In re Interest of K.M., 910 N.W.2d 82

Victim D.F., age 12, had a reported diagnosis of Asperger syndrome; alleged sexual penetration by K.M., who was 13 at time of alleged conduct.
Omaha PD interviewed both children; K.M. initially denied then admitted possible 2 cm anal penetration during a recorded interview.
Medical exam found anal fissures and constipation; examiner could not conclude assault from fissures and relied on hearsay statements admitted under medical-diagnosis exception.
Juvenile court adjudicated K.M. delinquent for conduct constituting first-degree sexual assault under Neb. Rev. Stat. § 28-319(1)(b) (victim mentally or physically incapable of resisting or appraising conduct).
Nebraska Court of Appeals reversed for insufficient evidence that D.F. lacked capacity or that K.M. knew or should have known of such incapacity; Nebraska Supreme Court granted further review.
Supreme Court affirmed the Court of Appeals, holding State failed to prove beyond a reasonable doubt that D.F. was incapable of resisting or appraising the sexual conduct.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether State proved victim lacked capacity to consent due to mental impairment	State relied on reported Asperger diagnosis and K.M.’s admission to show D.F. was incapable	K.M. argued State presented no evidence of severity of impairment or D.F.’s actual inability to resist or appraise	Held: Mental impairment must be severe; State did not prove D.F. lacked capacity beyond a reasonable doubt
Whether State proved K.M. knew or should have known of victim’s incapacity	State pointed to K.M.’s statements acknowledging D.F. had autism and was "mentally slower"	K.M. argued his awareness of diagnosis does not establish incapacity or its severity	Held: Knowledge of diagnosis alone insufficient to prove defendant knew victim lacked capacity
Whether expert testimony is required to prove mental incapacity	State contended expert should not be categorically required	K.M. contended lay evidence insufficient absent expert proof of severe impairment	Held: Expert testimony may be probative and sometimes necessary, but is not required in every case; sufficiency depends on facts
Standard of appellate review in juvenile adjudications	State suggested adult-criminal sufficiency standard applies	K.M. argued de novo juvenile review applies	Held: Appellate review in juvenile cases is de novo on the record; court disapproved applying adult criminal deferential standard in juvenile matters

State v. Rossbach, 264 Neb. 563 (addresses lack-of-capacity sexual assault and requirement of a significant abnormality)
Reavis v. Slominski, 250 Neb. 711 (discusses consent and consensus that impairment must be severe to negate consent)
Schafersman v. Agland Coop, 262 Neb. 215 (explains limits of expert testimony when trier of fact can draw conclusions from evidence)
State v. Sanders, 269 Neb. 895 (discusses intoxication as circumstances negating capacity)
State v. Freeman, 267 Neb. 737 (addresses unconsciousness and incapacity doctrines)