In re Interest of Jordan B.
300 Neb. 355
| Neb. | 2018Background
- County Attorney filed a juvenile petition under Neb. Rev. Stat. § 43-247(2) alleging Jordan committed first degree sexual assault (sexual penetration) between Jan 25 and Nov 8, 2016.
- At the adjudication hearing the victim (age 5) testified to anal penetration on one occasion; other witnesses gave mixed testimony about opportunity and supervision; Jordan denied the allegations.
- The State moved before closing to amend or prosecute attempted first degree sexual assault; the court did not rule on that motion.
- The juvenile court found the State failed to prove first degree sexual assault but sua sponte adjudicated Jordan for third degree sexual assault (sexual contact not causing serious injury), a misdemeanor under § 28-320(3).
- Jordan appealed, arguing insufficient evidence for the unpled third degree offense and that adjudicating him on an uncharged, distinct offense violated due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a juvenile may be adjudicated of a crime not charged in the petition | State: court could amend or consider lesser offenses (attempted first degree) based on evidence; conviction on lesser may be permissible | Jordan: adjudication on third degree (uncharged, distinct) denied notice and chance to defend elements unique to that offense | Court reversed: adjudication on third degree sexual assault was plain error and violated due process because it was not alleged and is not a lesser-included offense of first degree |
| Whether third degree sexual assault is a lesser-included offense of first degree sexual assault | State: implied lesser-included or attempt could justify adjudication | Jordan: statutory elements differ—penetration vs. contact for sexual gratification—so not lesser-included | Court held: third degree is a separate, distinct offense under statutory-elements test and not a lesser-included offense of first degree |
| Whether appellate court may affirm on alternative lesser offense (attempted first degree) when State did not perfect statutory appeal | State: asks court to affirm on implicitly charged attempted first degree assault | Jordan: State failed to follow statutory exception/appeal procedures; cannot seek new adjudication on appeal | Court held: cannot consider State’s unperfected exceptions; appellate de novo review does not permit the court to make new fact findings or affirm on an unappealed ground |
| Whether adjudication on an uncharged offense in juvenile case violates due process | Jordan: In re Gault requires written notice of specific charges when freedom may be curtailed; adjudication on separate offense violates due process | State: argued notice may be implied from greater offense | Court held: Due process violated; juvenile must have notice of the specific offense charged and cannot be adjudicated for a distinct unpled crime |
Key Cases Cited
- In re Gault, 387 U.S. 1 (1967) (juveniles have due process rights including timely written notice of specific charges when liberty may be curtailed)
- Breed v. Jones, 421 U.S. 519 (1975) (double jeopardy attaches in juvenile delinquency proceedings once court begins to hear evidence)
- State v. Van, 268 Neb. 814 (2004) (requirements for sufficiency of charging instruments and elements approach)
- State v. James, 265 Neb. 243 (2003) (bench trials may convict of lesser-included offenses, but due process bars conviction of uncharged, distinct crimes)