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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

IN RE INTEREST OF MICHAEL R.

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

IN RE INTEREST OF MICHAEL R., A CHILD UNDER 18 YEARS OF AGE.

STATE OF NEBRASKA, APPELLEE,

V.

MICHAEL R., APPELLANT.

Filed October 1, 2019. No. A-18-1099.

Appeal from the County Court for Scotts Bluff County: JAMES M. WORDEN, Judge. 

Affirmed.

Bell Island, of Island Law Office, P.C., L.L.O., for appellant.

Danielle Larson, Deputy Scotts Bluff County Attorney, for appellee.

MOORE, Chief Judge, and PIRTLE and WELCH, Judges.

WELCH, Judge.

INTRODUCTION

Michael R. appeals the order of the Scotts Bluff County Court, sitting in its capacity as a 

juvenile court, adjudicating him as a juvenile under Neb. Rev. Stat. § 43-247(1) (Reissue 2016). 

For the reasons set forth herein, we affirm.

STATEMENT OF FACTS

In April 2018, the State filed a juvenile court petition alleging that Michael was a juvenile 

within the meaning of § 43-247(1) relating to four counts of third degree sexual assault and one 

count of attempted third degree sexual assault. The court eventually dismissed the four counts of 
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third degree sexual assault, but found the State met its burden on the sole count of attempted third 

degree sexual assault. It is from this finding that Michael appeals.

At the adjudication hearing, the victim testified that during the 2017-18 school year, she 

and Michael were both sophomores and had four classes together. She testified that Michael would 

sometimes sit behind her, rub her back, and play with her hair. When asked if she consented to 

that form of touching, the victim generally agreed; however, the victim testified regarding two 

incidents that made her uncomfortable.

The first incident occurred in 2017 during one of their classes together. According to the 

victim, she sat in front of Michael, who rubbed her back while a video was playing during the class 

period. She testified that on that occasion, Michael moved his hand toward her breast, but she 

pushed his hand back with her arm.

The second incident occurred in 2018, when she and Michael were in another class 

together. The victim testified that during this class, while a movie was playing, Michael began 

giving her a back rub, but again moved his hand forward and attempted to touch her breast. But 

unlike the first incident, the victim testified that Michael attempted to touch her breast a second 

time after she had pushed his arm away. In her own words, the victim said, “I had to use my 

own -- my own hand to move his hand back because my arm -- he wasn’t getting the hint.” On this 

occasion, she testified that she had to use her hand to push back Michael’s hand at least three times, 

but testified that she was ultimately successful in keeping Michael from touching her breast.

Michael also testified at the adjudication hearing. He stated that he and the victim started 

talking during their sophomore year and described the two of them as “pretty good friends.” He 

said that if they walked down the hall together, “she would put her arm around my arm or we 

would hug or we would talk a lot.” Michael admitted that during a class, he did try to touch the 

victim’s breast while they were watching a movie. Specifically, he recalled that he was playing 

with the victim’s hair and rubbing her back at her request and then attempted to touch her breast, 

but acknowledged the victim moved her arm to stop him. Michael testified the victim told him 

“she doesn’t want to do this here, but you can keep rubbing my back.” Unlike the victim’s 

testimony, Michael testified that following the victim’s admonition, he stopped trying to touch her 

breast and did not do so again.

The court found that the State did not meet its burden of establishing that Michael had 

committed third degree sexual assault. In dismissing the counts of third degree sexual assault, the 

court stated: “I just want to make it clear, Michael, I am not saying that I believe you. I am saying 

that I don’t believe the state has reached its burden beyond a reasonable doubt [on the counts of 

third degree sexual assault].” However, the court did adjudicate Michael as a juvenile within the 

meaning of § 43-247(1) after finding Michael had committed the offense of attempted third degree 

sexual assault. In rendering its judgment, the court specifically found that the victim’s testimony 

was credible. Michael timely appeals.

ASSIGNMENT OF ERROR

Michael contends that there was insufficient evidence to support the court’s adjudication 

of him for attempted third degree sexual assault.
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STANDARD OF REVIEW

An appellate court reviews juvenile cases de novo on the record and reaches a conclusion 

independently of the juvenile court’s findings. In re Interest of Kane L., 299 Neb. 834, 910 N.W.2d 

789 (2018). 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. Id.

ANALYSIS

Michael’s sole assignment of error is that there was insufficient evidence to support the 

court’s adjudication based upon its finding that he committed the offense of attempted third degree 

sexual assault.

The juvenile court obtains jurisdiction of any juvenile who has committed an act, other 

than a traffic offense, which would constitute a misdemeanor or an infraction under the laws of 

this state, or violation of a city or village ordinance. § 43-247(1). When an adjudication is based 

upon § 43-247(1), the allegations must be proved beyond a reasonable doubt. In re Interest of 

Elainna R., 298 Neb. 436, 904 N.W.2d 689 (2017). In reviewing a juvenile court’s order of 

adjudication under § 43-247(1), we determine de novo whether the evidence shows that a juvenile 

has engaged in conduct which would constitute a misdemeanor or infraction under the laws of 

Nebraska. In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007).

In this case, Michael was adjudicated as a juvenile within the meaning of § 43-247(1) for 

attempted third degree sexual assault, which is a Class II misdemeanor. See, Neb. Rev. Stat. 

§§ 28-201 and 28-320 (Reissue 2016). In order to be adjudicated for this offense, the State was 

obligated to prove, beyond a reasonable doubt, the elements of the offense. “Any person who 

subjects another person to sexual contact (a) without consent of the victim . . . is guilty of sexual 

assault in [the] third degree” if the victim is not injured. § 28-320. “Sexual contact means 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.” Neb. Rev. 

Stat. § 28-318(5) (Reissue 2016). “Intimate parts” includes breasts. § 28-318(2).

Criminal attempt is defined in § 28-201, stating:

(1) A person shall be guilty of an attempt to commit a crime if he or she:

. . . .

(b) Intentionally engages in conduct which, under the circumstances as he or she 

believes them to be, constitutes a substantial step in a course of conduct intended to 

culminate in his or her commission of the crime.

Specific to the allegations and record here, we must determine whether the State proved 

beyond a reasonable doubt that Michael intentionally engaged in conduct which, under the 

circumstances as he believed them to be, constituted a substantial step in a course of conduct 

intended to culminate in the commission of a crime, i.e. subjecting the victim to sexual contact 

without the victim’s consent. There is no question that the nonconsensual intentional touching of 

the victim’s breast or clothing covering her breast would constitute the crime of third degree sexual 

assault. So here, the issue raised is whether the court correctly determined that Michael 
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intentionally engaged in conduct intended to culminate in that act without the victim’s consent. 

We agree that he did.

Here, the victim testified that on two separate occasions, Michael was rubbing her back 

while a video played in class, then he tried to reach around and touch her breast. Michael’s 

testimony corroborated the victim’s testimony that during a class in 2018, Michael rubbed the 

victim’s back then moved his hand toward her breast, and she tried to stop him with her arm. The 

victim testified that on that occasion, Michael kept trying to touch her breast and she had to use 

her hand to push back his hand at least three times. The court specifically found the victim’s 

testimony credible. Where the evidence is in conflict, we may give deference to the finder of fact,

and we find it appropriate to do so here.

We further note that even Michael agreed that while rubbing the victim’s back and stroking 

her hair, he attempted to then reach around her and touch her breast. Accordingly, by Michael’s 

own admission, he intentionally took a substantial step in attempting to touch the victim’s breast 

which would constitute a crime if the act was committed without the victim’s consent. The only 

meaningful difference between Michael’s version of the events and the victim’s version is that the 

victim testified that Michael continued his attempts after she repelled his advances. Nebraska 

statutes define “without consent” to include the victim expressing “a lack of consent through 

words, or . . . through conduct.” § 28-318(8)(a)(ii) and (iii). “The victim need only resist, either 

verbally or physically, so as to make the victim’s refusal to consent genuine and real and so as to 

reasonably make known to the actor the victim’s refusal to consent.” § 28-318(8)(b). “A victim 

need not resist verbally or physically where it would be useless or futile to do so.” § 28-318(8)(c).

Taking the victim’s testimony at face value, the victim’s repeated attempts to repel 

Michael’s advances constituted a clear indication that she refused consent to Michael touching her 

breast. We find, beyond a reasonable doubt, that the victim did not consent to Michael touching 

her breast and that Michael engaged in conduct which would constitute an attempted third degree 

sexual assault. His assignment of error fails.

CONCLUSION

In sum, the State adduced evidence to establish, beyond a reasonable doubt, that Michael 

had committed attempted third degree sexual assault. Accordingly, we affirm the court’s order 

adjudicating Michael pursuant to § 43-247(1).

AFFIRMED.