In re Interest of Jordan B.
913 N.W.2d 477
Neb.2018Background
- County attorney filed a juvenile petition under Neb. Rev. Stat. § 43-247(2) alleging Jordan B. committed first-degree sexual assault (sexual penetration) between Jan 25 and Nov 8, 2016.
- Allegations involved a 5-year-old victim in a home day care; evidence included the victim’s testimony, a videotaped forensic interview, and testimony from family and investigators; Jordan denied the acts.
- At the bench hearing 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 without serious injury).
- The court did not expressly find attempted first-degree sexual assault; the State had suggested attempted first-degree assault as an alternative at trial but did not amend the petition or perfect an appeal from the juvenile court’s order.
- Jordan appealed, claiming insufficient evidence and lack of notice for the adjudication on third-degree sexual assault.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether adjudicating Jordan for third-degree sexual assault (not charged) violated due process | The State conceded error but argued the adjudication could be sustained as attempted first-degree assault implicitly charged | Jordan argued he lacked notice and the petition charged only first-degree sexual assault; third-degree is a distinct offense | Reversed: adjudication on uncharged third-degree offense violated due process and was plain error |
| Whether third-degree sexual assault is a lesser-included offense of first-degree sexual assault | State suggested lesser-included or attempted first-degree might be appropriate | Jordan contended third-degree is not a lesser-included offense and thus could not be raised sua sponte | Held third-degree is not a lesser-included offense of first-degree under the statutory-elements test; touch for sexual gratification required for third-degree but not for first-degree penetration |
| Whether defendant had constitutionally adequate notice under In re Gault principles | State argued bench trial permits conviction of lesser offenses implicit in the charge | Jordan argued In re Gault requires specific written notice of the charges when liberty may be curtailed | Held due process required notice; adjudicating on a separate, distinct offense without notice violated juvenile due process protections |
| Whether appellate court could affirm on alternative ground (attempted first-degree) despite State not perfecting statutory exceptions appeal | State urged appellate affirmation on attempted-first-degree theory | Jordan argued State failed to follow statutory exception/appeal procedures and double jeopardy bars finding for first time on appeal | Held appellate court lacked jurisdiction to consider State’s unperfected exceptions; declined to make new factual finding on appeal |
Key Cases Cited
- In re Gault, 387 U.S. 1 (1967) (juveniles are entitled to notice and other due process protections when liberty may be curtailed)
- Breed v. Jones, 421 U.S. 519 (1975) (jeopardy attaches in juvenile adjudications when the court begins to hear evidence)
- State v. Van, 268 Neb. 814 (Neb. 2004) (requirements for a constitutionally sufficient information/indictment)
- State v. Dragoo, 277 Neb. 858 (Neb. 2009) (statutory-elements approach governs lesser-included-offense analysis)
- State v. James, 265 Neb. 243 (Neb. 2003) (bench trial discretion re: lesser-included offenses and notice considerations)