job with her children. She did sometimes discuss her work with her husband when the children were at home, but she testified that she did not discuss things that were confidential. Thus, the mother affirmed that she had never discussed around her family the specific allegations of any cases she worked on.

The investigator testified that he interviewed Jordan on November 17, 2016. Jordan consistently denied the allegations against him. Jordan speculated that the victim could have been angry with him for correcting her at some point. Jordan further told the investigator that if something of that nature had occurred to the victim, it was someone else who committed the alleged acts.

(b) Defense

Jordan testified in his own defense and presented the testimony of the provider, the grandmother, and Tyler. Jordan also entered into evidence the video of the interview of the victim conducted at a child advocacy center.

The video was offered by Jordan to show the victim stated that the assault occurred twice, contradicting her trial testimony. The video reflects that in her interview, the victim said that Jordan had "put his wiener in [her] butt" and that then she "kicked him because it was too hard." The victim described that this happened in Jordan’s room after he had her lie down on her back in his bed and had taken her shorts and underwear off. At the time, the provider was not home and Jordan and Tyler were watching the children.

The victim repeatedly said this occurred twice, once when she was 4 years old and once when she was 5 years old.

Jordan testified that he was never alone with the victim and denied committing any of the alleged acts. Jordan denied touching the victim in any way. Jordan testified that he was never home alone with the daycare children. When the provider was not there, either the grandmother or Tyler was in charge of the children. Though Jordan sometimes watched certain daycare children on the weekends, he never babysat the victim. Jordan explained that he told the investigator it must have been someone else who had sexually assaulted the victim, based on things he had heard the victim’s mother say. Due to a hearsay objection, Jordan did not elaborate.

The provider testified that she never left Jordan alone with the daycare children. She explained that it is part of the licensing requirements that she never leave the children alone with anyone younger than 18 years of age. When she has to leave the home while children are in her care, she leaves them with the grandmother, who is also a licensed daycare provider, or with Tyler.

The provider denied there was ever any occasion in which Jordan could have been alone in his bedroom with any of the daycare children. The provider stated that she, the grandmother, and Tyler had been trained to keep all eight children in sight at all times. Thus, there was never a time when she was home that the victim was out of her sight.

The provider described that when the children are outside, one adult is outside and another is inside the house, so that children running inside to use the restroom or get a snack are never unsupervised. Specifically, there was never a time when Jordan would have been in the house alone with a child while she was outside with other children. The provider testified that sometimes, the victim’s mother shared with her the details of cases she worked on at the Department of Health and Human Services.

The grandmother testified that during the time in question, she had shut down her daycare due to her husband’s health. Therefore, approximately three or four times a month, she was able to assist the provider in caring for the daycare children. The grandmother testified that there was no occasion when she worked at the daycare that Jordan was also present in the home.

Tyler testified that he helped with the daycare once or twice a week and that there was never a time when Tyler had primary care of the children that both Jordan and the victim were there. Also, when Tyler was home, while the provider had primary care of the children, he never saw the victim go with Jordan into his room. He never saw Jordan interact with the victim at all.

3. MOTION TO AMEND PETITION AND ARGUMENT

Before closing arguments, the State asked the court to amend the petition to conform to the evidence. The county attorney explained, "I believe it more appropriate maybe—a charge in this case, based off the evidence that was elicited at trial, would be attempted sexual assault in the first degree." Jordan’s counsel objected. The court never ruled on the motion, but stated its belief that the court had "authority sua sponte to consider less or [sic] included defenses in a trial to the bench."

The county attorney proceeded to argue that the State met its burden with regard to a charge of attempted first degree sexual assault. Jordan’s attorney argued that the State had not met its burden for adjudication under the petition, noting, among other things, the lack of opportunity. The juvenile court took the matter under advisement.

4. TRIAL COURT’S ORDER

The court adjudicated Jordan as a child within the meaning of § 43-247(1). The court found that the State failed to meet its burden of proof with respect to the offense of first degree sexual assault as charged. Nevertheless, the court raised sua sponte the "lesser included offense" of third degree sexual assault, contrary to Neb. Rev. Stat. § 28-320(1) and (3) (Reissue 2016), a Class I misdemeanor. The court explained that it found the...

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