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IN RE INTEREST OF JORDAN B.

Cite as 300 Neb. 355

In re Interest of Jordan B., a

under 18 years of age

State of Nebraska, appellee,

v. Jordan B., appellan

___ N.W.2d ___

Filed June 22, 2018. No. S-17-1092.

1. Constitutional Law: Due Process: Appeal and Error. Whether the 

procedures given an individual comport with constitutional requirements 

for procedural due process presents a question of law that an appellate 

court reviews independently of the lower court.

2. Juvenile Courts: Appeal and Error. An appellate court reviews juvenile cases de novo on the record and reaches its conclusions independently of the juvenile court’s findings.

3. Lesser-Included Offenses. Whether a crime is a lesser-included offense 

is determined by a statutory elements approach and is a question of law.

4. Appeal and Error: Words and Phrases. Plain error exists where there 

is an error, plainly evident from the record but not complained of at 

trial, which prejudicially affects a substantial right of a litigant and is of 

such a nature that to leave it uncorrected would cause a miscarriage of 

justice or result in damage to the integrity, reputation, and fairness of the 

judicial process.

5. Indictments and Informations. In a criminal case, due process 

requires that an information must inform the accused with reasonable certainty of the crime charged so that the accused may prepare a 

defense to the prosecution and, if convicted, be able to plead the judgment of conviction on such charge as a bar to a later prosecution for 

the same offense.

6. ____. Generally, to charge a defendant with the commission of a criminal offense, the information or complaint must allege each statutorily 

essential element of the crime charged, expressed in the words of the 

statute which prohibits the conduct charged as a crime, or in language 

equivalent to the statutory terms defining the crime charged.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

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7. Indictments and Informations: Lesser-Included Offenses: Notice. 

The defendant is by implication charged with the lesser offense when 

charged with the greater offense, and due process is satisfied so long 

as the nature of the crime charged was sufficient to give the defendant 

notice that he or she could be convicted of the lesser-included offense.

8. Juvenile Courts: Criminal Law. Juvenile proceedings are not criminal prosecutions.

9. Juvenile Courts: Due Process. It violates due process to adjudicate 

a juvenile, whose freedom could be curtailed, of committing acts constituting a separate and distinct offense for which the juvenile was not 

specifically charged.

10. Sexual Assault. Third degree sexual assault is a separate and distinct 

offense from the crime of first degree sexual assault.

11. Juvenile Courts: Double Jeopardy. Jeopardy attaches in juvenile 

delinquency proceedings when the juvenile court, as the trier of the 

facts, begins to hear evidence.

12. Statutes: Appeal and Error. Appeals under specific statutory provisions require strict adherence to the statute’s procedures.

13. Juvenile Courts: Jurisdiction: Appeal and Error. An appellate court 

lacks jurisdiction to consider the State’s exceptions that fail to fully comply with the statutory procedures outlined in Neb. Rev. Stat. § 29-2317 

(Reissue 2016), as incorporated by Neb. Rev. Stat. § 43-2,106.01 

(Reissue 2016).

Appeal from the County Court for Hall County: Timothy 

Hoeft, Judge. Reversed and remanded with directions

Mitchell C. Stehlik, of Lauritsen, Brownell, Brostrom & 

Stehlik, P.C., L.L.O., for appellant.

Matthew C. Boyle, Deputy Hall County Attorney, for 

appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy

Papik, J

Heavican, 

I. NATURE OF CASE

In adjudication proceedings under Neb. Rev. Stat. 

§ 43-247(2) (Reissue 2016), the only law violation alleged in 

the petition was first degree sexual assault. After a hearing, 
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the juvenile court found that the State failed to prove the juvenile, Jordan B., committed acts constituting first degree sexual 

assault. Nevertheless, the juvenile court adjudicated Jordan 

based on its finding that he committed third degree sexual 

assault. The court believed that third degree sexual assault was 

a lesser-included offense of first degree sexual assault, and 

could thus be raised sua sponte. Because third degree sexual 

assault is not a lesser-included offense of first degree sexual 

assault, we reverse, and remand with directions.

II. BACKGROUND

1. Juvenile Pe

The county attorney filed a petition asking the juvenile court 

to adjudicate Jordan as a juvenile who committed an act that 

would constitute a felony under the laws of this State pursuant to § 43-247(2). The felony alleged was first degree sexual 

assault as described in Neb. Rev. Stat. § 28-319 (Reissue 

2016). The petition alleged that Jordan committed such acts on 

or between January 25 and November 8, 2016.

2. Evidence at 

Jordan was 17 years old at the time of the hearing on the 

petition. He lived at home with his mother, a childcare provider (the provider), as well as with his 19-year-old brother, 

Tyler B. The provider operates a daycare out of her home, taking care of eight children. Jordan’s alleged victim was a child 

in the provider’s care, who was cared for Mondays through 

Fridays during the time period alleged in the petition. The victim’s older brother also attended the daycare when he was not 

in school.

(a) State’s Evidence

The State’s evidence consisted of the testimony of the victim, her mother, her older brother, and the investigator who 

interviewed Jordan regarding the allegations.

The victim was 5 years old at the time of the hearing. The 

victim testified that on at least one occasion, Jordan took her 
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to his room downstairs, shut the door, took off her shorts and 

underwear, had her lie down on the bed and put her legs up, 

and “sticked his wiener in my butt.” The victim described 

her “butt” as “where I pee out and that’s where I poop.” She 

described “wiener” as “the part that boys pee out of.” The 

victim said it hurt “really bad.” The victim’s testimony was 

inconsistent as to whether this had occurred once or twice, but 

she ultimately testified that it occurred only once.

The victim’s brother was 8 years old at the time of the 

hearing. The brother testified the victim told him that while in 

Jordan’s room, Jordan “stuck his wiener up her butt” and that 

Jordan told the victim she should not tell anybody. The brother 

testified that sometimes, the provider left the house during daycare hours to run errands. At such times, Jordan’s grandmother 

usually would watch the children. The brother reported that 

sometimes Jordan or Tyler would watch the children, but that 

whenever Jordan and Tyler were home, either the provider or 

the grandmother was also there. However, when the victim’s 

brother was recalled to testify after his mother’s testimony, he 

stated that there were times when neither the provider nor the 

grandmother was at the daycare and Tyler was responsible for 

watching the children.

The victim’s mother testified that on November 7, 2016, 

the victim told her that “Jordan tried to stick his wiener in her 

butt” and that Jordan had told the victim not to tell anybody. 

On cross-examination, the mother reiterated that the victim told 

her that Jordan had “tried” to “stick his wiener in her butt” and 

that the victim had never told her whether there was penetration. The mother testified that the victim told her this attempt 

occurred only one time.

The mother worked for the Department of Health and 

Human Services, investigating allegations of child abuse and 

neglect, including sexual abuse. She told her children that her 

“job is to help kids.” She testified that she did not otherwise 

discuss her job with her children. She did sometimes discuss 

her work with her husband when the children were at home, 
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but she testified that she did not discuss things that were confidential. Thus, the mother affirmed that she had never discussed 

around her family the specific allegations of any cases she 

worked on.

The investigator testified that he interviewed Jordan on 

November 17, 2016. Jordan consistently denied the allegations 

against him. Jordan speculated that the victim could have been 

angry with him for correcting her at some point. Jordan further told the investigator that if something of that nature had 

occurred to the victim, it was someone else who committed the 

alleged acts.

(b) Defense

Jordan testified in his own defense and presented the testimony of the provider, the grandmother, and Tyler. Jordan also 

entered into evidence the video of the interview of the victim 

conducted at a child advocacy center.

The video was offered by Jordan to show the victim stated 

that the assault occurred twice, contradicting her trial testimony. The video reflects that in her interview, the victim said 

that Jordan had “put his wiener in [her] butt” and that then she 

“kicked him because it was too hard.” The victim described 

that this happened in Jordan’s room after he had her lie down 

on her back in his bed and had taken her shorts and underwear 

off. At the time, the provider was not home and Jordan and 

Tyler were watching the children. The victim repeatedly said 

this occurred twice, once when she was 4 years old and once 

when she was 5 years old.

Jordan testified that he was never alone with the victim 

and denied committing any of the alleged acts. Jordan denied 

touching the victim in any way. Jordan testified that he was 

never home alone with the daycare children. When the provider 

was not there, either the grandmother or Tyler was in charge 

of the children. Though Jordan sometimes watched certain 

daycare children on the weekends, he never babysat the victim. 

Jordan explained that he told the investigator it must have been 
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someone else who had sexually assaulted the victim, based on 

things he had heard the victim’s mother say. Due to a hearsay 

objection, Jordan did not elaborate.

The provider testified that she never left Jordan alone with 

the daycare children. She explained that it is part of the licensing requirements that she never leave the children alone with 

anyone younger than 18 years of age. When she has to leave 

the home while children are in her care, she leaves them with 

the grandmother, who is also a licensed daycare provider, or 

with Tyler.

The provider denied there was ever any occasion in which 

Jordan could have been alone in his bedroom with any of 

the daycare children. The provider stated that she, the grandmother, and Tyler had been trained to keep all eight children in 

sight at all times. Thus, there was never a time when she was 

home that the victim was out of her sight.

The provider described that when the children are outside, 

one adult is outside and another is inside the house, so that 

children running inside to use the restroom or get a snack 

are never unsupervised. Specifically, there was never a time 

when Jordan would have been in the house alone with a child 

while she was outside with other children. The provider testified that sometimes, the victim’s mother shared with her the 

details of cases she worked on at the Department of Health and 

Human Services.

The grandmother testified that during the time in question, 

she had shut down her daycare due to her husband’s health. 

Therefore, approximately three or four times a month, she was 

able to assist the provider in caring for the daycare children. 

The grandmother testified that there was no occasion when 

she worked at the daycare that Jordan was also present in 

the home.

Tyler testified that he helped with the daycare once or 

twice a week and that there was never a time when Tyler had 

primary care of the children that both Jordan and the victim 

were there. Also, when Tyler was home, while the provider 
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had primary care of the children, he never saw the victim go 

with Jordan into his room. He never saw Jordan interact with 

the victim at all.

3. Motion to Amend

and Argum

Before closing arguments, the State asked the court to 

amend the petition to conform to the evidence. The county 

attorney explained, “I believe it more appropriate maybe — 

a charge in this case, based off the evidence that was elicited at trial, would be attempted sexual assault in the first 

degree.” Jordan’s counsel objected. The court never ruled on 

the motion, but stated its belief that the court had “authority 

sua sponte to consider less or [sic] included defenses in a trial 

to the bench.”

The county attorney proceeded to argue that the State met 

its burden with regard to a charge of attempted first degree 

sexual assault. Jordan’s attorney argued that the State had 

not met its burden for adjudication under the petition, noting, 

among other things, the lack of opportunity. The juvenile court 

took the matter under advisement.

4. Trial Court’s Or

The court adjudicated Jordan as a child within the meaning of § 43-247(1). The court found that the State failed 

to meet its burden of proof with respect to the offense of 

first degree sexual assault as charged. Nevertheless, the court 

raised sua sponte the “lesser included offense” of third degree 

sexual assault, contrary to Neb. Rev. Stat. § 28-320(1) and (3) 

(Reissue 2016), a Class I misdemeanor. The court explained 

that it found the victim credible, that the State had proved 

sexual contact, that Jordan knew or should have known that the 

victim was incapable of appraising the nature of his conduct, 

and that the conduct did not cause serious personal injury to 

the victim.

Jordan appeals the adjudication.
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III. ASSIGNMENT OF ERROR

Jordan assigns and argues on appeal that the evidence was 

insufficient for the juvenile court to adjudicate him on the 

“lesser included offense of third degree sexual assault.”

IV. STANDARD OF REVIEW

[1] Whether the procedures given an individual comport 

with constitutional requirements for procedural due process 

presents a question of law that an appellate court reviews independently of the lower court.1

[2] An appellate court reviews juvenile cases de novo on 

the record and reaches its conclusions independently of the 

juvenile court’s findings.2 When the evidence is in conflict, 

however, an appellate court may give weight to the fact that the 

lower court observed the witnesses and accepted one version of 

the facts over the other.3

[3] Whether a crime is a lesser-included offense is determined by a statutory elements approach and is a question 

of law.4

V. ANALYSIS

[4] We hold that the juvenile court plainly erred by adjudicating Jordan on a law violation that was not pled and was 

not a lesser-included offense of the crime pled. Plain error 

may be asserted for the first time on appeal or noted by the 

appellate court on its own motion.5 Plain error exists where 

there is an error, plainly evident from the record but not 

complained of at trial, which prejudicially affects a substantial right of a litigant and is of such a nature that to leave it 

uncorrected would cause a miscarriage of justice or result in 

1 See In re Interest of Alan L., 294 Neb. 261, 882 N.W.2d 682 (2016).

2 In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (2018).

3 Id.

4 State v. Dragoo, 277 Neb. 858, 765 N.W.2d 666 (2009).

5 State v. Keup, 265 Neb. 96, 655 N.W.2d 25 (2003).
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damage to the integrity, reputation, and fairness of the judicial process.6

The federal Constitution provides that under the Due Process 

Clause, no state “shall . . . deprive any person of life, liberty, 

or property, without due process of law.”7 Neb. Const. art. 

I, § 3, similarly provides that “[n]o person shall be deprived 

of life, liberty, or property, without due process of law, nor 

be denied equal protection of the laws.” We have interpreted 

the Nebraska Constitution’s due process and equal protection 

clauses to afford protections coextensive to those of the federal Constitution.8

[5] In a criminal case, due process requires that an information must inform the accused with reasonable certainty of 

the crime charged so that the accused may prepare a defense 

to the prosecution and, if convicted, be able to plead the 

judgment of conviction on such charge as a bar to a later 

prosecution for the same offense.9 We have said that an indictment or information meets all constitutional requirements 

(1) if it shows that the acts which the defendant is charged 

with committing amounted to a crime which the court had 

power to punish and that it was committed within the territorial jurisdiction of the court, (2) if it informs the defendant of the nature of the charge against him or her, and (3) 

if it constitutes a record from which it can be determined 

whether a subsequent proceeding is barred by the former 

adjudication.10

[6] Generally, to charge a defendant with the commission 

of a criminal offense, the information or complaint must 

allege each statutorily essential element of the crime charged, 

6 Houser v. American Paving Asphalt, 299 Neb. 1, 907 N.W.2d 16 (2018).

7 U.S. Const. amend. XIV, § 1.

8 Keller v. City of Fremont, 280 Neb. 788, 790 N.W.2d 711 (2010).

9 See State v. Van, 268 Neb. 814, 688 N.W.2d 600 (2004).

10 State v. Piskorski, 218 Neb. 543, 357 N.W.2d 206 (1984); Cowan v. State, 

140 Neb. 837, 2 N.W.2d 111 (1942).
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expressed in the words of the statute which prohibits the 

conduct charged as a crime, or in language equivalent to 

the statutory terms defining the crime charged.11 Where an 

information alleges the commission of a crime using language of the statute defining that crime or terms equivalent to 

such statutory definition, the charge is sufficient.12 However, 

when the charging of a crime in the language of the statute 

leaves the information insufficient to reasonably inform the 

defendant as to the nature of the crime charged, additional 

averments must be included to meet the requirements of 

due process.13

[7] Due process does not generally require that the State 

explicitly set forth in the information the lesser-included 

offense of the crime charged.14 The defendant is by implication charged with the lesser offense when charged with the 

greater offense, and due process is satisfied so long as the 

nature of the crime charged was sufficient to give the defendant notice that he or she could be convicted of the lesserincluded offense.15 We have accordingly held that in a bench 

trial, the court in its discretion may dismiss or acquit on the 

charge in the information but nevertheless convict the defendant of a lesser-included offense not explicitly set forth in the 

information.16 Likewise, in a jury trial, the court on its own 

motion may instruct the jury as to lesser-included offenses not 

explicitly set forth in the information.17

11 State v. Van, supra note 9.

12 Id.

13 Id.

14 State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003); State v. Keup, 

supra note 5; State v. Foster, 230 Neb. 607, 433 N.W.2d 167 (1988).

15 See State v. James, supra note 14.

16 See, State v. James, supra note 14; State v. Keup, supra note 5; State v. 

Foster, supra note 14.

17 See, State v. Pribil, 224 Neb. 28, 395 N.W.2d 543 (1986); Neb. Rev. Stat. 

§ 29-2025 (Reissue 2016).
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But it is fundamental that no person may be convicted of a 

crime for which he or she was not charged.18 The U.S. Supreme 

Court has said that doing so would be “‘sheer denial of due 

process.’”19 The Nebraska Court of Appeals has thus recognized plain error when the defendant was convicted of a crime 

which was not charged and which was not a lesser-included 

offense of the crime charged.20

[8] Juvenile proceedings are not criminal prosecutions.21

Nevertheless, where the juvenile is in jeopardy of having his 

or her freedom curtailed, the notice protections guaranteed by 

due process are the same.22 The U.S. Supreme Court held, in 

In re Gault,

23 that while the 14th Amendment does not require 

that the hearing at the adjudicatory stage conform with all the 

requirements of a criminal trial, where juvenile delinquency 

proceedings could result in curtailing the juvenile’s freedom, 

the Due Process Clause requires application of “‘the essentials 

of due process and fair treatment.’”

[9] Under In re Gault, a juvenile offender in a delinquency 

adjudication in which the juvenile’s freedom could be curtailed 

has the same constitutional rights as an adult with regard to 

four specific due process rights: (1) to receive notice of the 

charges, (2) to be represented by counsel, (3) to confront 

and cross-examine witnesses, and (4) to invoke the privilege 

18 See Thornhill v. Alabama, 310 U.S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 

(1940).

19 Id., 310 U.S. at 96.

20 State v. Newman, 5 Neb. App. 291, 559 N.W.2d 764 (1997), overruled on 

other grounds, State v. Becerra, 253 Neb. 653, 573 N.W.2d 397 (1998).

21 See, In re Gault, 387 U.S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1967); In 

re Interest of Heather R. et al., 269 Neb. 653, 694 N.W.2d 659 (2005); In 

re Interest of Leo L., 258 Neb. 877, 606 N.W.2d 783 (2000).

22 See, In re Gault, supra note 21; In re Interest of Heather R. et al., supra

note 21; In re Interest of Leo L., supra note 21.

23 In re Gault, supra note 21, 387 U.S. at 30. See In re Interest of Leo L., 

supra note 21. See, also, McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. 

Ct. 1976, 29 L. Ed. 2d 647 (1971).
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against self-incrimination.24 Regarding notice, the Court in In 

re Gault held that in juvenile proceedings, courts must comply 

with the due process requirements

that the child and his parents or guardian be notified, in 

writing, of the specific charge or factual allegations to be 

considered at the hearing, and that such written notice be 

given at the earliest practicable time, and in any event 

sufficiently in advance of the hearing to permit preparation. Due process of law requires notice of the sort we 

have described—that is, notice which would be deemed 

constitutionally adequate in a civil or criminal proceeding. It does not allow a hearing to be held in which a 

youth’s freedom and his parents’ right to his custody are 

at stake without giving them timely notice, in advance of 

the hearing, of the specific issues that they must meet.25

We agree with numerous other courts that hold that under 

In re Gault, it violates due process to adjudicate a juvenile, 

whose freedom could be curtailed, of committing acts constituting a separate and distinct offense for which the juvenile 

was not specifically charged.26

[10] Third degree sexual assault is a separate and distinct 

offense from the crime of first degree sexual assault that was 

described in the petition. The juvenile court was incorrect in 

concluding that third degree sexual assault under § 28-320 is 

a lesser included offense of first degree sexual assault under 

§ 28-319.27

24 See In re Interest of Leo L., supra note 21.

25 In re Gault, supra note 21, 387 U.S. at 33-34. See, also, In re Interest of 

Juan L., 6 Neb. App. 683, 577 N.W.2d 319 (1998).

26 See, In Interest of Bryant, 18 Ill. App. 3d 887, 310 N.E.2d 713 (1974); 

In re Areal B., 177 Md. App. 708, 938 A.2d 43 (2007); In Interest of J.T., 

447 S.W.3d 212 (Mo. App. 2014); State ex rel. Juv. Dept. v. Henson, 97 

Or. App. 26, 775 P.2d 325 (1989); In re Interest of Becker, 370 Pa. Super. 

487, 536 A.2d 1370 (1988). See, also, In re Davis, 114 N.C. App. 253, 441 

S.E.2d 696 (1994).

27 See, also, State v. Malcom, 7 Neb. App. 286, 583 N.W.2d 45 (1998).
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In 1993, we adopted a statutory elements test to determine 

whether an offense is a lesser-included offense of another.28

Under this test, we look to the elements of the crime rather 

than the facts of the case, and to be a lesser-included offense, 

the elements of the lesser offense must be such that it is impossible to commit the greater offense without at the same time 

committing the lesser.29

First degree sexual assault as described in § 28-319(1) is 

as follows:

Any person who subjects another person to sexual penetration (a) without the consent of the victim, (b) who 

knew or should have known that the victim was mentally 

or physically incapable of resisting or appraising the 

nature of his or her conduct, or (c) when the actor is nineteen years of age or older and the victim is at least twelve 

but less than sixteen years of age is guilty of sexual 

assault in the first degree.

Penetration is defined in Neb. Rev. Stat. § 28-318(6) (Reissue 

2016) as

sexual intercourse in its ordinary meaning, cunnilingus, 

fellatio, anal intercourse, or any intrusion, however slight, 

of any part of the actor’s or victim’s body or any object 

manipulated by the actor into the genital or anal openings 

of the victim’s body which can be reasonably construed 

as being for nonmedical or nonhealth purposes. Sexual 

penetration shall not require emission of semen.

Second and third degree sexual assault is set forth in 

§ 28-320(1):

Any person who subjects another person to sexual contact (a) without consent of the victim, or (b) who knew 

or should have known that the victim was physically or 

mentally incapable of resisting or appraising the nature of 

his or her conduct is guilty of sexual assault in either the 

second degree or third degree.

28 State v. Williams, 243 Neb. 959, 503 N.W.2d 561 (1993).

29 See State v. Putz, 266 Neb. 37, 662 N.W.2d 606 (2003).
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Sexual assault under § 28-320(3) is in the third degree “if the 

actor shall not have caused serious personal injury to the victim.” Sexual contact is defined by § 28-318(5) as

the intentional touching of the victim’s sexual or intimate 

parts or the intentional touching of the victim’s clothing 

covering the immediate area of the victim’s sexual or 

intimate parts. Sexual contact shall also mean the touching by the victim of the actor’s sexual or intimate parts 

or the clothing covering the immediate area of the actor’s 

sexual or intimate parts when such touching is intentionally caused by the actor. Sexual contact shall include 

only such conduct which can be reasonably construed 

as being for the purpose of sexual arousal or gratification of either party. Sexual contact shall also include 

the touching of a child with the actor’s sexual or intimate parts on any part of the child’s body for purposes 

of sexual assault of a child under sections 28-319.01 

and 28-320.01

Comparing the elements of § 28-319 to § 28-320, it is possible to have sexual penetration under § 28-319 without having 

sexual contact under § 28-320. As explained by the Court of 

Appeals in State v. Schmidt,

30 and reiterated by this court in 

State v. Kibbee,

31 third degree sexual assault requires that the 

touching be for the purpose of sexual arousal or gratification, 

while sexual assault in the first degree does not.

Jordan was adjudicated based on a finding that he had committed acts constituting third degree sexual assault. The petition 

described only first degree sexual assault, and the State never 

suggested any underlying law violation other than the lesserincluded offense of attempted first degree sexual assault.32

The court specifically found that the State failed to prove 

beyond a reasonable doubt that Jordan committed first degree 

30 State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997).

31 State v. Kibbee, 284 Neb. 72, 815 N.W.2d 872 (2012).

32 See State v. James, supra note 14.
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sexual assault as charged. Further, there is nothing in the court’s 

order indicating a finding of acts constituting an attempt to 

commit first degree sexual assault. Although at one point in its 

order, the court found that the State met its burden of proving 

“Third Degree Sexual Assault contrary to 28-318,” there is no 

third degree sexual assault in § 28-318. And the court clearly 

articulated that the elements of third degree sexual assault 

found in § 28-320 had been demonstrated beyond a reasonable 

doubt. The court found that the State had proved that Jordan 

had “sexual contact” with the alleged victim, which “did not 

cause serious personal injury.”

This adjudication on the grounds of third degree sexual 

assault unfairly denied Jordan the opportunity to raise the 

defense that the alleged touching could not be reasonably construed as being for the purpose of sexual arousal or gratification of either party. The adjudication for neither a law violation 

specifically alleged in the petition nor a lesser-included offense 

of the violation alleged in the petition was a “‘sheer denial of 

due process’”33 constituting plain error.

The State concedes that it was plain error to adjudicate 

Jordan on third degree sexual assault. It suggests, however, 

that we may affirm the adjudication for the alternative reason 

that Jordan committed the implicitly charged lesser-included 

offense of attempted first degree assault. In essence, the State 

asserts that the juvenile court erred in failing to adjudicate 

Jordan on the grounds that he committed acts constituting 

attempted first degree sexual assault.

[11] But the State did not appeal the juvenile court’s order. 

Neb. Rev. Stat. § 43-2,106.01 (Reissue 2016) provides that an 

appeal in any case determining delinquency issues in which 

the juvenile has been placed legally in jeopardy may only be 

taken by exception proceedings pursuant to Neb. Rev. Stat. 

§§ 29-2317 to 29-2319 (Reissue 2016). The U.S. Supreme 

33 Thornhill v. Alabama, supra note 18, 310 U.S. at 96.
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Court held in Breed v. Jones34 that jeopardy attaches in juvenile 

delinquency proceedings when the juvenile court, as the trier of 

the facts, begins to hear evidence.

[12] Appeals under specific statutory provisions require 

strict adherence to the statute’s procedures.35 Section 29-2317 

requires, among other things, that the prosecuting attorney 

appeal the county court judgment to the district court sitting as 

an appellate court. We held in In re Interest of Sean H.36 that 

any reference to the county court in §§ 29-2317 to 29-2319 

applies to the separate juvenile court and that we lack jurisdiction to consider the State’s exceptions that fail to fully comply 

with the statutory procedures outlined in § 29-2317, as incorporated by § 43-2,106.01.

Despite the fact that Jordan was placed in jeopardy, the State 

did not adhere to the requirements of § 29-2317. It cannot circumvent the requirements of § 29-2317 by appealing to our de 

novo review.

The State misunderstands the nature of our de novo review 

of a juvenile adjudication under § 43-247(2). In a review de 

novo on the record, we reappraise the evidence as presented 

by the record and reach our own independent conclusions with 

respect to the matters at issue.37 It is still a review, however, in 

which we determine whether to affirm or reverse the decision 

of the lower court.

We may, where appropriate, affirm the right result reached 

below for the wrong reason.38 But the focus of our review in 

34 Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975).

35 In re Interest of Sean H., 271 Neb. 395, 711 N.W.2d 879 (2006).

36 Id. See, also, In re Interest of Rebecca B., 280 Neb. 137, 783 N.W.2d 

783 (2010); In re Interest of Lori S., 20 Neb. App. 152, 819 N.W.2d 736 

(2012).

37 Guggenmos v. Guggenmos, 218 Neb. 746, 359 N.W.2d 87 (1984).

38 See, e.g., State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (2016); In 

re Trust Created by Cease, 267 Neb. 753, 677 N.W.2d 495 (2004); Ochs 

v. Makousky, 249 Neb. 960, 547 N.W.2d 136 (1996); Winfield v. CIGNA 

Cos., 248 Neb. 24, 532 N.W.2d 284 (1995).
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Nebraska Supreme Court Advance S

300 Nebraska Report

IN RE INTEREST OF JORDAN B.

Cite as 300 Neb. 355

an adjudication for a law violation is on whether as a factual 

matter the juvenile committed acts constituting a violation of 

the underlying criminal statute.39

Leaving aside the double jeopardy implications of affirming 

an adjudication on a lesser-included offense implicitly presented to but not found by the juvenile court,40 it is not within 

the normal scope of our appellate review to make such a factual finding for the first time on appeal. We decline to do so 

here. Although a trial court in a bench trial may in its discretion 

consider all properly considered evidence relative to a lesserincluded offense where the State fails to demonstrate a prima 

facie case on the crime charged,41 we are not a trial court. The 

State cites to no authority supporting the proposition that an 

appellate court, even under a de novo review, may consider 

whether the juvenile has committed acts constituting a lesserincluded offense where the State failed to demonstrate a prima 

facie case on the crime charged and the juvenile court did not 

adjudicate the juvenile on the lesser-included offense.

[13] We lack jurisdiction to consider the State’s exceptions 

that fail to fully comply with the statutory procedures outlined 

in § 29-2317, as incorporated by § 43-2,106.01.

VI. CONCLUSION

Because the juvenile court adjudicated Jordan on grounds 

for which he had no notice, in violation of the Due Process 

Clauses of the U.S. and Nebraska Constitutions, we reverse, 

and remand with directions to vacate the adjudication.

Reversed and remanded with dir

39 See, e.g., In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 

(2007).

40 See, Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 

(1977); Breed v. Jones, supra note 34; U.S. v. Parker, 989 F.2d 948 (8th 

Cir. 1993); State v. McCracken, 260 Neb. 234, 615 N.W.2d 902 (2000), 

abrogated on other grounds, State v. Thomas, 262 Neb. 985, 637 N.W.2d 

632 (2002). See, also, In re Interest of Rebecca B., supra note 36.

41 See State v. Keup, supra note 5.