841 N.W.2d 201
Neb.2013Background
- Nathan Brauer, a friend of the family, babysat J.N. (age 4). Parents later restricted contact after J.N. made statements about being touched.
- At a daycare meeting and later in a forensic interview, J.N. reported that Brauer had touched his “peenie” once, over clothing, with two fingers; J.N. said it was brief and happened at Brauer’s house.
- Law enforcement interviewed Brauer; he initially denied contact, then admitted poking J.N. in the groin with two fingers and made statements describing an impulse, a “spark,” or a hormonal/adrenaline reaction.
- Brauer was charged with sexual assault of a child in the third degree (sexual contact with a child ≤14). He waived a jury and was convicted in a bench trial.
- The sole contested legal issue: whether the brief two-finger poke over clothing could be “sexual contact,” i.e., conduct that can be reasonably construed as for the actor’s sexual arousal or gratification under Neb. Rev. Stat. § 28-318(5).
- The trial court credited Brauer’s admissions and surrounding circumstances and found guilt; Brauer appealed on sufficiency grounds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence was sufficient to prove the touch was “sexual contact” (i.e., for purpose of sexual arousal/gratification) | State: Brauer’s admissions (describing an impulse/release/spark), prior denials then admission, the unsupervised context, and victim behavior supported a rational factfinder’s finding of sexual purpose | Brauer: single, fleeting two-finger poke over clothing was nonsexual — a reflexive, ill-advised reaction to the child hitting him in the groin; no indicia of sexual arousal (no erection, no threats, no grooming) | Affirmed: viewing evidence most favorably to the State, a rational trier of fact could find beyond a reasonable doubt that the touch was sexual contact, primarily based on Brauer’s incriminating statements and surrounding facts |
Key Cases Cited
- State v. Osborne, 286 Neb. 154, 835 N.W.2d 664 (Neb. 2013) (recent Nebraska decision addressing sufficiency review for sexual-contact issues)
- State v. Lamb, 280 Neb. 738, 789 N.W.2d 918 (Neb. 2010) (standard for appellate review of bench-trial convictions; do not reweigh evidence)
- In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (Neb. Ct. App. 2005) (juvenile case finding insufficient evidence of sexual contact; reviewed de novo)
- State v. Powell, 62 Wash. App. 914, 816 P.2d 86 (Wash. Ct. App. 1991) (reversed conviction where touches were susceptible to innocent explanations and defendant denied sexual purpose)