Nebraska Advance Sheets

STATE v. BRAUER 81

Cite as 287 Neb. 81

State of Nebraska, appellee, v. 

Nathan J. Brauer, appellant.

___ N.W.2d ___

Filed December 27, 2013. No. S-12-1169.

1. Trial: Convictions. An appellate court will sustain a conviction in a bench trial 

of a criminal case if the properly admitted evidence, viewed and construed most 

favorably to the State, is sufficient to support that conviction.

2. Convictions: Evidence: Appeal and Error. When reviewing a criminal conviction for sufficiency of the evidence to sustain the conviction, an appellate court 

does not resolve conflicts in the evidence, pass on the credibility of witnesses, 

evaluate explanations, or reweigh the evidence presented, which are within a fact 

finder’s province for disposition. Instead, the relevant question is whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational 

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

3. Sexual Assault: Proof. Whether there is sufficient evidence to prove sexual 

arousal or gratification (which, by necessity, must generally be inferred from the 

surrounding circumstances), is extraordinarily fact driven.

Appeal from the District Court for Cheyenne County: Derek

C. Weimer, Judge. Affirmed.

Maren Lynn Chaloupka, of Chaloupka, Holyoke, Snyder, 

Chaloupka, Longoria & Kishiyama, P.C., L.L.O., for appellant.

Jon Bruning, Attorney General, and Kimberly A. Klein for 

appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, 

Miller-Lerman, and Cassel, JJ.

Connolly, J.

SUMMARY

Following a bench trial, the district court found Nathan 

J. Brauer guilty of sexually assaulting a child in the third 

degree.1 The record shows that Brauer poked a child in the 

penis, over his clothes, using two fingers. The touch was 

brief, and it happened a single time. The sole issue on appeal 

is whether there was sufficient evidence to conclude beyond 

a reasonable doubt that Brauer’s touch was “sexual contact,” 

1 Neb. Rev. Stat. § 28-320.01 (Reissue 2008).
Nebraska Advance Sheets

82 287 NEBRASKA REPORTS

which is limited to conduct that can be “reasonably construed 

as being for the purpose of sexual arousal or gratification.”2

Although some facts suggest an innocent explanation, there 

are sufficient other facts—most notably, Brauer’s incriminating statements to law enforcement—which support the court’s 

finding. We affirm.

BACKGROUND

Factual and Procedural History

Jeremy N. and Danae N. were long-time friends with Brauer. 

In the spring or early summer of 2011, Jeremy and Danae 

asked Brauer (who was not employed at the time) if he would 

like to watch their children, D.N. (about a year old) and J.N. 

(4 years old). Brauer agreed to do so, though the arrangement 

lasted only through June; at that point, Jeremy and Danae no 

longer needed Brauer to babysit their children.

During or soon after that time, J.N. made statements or 

asked questions that concerned Jeremy and Danae. At one 

point, while Jeremy and Danae were watching television, J.N. 

“turned around and . . . said, mommy, daddy nobody is supposed to touch your butt or peenie, right?” Jeremy and Danae 

told him that “no, nobody is ever supposed to touch you. And 

[J.N.] let it go from there.” Several weeks later, Brauer came 

by the house to see Jeremy’s new camper, and J.N. told Jeremy 

that Brauer “made him feel funny, made him feel that [Brauer] 

wanted to touch [J.N.’s] butt or his peenie.” After that, Jeremy 

and Danae did not allow Brauer to see J.N., though Brauer still 

came around the house.

During this time and into the early fall, Danae felt that there 

was something wrong with J.N. but she could not tell what it 

was. Doreen Schaub, J.N.’s daycare provider, had also noticed 

changes in J.N.’s behavior and was worried about him. On 

September 29, 2011, while at the daycare, Danae asked Schaub 

to help her try to discover what was wrong with J.N. Danae 

and Schaub met with J.N., and Danae asked him whether there 

was something wrong, and J.N. said no. Danae mentioned 

Brauer’s name, and J.N. said that Brauer had not done anything 

2 Neb. Rev. Stat. § 28-318(5) (Cum. Supp. 2012).
Nebraska Advance Sheets

STATE v. BRAUER 83

Cite as 287 Neb. 81

to him. Schaub told J.N. that he had to tell the truth, and then 

J.N. said that Brauer had touched his “peepee.” At that point, 

Danae became hysterical, and Schaub called Danae’s mother to 

come to the daycare. Danae’s mother called law enforcement, 

and an officer arrived shortly thereafter. The officer arranged 

for J.N. to be interviewed at 7:30 that night.

Lt. Keith A. Andrew, of the Sidney Police Department, an 

investigator in crimes against children, interviewed J.N. that 

night. Much of the interview consisted of Andrew’s attempting 

to build a rapport with J.N. They discussed J.N.’s family, and 

Andrew emphasized that J.N. had done nothing wrong. At the 

beginning of the interview, Andrew tested J.N. to be sure that 

J.N. understood the difference between a truth and a lie. In the 

middle of the interview, Andrew had J.N. look at textbook pictures of a boy and of a man and identify what he called each of 

their parts. Andrew did this because “some children will identify like their penis or their groin area with multiple names[,] 

so we want to make sure that when they are telling us about 

their peenie or whatever that is[,] we know what part they are 

talking about.”

Eventually, J.N. asked whether Brauer was in trouble, identified Brauer as his dad’s “buddy,” and explained that Brauer 

used to babysit J.N. In response to Andrew’s questions, J.N. 

explained that Brauer had touched J.N.’s “peenie,” but not 

his “bottom.” J.N. explained that it had happened at Brauer’s 

house, in the living room, after they had watched a movie. 

J.N. showed Andrew how Brauer had touched him, indicating 

that it was a two-finger tap or poke to his penis. J.N. consistently maintained that the touch happened only once and that 

he had all of his clothes on when it happened. J.N. said that 

he told Brauer “don’t do that ever again” and Brauer apologized. Throughout the interview, J.N. was cheerful, cooperative, and unafraid.

Toward the end of October 2011, Andrew visited Brauer 

at his workplace. Andrew informed Brauer of the allegations, 

which Brauer denied. Andrew “asked him if there was ever 

any time he had touched [J.N.’s] penis area for any reason[,] 

including playing[,] and he said absolutely not.” Andrew asked 

Brauer whether he would meet with him for some followup 
Nebraska Advance Sheets

84 287 NEBRASKA REPORTS

questions; Brauer agreed, and Andrew arranged for Brauer to 

come to the Nebraska State Patrol office for an interview on 

November 8.

During that interview, Brauer initially denied ever touching 

J.N. but eventually acknowledged the touch described above. 

Though Brauer denied ever having any explicit sexual contact 

(such as penetration or masturbation) with J.N., he did make 

several incriminating statements, which will be set forth in 

detail below. Law enforcement released Brauer following the 

interview, but arrested him a few hours later.

The Trial

The State charged Brauer with sexually assaulting a child 

in the third degree. Brauer waived his right to a jury trial and 

elected to proceed with a bench trial. At trial, J.N., along with 

his parents, his daycare provider, and the various law enforcement officers involved in the investigation (chiefly, Andrew) 

testified to the above facts. J.N. also related a host of additional 

allegations which he had never expressed before in his interview with Andrew or (presumably) to his parents. For example, 

J.N. testified that Brauer “dragged” J.N. into the bathroom and 

locked him in there, that the touch occurred in the bathroom, 

and that Brauer used his “whole hand.”

The Court’s Order

Based on the trial court’s opinion, the court gave no credence to J.N.’s additional allegations at trial, but the court did 

find Brauer guilty. The court made extensive factual findings, 

including that the touch was a two-finger touch or poke, that it 

occurred over J.N.’s clothes, and that it was brief and occurred 

only once. The court noted that the only contested element of 

the crime was “whether the State submitted sufficient evidence 

to prove beyond a reasonable doubt that [Brauer’s] touching of 

[J.N.] was ‘sexual contact’ as that term is defined in the law.” 

Brauer’s touching of J.N. could be “sexual contact” only if it 

could be “reasonably construed as being for the purpose of 

sexual arousal or gratification of either party.”3

3 Id.
Nebraska Advance Sheets

STATE v. BRAUER 85

Cite as 287 Neb. 81

In finding that the State had proved sexual contact, the 

court emphasized a number of facts. The court noted that, at 

first, Brauer persistently denied any contact with J.N., then 

said “maybe he got close once when he picked [J.N.] up when 

they were wrestling around,” and then eventually admitted 

to touching J.N. The court also noted that Brauer apologized 

immediately to J.N. and that during Brauer’s interview with 

law enforcement, Brauer made suicidal statements. Viewed 

together, the court saw this as evidence of consciousness 

of guilt.

The court also emphasized the context around the touch. 

The court noted that Brauer acknowledged sharing “a kiss 

and hug of some kind with [J.N.] prior to the touching and 

that it made him feel really good,” though the court acknowledged that Brauer said that it made him feel good mentally, 

but not sexually. The court noted that the touch occurred 

when Brauer was alone and unsupervised with J.N. And 

the court noted that, based on J.N.’s behavioral changes, 

“[t]his incident was obviously weighing on [J.N.]” Finally, 

the court emphasized Brauer’s incriminating statements during his interview with Andrew, which the court characterized 

as “admissions.”

After rendering its verdict, the court sentenced Brauer to 2 

to 3 years in prison.

ASSIGNMENT OF ERROR

Brauer assigns, restated, that the district court erred in finding that the State had proved beyond a reasonable doubt that 

Brauer’s touch was “sexual contact.”

STANDARD OF REVIEW

[1,2] We will sustain a conviction in a bench trial of a 

criminal case if the properly admitted evidence, viewed and 

construed most favorably to the State, is sufficient to support that conviction.4

 In making this determination, we do 

not resolve conflicts in the evidence, pass on the credibility 

of witnesses, evaluate explanations, or reweigh the evidence 

4 See State v. Lamb, 280 Neb. 738, 789 N.W.2d 918 (2010).
Nebraska Advance Sheets

86 287 NEBRASKA REPORTS

presented, which are within a fact finder’s province for disposition.5

 Instead, the relevant question is whether, after viewing 

the evidence in the light most favorable to the prosecution, 

any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.6

ANALYSIS

Brauer’s argument is simple: He argues that the evidence 

was insufficient to support the verdict. Specifically, Brauer 

argues that the evidence was insufficient to show, beyond a 

reasonable doubt, that Brauer’s touching J.N. was “sexual contact,” which is limited to conduct which can be “reasonably 

construed as being for the purpose of [Brauer’s] sexual arousal 

or gratification” under § 28-318(5). In support of his argument, 

Brauer argues, among other things, that the touch was minor, 

fleeting, and over the clothes, and that there were no “indicia 

of sexual arousal.”7

We recently addressed the same issue, though in a different context, in State v. Osborne.

8

 There, we referenced the 

Nebraska Court of Appeals’ opinion detailing the underlying 

facts and then concluded that affirmance was proper after “having reviewed the briefs and record and having heard oral arguments, and considering the relevant standard of review.”9

 This 

case presents different and, qualitatively speaking, weaker facts 

than Osborne; but we do not bring up Osborne to compare 

facts. Its relevance here, beyond presenting the same issue, is 

as a recent example of the role the standard of review plays in 

criminal cases at the appellate level.

There is an appellate maxim that “standards of review can 

be a party’s best friend or they can be a party’s worst enemy.” 

That maxim rings true today, and to Brauer’s detriment. The 

record could very well support inferences other than those 

drawn by the trial court. But under our standard of review, we 

5 See id.

6 See id.

7 Brief for appellant at 22.

8 State v. Osborne, 286 Neb. 154, 835 N.W.2d 664 (2013).

9 Id. at 156-57, 835 N.W.2d at 666 (emphasis supplied).
Nebraska Advance Sheets

STATE v. BRAUER 87

Cite as 287 Neb. 81

do not resolve conflicts in the evidence, reweigh the evidence, 

assess witness credibility, or evaluate explanations. Instead, 

we ask only whether—viewing the evidence in the light most 

favorable to the prosecution—any rational trier of fact could 

have found the essential elements of the crime beyond a reasonable doubt. It could.

The State charged Brauer with sexually assaulting a child in 

the third degree. Section 28-320.01(1) explains that “[a] person 

commits sexual assault of a child in the second or third degree 

if he or she subjects another person fourteen years of age or 

younger to sexual contact and the actor is at least nineteen 

years of age or older.” The crime is in the third degree if the 

“actor does not cause serious personal injury to the victim,”10

which is the case here.

Because the ages of the relevant persons were undisputed, 

as was the existence of the touch itself, the only issue was 

whether the touch was “sexual contact” under § 28-318(5). 

Brauer did not dispute that he intentionally touched J.N.’s 

“clothing covering the immediate area of [J.N.’s] sexual or 

intimate parts.” The only question was whether Brauer’s touch 

could be “reasonably construed as being for the purpose of 

[Brauer’s] sexual arousal or gratification.” After reviewing the 

record, we conclude that there was sufficient evidence to support the trial court’s finding beyond a reasonable doubt that 

Brauer’s touch was “sexual contact.”

As noted by the trial court, Brauer initially (and persistently) denied ever touching J.N. in or around his crotch for 

any reason, even accidentally. Then, when confronted by law 

enforcement officers, he admitted that he “had come in contact 

with [J.N.] on the upper leg area in the vicinity of the genitals.” And during his interview with Andrew, Brauer eventually 

admitted that he had “poked” J.N. in the penis. The transcript 

of Brauer’s interview with Andrew also reveals that Brauer 

contemplated suicide (though he assured Andrew he was not 

going to follow through), making statements like, “I’m going 

to go blow my head off.” Brauer’s initial refusal to acknowledge the touch until repeatedly confronted by law enforcement 

10 § 28-320.01(3).
Nebraska Advance Sheets

88 287 NEBRASKA REPORTS

officers, along with his clear understanding that what he had 

done was wrong, could allow the trial court to conclude that 

this was more than simply an innocent touch.

Other facts also support concluding that Brauer touched 

J.N. for the purpose of sexual arousal or gratification. Brauer 

acknowledged that, with Jeremy and Danae present, he had 

shared “a kiss and hug of some kind with [J.N.] prior to 

the touching and that it made him feel really good,” though 

Brauer said it made him feel good mentally, not sexually. In 

speaking with one investigator, Brauer said the kiss made 

him feel a “spark.” Most damning, however, are Brauer’s 

statements during Andrew’s interview with Brauer describing his touching J.N. We set out the critical part of the interview below:

LT. KEITH ANDREW: Okay. Tell me what — show 

me what happened. If this is his groin area, how did you 

touch him? Say this is — this is his groin area. It’s my 

knee, okay. I’m not big into touches, but go ahead and 

show me one time. Show me how it happened.

NATHAN BRAUER: Oh, my God.

LT. KEITH ANDREW: What?

NATHAN BRAUER: I poked him like that.

LT. KEITH ANDREW: Okay. With two fingers?

NATHAN BRAUER: Two fingers. I just poked him 

like that. Oh.

LT. KEITH ANDREW: And then you stopped; right?

NATHAN BRAUER: Yeah, because he came flying up 

to me just to jump on me to give me a hug, and he hit 

me in the nuts. So my reaction was, [J.N.], no, and then 

I poked him in the nuts. And I thought, what the — oh, 

okay, sorry, [J.N.]

LT. KEITH ANDREW: Okay. Because you knew that 

feeling. You were like, stop, don’t let this get carried 

away?

NATHAN BRAUER: Yeah.

LT. KEITH ANDREW: Because you care for him? 

Okay. But there was something sexual that kicked in 

when you did that?
Nebraska Advance Sheets

STATE v. BRAUER 89

Cite as 287 Neb. 81

NATHAN BRAUER: Well, I wouldn’t really say sexual. I mean, it just kind of hurt me in a way, I guess.

LT. KEITH ANDREW: Okay.

NATHAN BRAUER: But when I hit him in the nuts, 

it’s like, oh, my God, that’s . . .

LT. KEITH ANDREW: So it gave you a spark, for lack 

of a better term?

NATHAN BRAUER: A spark to never do it again.

LT. KEITH ANDREW: A charge? Okay.

NATHAN BRAUER: It — no. It just kind of give me 

that hit like, oh, okay, I just fucked up.

LT. KEITH ANDREW: This is wrong, never do this 

again?

NATHAN BRAUER: Yeah.

LT. KEITH ANDREW: You don’t do this to kids?

NATHAN BRAUER: No.

LT. KEITH ANDREW: Okay.

NATHAN BRAUER: You do not do that to kids.

LT. KEITH ANDREW: So it was kind of a sexual — 

had a sexual connotation to it and — but you —

NATHAN BRAUER: Well . . .

LT. KEITH ANDREW: — checked it and stopped?

NATHAN BRAUER: Yeah. I mean, I wouldn’t say, 

like, it got my dick hard or made me, like, you know 

throb up with it, but it just made me, you know . . .

LT. KEITH ANDREW: Maybe like an adrenalinetype rush?

NATHAN BRAUER: Yeah.

LT. KEITH ANDREW: Like a — like a release of 

some hormone that had a sexual connotation to it?

NATHAN BRAUER: Well, it probably was a little bit 

of that because I got racked, and I wanted to tell him basically don’t do this.

LT. KEITH ANDREW: Okay. Okay. So how many 

times did this happen? One time?

NATHAN BRAUER: One time.

LT. KEITH ANDREW: Happened one time. Did [J.N.] 

say anything to you?
Nebraska Advance Sheets

90 287 NEBRASKA REPORTS

NATHAN BRAUER: That hurt.

LT. KEITH ANDREW: Okay.

NATHAN BRAUER: And so I said, I’m like, sorry, 

[J.N.]

LT. KEITH ANDREW: Okay. And did he tell you to 

— anything else after that? How about something to the 

effect, don’t ever do that again?

NATHAN BRAUER: Yeah.

LT. KEITH ANDREW: Did he tell you that? Do you 

remember that?

NATHAN BRAUER: I think so. I can’t really . . .

LT. KEITH ANDREW: Something? He said something 

along that lines [sic]? You don’t remember the exact terminology; is that right?

NATHAN BRAUER: I don’t remember.

LT. KEITH ANDREW: Okay. Okay.

NATHAN BRAUER: I mean, I remember . . .

LT. KEITH ANDREW: So let me make sure I have 

this right, okay? I want to make sure I’m understanding 

everything because I don’t want to misconstrue anything 

. . . okay? So I’m going to kind of regurgitate what 

you’ve told me.

NATHAN BRAUER: Yeah.

LT. KEITH ANDREW: And if there’s a correction to 

be made, tell me.

NATHAN BRAUER: Okay.

. . . .

LT. KEITH ANDREW: Okay. So he was — you guys 

were playing. He hit you in your groin, which caused you 

some pain.

NATHAN BRAUER: Oh, yeah.

LT. KEITH ANDREW: Okay.

NATHAN BRAUER: Oh, yeah.

LT. KEITH ANDREW: We’ve all been there. We know 

that hurts, okay.

NATHAN BRAUER: Yeah. Yeah.

LT. KEITH ANDREW: And you went like — you used 

two fingers like this.
Nebraska Advance Sheets

STATE v. BRAUER 91

Cite as 287 Neb. 81

NATHAN BRAUER: Uh-huh.

LT. KEITH ANDREW: You went like that to his groin.

NATHAN BRAUER: Uh-huh.

LT. KEITH ANDREW: And . . .

NATHAN BRAUER: Just to pretty much tell him, hey, 

that hurts, don’t do that.

LT. KEITH ANDREW: Okay. And when you did that, 

there was a — some kind of impulse.

NATHAN BRAUER: Yeah. Yeah.

LT. KEITH ANDREW: The thrill of some kind of 

sexual . . .

NATHAN BRAUER: I wouldn’t really say sexual 

really, but there was an impulse.

LT. KEITH ANDREW: Okay.

NATHAN BRAUER: I’m just . . .

LT. KEITH ANDREW: And then you did the right 

thing. You said, I’m never . . .

NATHAN BRAUER: Oh, I fucked up, sorry.

LT. KEITH ANDREW: I’m — I screwed up, the — 

going through your head, I will never do this again, 

because you don’t like kids. I mean, you like kids, but 

you don’t have a preference for kids.

NATHAN BRAUER: There we go, yeah.

LT. KEITH ANDREW: A sexual preference for kids.

NATHAN BRAUER: Yeah.

LT. KEITH ANDREW: Is that fair?

NATHAN BRAUER: Yeah, that’s fair.

LT. KEITH ANDREW: Okay. So it happened once. 

You touched him there. There was a — some kind of 

sexual urge, not an erection.

NATHAN BRAUER: No, never an erection.

LT. KEITH ANDREW: Okay. But a sexual release of 

hormones, I guess is a better . . .

NATHAN BRAUER: Yeah, it was . . .

LT. KEITH ANDREW: Is that right?

NATHAN BRAUER: Yeah. It was just a release.

LT. KEITH ANDREW: That’s how I’m understanding it.
Nebraska Advance Sheets

92 287 NEBRASKA REPORTS

NATHAN BRAUER: It must have been a release of 

hormones.

LT. KEITH ANDREW: And then you did the right 

thing. And right after it happened you were like, I’m 

never doing this again. I’m not going to touch him. 

He’s my family. He’s a little boy. And you’ve checked it 

since then.

NATHAN BRAUER: Yeah.

LT. KEITH ANDREW: And you haven’t done this 

since?

NATHAN BRAUER: Nope.

LT. KEITH ANDREW: Are you ever going to do that 

again?

NATHAN BRAUER: Fuck no.

Although Brauer does not endorse the “sexual” modifier, 

he variously describes having experienced an “adrenaline-type 

rush,” “impulse,” and a “release of hormones” from the touch. 

Brauer made these statements knowing there were allegations 

that he had touched J.N. with a sexual purpose. We agree with 

the district court that these statements constitute admissions 

that Brauer’s touch was for the purpose of his sexual arousal 

or gratification. Viewed as a whole, the record presents sufficient evidence for the fact finder to have found Brauer guilty, 

beyond a reasonable doubt, of sexually assaulting J.N.

But Brauer points out that there was an innocent explanation for the touch: J.N. had been going through a phase 

of hitting men in the crotch, and when J.N. hit Brauer in 

the crotch, Brauer’s subsequent touch was a hasty (and illadvised) reaction, but not sexual in any way. Under our 

standard of review, however, we do not reweigh evidence or 

evaluate explanations. And contrary to Brauer’s assertion that 

it was undisputed J.N. had hit Brauer in the crotch before 

the touch, the district court found this explanation not credible because this “was not something [Brauer] had ever told 

anyone before” Andrew’s interview and, particularly, because 

it was not something Brauer had ever told his friends Jeremy 

and Danae. We will not second-guess the district court’s determinations in that regard.
Nebraska Advance Sheets

STATE v. BRAUER 93

Cite as 287 Neb. 81

Brauer also repeatedly emphasizes that this was a single 

poke, with two fingers, over J.N.’s clothes and that there was 

no stroking or fondling or, indeed, any additional movement 

of the hand or fingers. Brauer emphasizes that there was no 

evidence that Brauer got an erection, that he told J.N. to keep 

the touch secret, or that Brauer threatened J.N. And Brauer 

argues that there was no evidence that he removed his clothing, 

breathed heavily, or had any other observable signs of arousal. 

All of this is true; but it does not change the evidence that 

does exist, which is sufficient for the fact finder to have found 

Brauer guilty. Whether the district court “failed to weigh[] and 

act on [the] evidence cautiously”11 is not something we evaluate; we do not reweigh the evidence.

Finally, Brauer points to several cases where courts have 

found insufficient evidence of sexual arousal or gratification. We find them materially distinguishable, in various 

ways. For example, in In re Interest of Kyle O.,

12 the Court 

of Appeals determined that “the State presented insufficient 

evidence to establish that ‘sexual contact’ occurred” between 

a 14-year-old and a 5-year-old. Putting aside the fact that 

In re Interest of Kyle O. involved two minors, the Court of 

Appeals (reviewing a juvenile case) also operated under a de 

novo standard of review,13 a standard far more lenient than 

ours in this case.

In State v. Powell,

14 the Washington Court of Appeals 

found insufficient evidence of sexual gratification. There, the 

record showed that the defendant, well known to the child as 

“Uncle Harry,” had hugged the child around her chest while 

she was seated on his lap.15 As the defendant helped her off 

11 Brief for appellant at 22.

12 In re Interest of Kyle O., 14 Neb. App. 61, 62, 703 N.W.2d 909, 911 

(2005).

13 See In re Interest of Kyle O., supra note 12.

14 State v. Powell, 62 Wash. App. 914, 816 P.2d 86 (1991).

15 See id. at 916, 816 P.2d at 87.
Nebraska Advance Sheets

94 287 NEBRASKA REPORTS

his lap, he “placed his hand on her ‘front’ and bottom on her 

underpanties under her skirt.”16 And, on another occasion, 

while the defendant and the child were waiting for the child’s 

cousin in the defendant’s truck, the defendant had “touched 

both her thighs.”17

The Washington Court of Appeals reversed, concluding that 

the defendant’s “purpose in both touchings [was] equivocal.”18

The court emphasized several factors, including that the 

touches were susceptible to innocent explanations, that the 

child was clothed on each occasion, that the touches occurred 

on the outside of the clothes, and that the defendant made no 

threats, bribes, or requests not to tell.19 Finally, the defendant 

acknowledged that he might have hugged and touched her, but 

“[h]e denied ever touching [the child] under her skirt or touching her for sexual gratification.”20 We find this case distinguishable, primarily because of Brauer’s statements to Andrew, 

set forth above, which we (like the district court) view as 

incriminating admissions.

[3] Brauer cites several other cases as examples of courts 

having found insufficient evidence of sexual arousal or gratification.21 We find them distinguishable, and we see no need 

to recite each of them here. It suffices to say that what those 

cases demonstrate, along with others we have uncovered, is 

a simple truth: Whether there is sufficient evidence to prove 

sexual arousal or gratification (which, by necessity, must generally be inferred from the surrounding circumstances)22 is 

extraordinarily fact driven. The facts in this case, considering 

16 Id.

17 Id.

18 Id. at 917, 816 P.2d at 88.

19 See Powell, supra note 14.

20 Id. at 918, 816 P.2d at 88.

21 See, e.g., In re Matthew K., 355 Ill. App. 3d 652, 823 N.E.2d 252, 291 

Ill. Dec. 242 (2005); People v. Guerra, 178 A.D.2d 434, 577 N.Y.S.2d 

296 (1991); State v. Brown, 586 A.2d 1085 (R.I. 1991); McKeon v. 

Commonwealth, 211 Va. 24, 175 S.E.2d 282 (1970).

22 See In re Interest of Kyle O., supra note 12.
Nebraska Advance Sheets

STATE v. BRAUER 95

Cite as 287 Neb. 81

our standard of review, constitute sufficient evidence to support 

the verdict.

CONCLUSION

Finding sufficient evidence to support the verdict, we affirm.

Affirmed.

Miller-Lerman, J., dissenting.

I fully recognize the need to protect children, but given the 

evidence in the record, I respectfully dissent. Even viewing 

the evidence in a light most favorable to the State as we must, 

see State v. Lamb, 280 Neb. 738, 789 N.W.2d 918 (2010), and 

mindful of the limitations of our appellate standard of review 

as emphasized by the majority, I believe no reasonable finder 

of fact could find beyond a reasonable doubt on this record 

that the State established that Brauer’s conduct of touching 

J.N. could be “reasonably construed as being for the purpose 

of [Brauer’s] sexual arousal or gratification” under Neb. Rev. 

Stat. § 28-318(5)(Cum. Supp. 2012).

The undisputed facts of the incident giving rise to this case 

are recited by the district court and repeated by the majority. 

The district court found that the incident can be described as 

having “happened once, over clothes and involved two fingers.” The district court states that “[t]he issue presented in this 

case is whether the State submitted sufficient evidence to prove 

beyond a reasonable doubt that [Brauer’s] touching of [J.N.] 

was ‘sexual contact’ as that term is defined in the law.”

The district court made a finding that 4-year-old J.N. had a 

“phase of striking men in the genital area.” The district court 

further found there was “a list of people that had been hit in the 

genitals by [J.N.] during this 3-4 week ‘phase’ when he would 

do such a thing: . . . his father, his brother and . . . (a family 

friend) were referenced.” Contrary to the majority, I do not 

read the district court’s order as having found that J.N. did not 

hit Brauer in the crotch. To the contrary, the district court summarizes Brauer’s testimony as follows: “J.N. struck [Brauer] in 

the genitals [and Brauer] wanted to show [J.N.] how that felt so 

he struck [J.N.] or poked him there to do so.”

This case was tried to the court, and we have the advantage of particularized findings on which the verdict relies. 
Nebraska Advance Sheets

96 287 NEBRASKA REPORTS

Even with our limited standard of review, we can look at the 

record to determine whether there is evidence in the record 

which supports the findings of fact. The district court found 

there was sexual conduct by Brauer based on “direct evidence in the form of the admissions” of Brauer to Lt. Keith 

Andrew. In particular, the district court found that Brauer 

“acknowledge[d] a release of hormones and/or adrenaline” 

after touching J.N., and it is this finding of fact which the 

district court characterizes as the admission that serves as the 

basis for the conviction. Indeed, the district court’s emphasis 

on “hormones and/or adrenaline” is demonstrated by the district court’s reference to this phrase three times in the opinion. 

Further, the district court equates—incorrectly in my view—

hormones and adrenaline.

The district court quotes Brauer’s interview with Lieutenant 

Andrew at length, but nowhere in the quote does Brauer use 

the word “adrenaline.” And as both the district court and the 

majority note, although Lieutenant Andrew uses the word 

“sexual” a number of times when questioning Brauer, Brauer 

never adopts the term. So we cannot say that Brauer used the 

word “hormone” in the sense of a sex-specific hormone.

As for the word “adrenaline” on which the district court 

heavily relies, it is used once by Lieutenant Andrew in the 

lengthy interview and, as I read it, Brauer is describing the 

feeling he experienced when he got hit in the genitals, or its 

use is ambiguous, but it does not describe beyond a reasonable doubt the feelings he experienced as a result of touching 

J.N. In the passage, Lieutenant Andrew and Brauer are talking 

over each other rather than clearly engaging in a questionand-answer exchange. The passage which includes the critical 

word “adrenaline” reads as follows:

LT. KEITH ANDREW: Maybe like an adrenalinetype rush?

NATHAN BRAUER: Yeah.

LT. KEITH ANDREW: Like a — like a release of 

some hormone that had a sexual connotation to it?

NATHAN BRAUER: Well, it probably was a little bit 

of that because I got racked, and I wanted to tell him basically don’t do this.
Nebraska Advance Sheets

JACOBITZ v. AURORA CO-OP 97

Cite as 287 Neb. 97

Even if we accept the finding of the district court that 

Brauer admitted he experienced an “adrenaline” rush as a result 

of touching J.N., such facts do not constitute proof that the 

touch was “for the purpose of sexual arousal or gratification.” 

The key issue is not what sensation Brauer experienced after 

he touched the child, but, rather, what motivated him to touch 

J.N. in the first place. The only evidence of this is Brauer’s 

statement that he was reacting to the child’s striking him in the 

genitals in an effort to stop such conduct. Of course, the reaction was inappropriate and ill advised, but that does not mean 

that it was for the purpose of sexual arousal or gratification. 

In my view, there is no evidence in this record upon which 

a finder of fact could reasonably conclude beyond a reasonable doubt that Brauer touched the child for that purpose. His 

actions may have constituted negligent child abuse or some 

other offense, but not the offense of sexual assault with which 

he was charged.

Wright and Stephan, JJ., join in this dissent.

John Jacobitz, appellee, v. 

Aurora Cooperative, appellant.

___ N.W.2d ___

Filed December 27, 2013. No. S-13-091.

1. Judgments: Appeal and Error. An appellate court independently reviews questions of law decided by a lower court.

2. Judgments: Jurisdiction. A jurisdictional issue that does not involve a factual 

dispute presents a question of law.

3. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire 

jurisdiction of an appeal, the party must be appealing from a final order or 

a judgment.

4. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue 

2008), an appellate court may review three types of final orders: (1) an order that 

affects a substantial right and that determines the action and prevents a judgment, 

(2) an order that affects a substantial right made during a special proceeding, and 

(3) an order that affects a substantial right made on summary application in an 

action after a judgment is rendered.

5. Workers’ Compensation: Appeal and Error. A party can appeal an order from 

the Workers’ Compensation Court if it affects the party’s substantial right.