In re Interest of Gunner B., 980 N.W.2d 863

Victim M.M. was about 5 years old at the time of the alleged incident (about 6 at adjudication); respondent Gunner was about 15 at the time.
On July 31, 2020, Nicholas entered a basement and testified he saw Gunner sitting with his legs over M.M.’s legs and rubbing M.M.’s vagina with his fingers; Nicholas said Gunner had a visible erection through his shorts.
M.M. underwent a hospital sexual-assault exam showing no male DNA or semen; M.M. did not make statements implicating Gunner.
Gunner denied sexual contact, claiming M.M. was urinating into a floor drain and disputing Nicholas’ observations.
The Otoe County juvenile court adjudicated Gunner under Neb. Rev. Stat. § 43-247(1) for third-degree sexual assault (Neb. Rev. Stat. § 28-320); Gunner’s motion for new trial was denied and he appealed.

Issue	State's Argument	Gunner's Argument	Held
Whether the State proved M.M. was mentally/physically incapable of resisting or appraising the conduct and that Gunner knew or should have known	M.M.’s young age (5–6) shows incapacity; Gunner knew her age and relationship	Age alone insufficient; State failed to prove Gunner knew of incapacity	A child of 5–6 is indisputably incapable of appraising sexual conduct; Gunner, aware of her age and relationship, should have known
Whether touching was for sexual arousal or gratification	Nicholas’ testimony that Gunner had an erection while touching M.M. supports sexual purpose	No evidence of sexual arousal or motive; conduct could be nonsexual	Visible erection testimony supports finding the touching was for sexual arousal/gratification
Whether the evidence was sufficient to prove guilt beyond a reasonable doubt	Credible eyewitness testimony and observed arousal meet the State’s burden	Conflicts in testimony and omissions in contemporaneous texts create reasonable doubt	Juvenile court’s credibility determinations favored Nicholas; on de novo review the evidence is sufficient

In re Interest of K.M., 299 Neb. 636 (Neb. 2018) (defines lack-of-capacity defense and when expert proof may be required)
In re Interest of Kyle O., 14 Neb. App. 61 (Neb. Ct. App. 2005) (discusses factors required to infer sexual arousal or gratification in juvenile sexual-contact cases)
Com. v. Rhodes, 510 Pa. 537 (Pa. 1986) (held an 8-year-old is incapable, as a matter of law, of appreciating the nature of sexual conduct)