S.B. v. Pfeifler, 920 N.W.2d 851

Petitioner S.B. filed for a sexual assault protection order under Neb. Rev. Stat. § 28-311.11 after an incident at a nightclub following a work event where she alleges Paul Pfeifler slapped her buttocks.
At the hearing, S.B. testified she felt a full slap to her buttocks; two coworkers reportedly saw the act; she did not see it herself.
Pfeifler admitted he intentionally contacted S.B. with the back of his hand to make her move, describing it as a "slight bump," and later apologized, saying he was sorry if he offended her.
The district court found S.B. credible, concluded by a preponderance of the evidence that a sexual assault protection order was warranted, and entered a one-year order enjoining Pfeifler from contacting or disturbing S.B.
Pfeifler moved for a new trial arguing insufficient evidence of (1) intentional sexual contact and (2) sexual arousal or gratification; the district court denied the motion and Pfeifler appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether there was sufficient evidence of sexual contact (touching of intimate parts)	S.B.: she felt a full-on slap to her buttocks and coworkers saw it; only Pfeifler was close by.	Pfeifler: admitted only a slight bump to move her; uncertain where he touched; not a slap.	Court accepted trial judge's credibility determination and held the evidence supports that Pfeifler slapped S.B.
Whether the contact could be reasonably construed as for sexual arousal or gratification (element of sexual contact)	S.B.: surrounding circumstances (slap to buttocks in nightclub) support inference of sexual purpose.	Pfeifler: contact was to move S.B. to see entertainment; no evidence he was sexually aroused or intended sexual gratification.	Court held a slap to a woman’s buttocks in that setting can reasonably be construed as for sexual arousal or gratification; protection order affirmed.

Mahmood v. Mahmud, 279 Neb. 390, 778 N.W.2d 426 (Neb. 2010) (protection order reviewed de novo as injunction analogue)
Torres v. Morales, 287 Neb. 587, 843 N.W.2d 805 (Neb. 2014) (on de novo review, appellate court may defer to trial judge’s credibility findings when evidence conflicts)
Elstun v. Elstun, 257 Neb. 820, 600 N.W.2d 835 (Neb. 1999) (protection order analogous to injunction)
Abboud v. Lakeview, Inc., 237 Neb. 326, 466 N.W.2d 442 (Neb. 1991) (party seeking injunction must prove contested facts by preponderance)
State v. Brauer, 287 Neb. 81, 841 N.W.2d 201 (Neb. 2014) (proof of sexual arousal or gratification generally inferred from surrounding circumstances)
State v. Osborne, 20 Neb. App. 553, 826 N.W.2d 892 (Neb. Ct. App. 2013) (conduct done for amusement may be reasonably construed as for sexual arousal/gratification)
State v. Charron, 226 Neb. 871, 415 N.W.2d 474 (Neb. 1987) (court may infer sexual purpose from defendant’s surrounding conduct and demeanor)