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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE INTEREST OF GUNNER B.

Cite as 312 Neb. 697

In re Interest of Gunner B., a child 

under 18 years of age.

State of Nebraska, appellee, v. 

Gunner B., appellant.

___ N.W.2d ___

Filed October 21, 2022. No. S-21-949.

1. 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. 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.

Appeal from the County Court for Otoe County: Robert B. 

O’Neal, Judge. Affirmed.

Angela M. Minahan, of Reinsch, Slattery, Bear, Minahan & 

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

Jenniffer Panko-Rahe, Otoe County Attorney, and Seth W. 

Hawkins for appellee.

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

The State of Nebraska filed a petition against the appellant, 

Gunner B., alleging that he was a child within the meaning 

of Neb. Rev. Stat. § 43-247(1) (Reissue 2016). The petition 

Nebraska Supreme Court Online Library

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

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IN RE INTEREST OF GUNNER B.

Cite as 312 Neb. 697

further alleged that Gunner had committed sexual assault in 

the third degree against M.M. as that crime is set forth in Neb. 

Rev. Stat. § 28-320(1) and (3) (Reissue 2016). Following an 

adjudication hearing, the Otoe County Court, sitting as a juvenile court, entered an order finding that Gunner was a child 

within the meaning of § 43-247(1). The case was set for disposition, and Gunner also moved for a new trial. The juvenile 

court denied Gunner’s motion for new trial, and he appealed. 

We moved this case to our docket. We affirm.

FACTUAL BACKGROUND

On September 22, 2020, the State filed a petition which 

alleged that Gunner came within the meaning of § 43-247(1) 

as a juvenile who has committed an act which would constitute a misdemeanor, infraction, or violation of a city or village 

ordinance and who was 11 years of age or older at the time 

the act was committed. The petition also alleged that Gunner 

had violated § 28-320(1) and (3) by subjecting M.M. to sexual 

contact when he either knew or should have known that M.M. 

was physically or mentally incapable of resisting or appraising 

the nature of such conduct.

A hearing was held on the matter on September 16, 2021. 

The evidence presented showed that M.M. is the daughter of 

Tia T. and Nicholas M. M.M.’s precise date of birth is not 

evident from the record. However, it appears that at the time 

of the proceedings in this case, M.M. was 6 years old, but had 

been 5 years old in July 2020, when the alleged event occurred. 

Gunner is Tia’s half brother. Again, the record is not perfectly 

clear, but it seems that Gunner was 15 years old at the time of 

these events and was 16 years old at the time of the adjudication hearing.

On July 31, 2020, Nicholas arrived at the home of Cheryl S., 

the mother of both Gunner and Tia, to pick up M.M. After calling out M.M.’s name and not getting a response, Nicholas went 

into the basement to look for M.M. According to Nicholas, 

Gunner was sitting on the floor with his legs over M.M.’s legs, 
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IN RE INTEREST OF GUNNER B.

Cite as 312 Neb. 697

rubbing M.M.’s vagina with his fingers. According to Nicholas, 

an erection was visible through Gunner’s shorts. Nicholas left 

with M.M. and later took her to a hospital for a sexual assault 

examination. The report showed no male DNA or semen, and 

M.M. did not make any statements against Gunner at any point 

during these proceedings.

Gunner testified and denied touching M.M. in a sexual manner. Gunner claimed that M.M. was urinating into the floor 

drain at the time Nicholas entered the basement. Gunner also 

testified that Nicholas smelled of marijuana and was acting 

erratically when he left the house with M.M.

Tia testified that she had been in a relationship with Nicholas 

for about 9 years and that both she and Nicholas had dealt with 

addiction prior to meeting each other. After they began dating, 

Tia and Nicholas decided to get sober together. While the two 

have largely refrained from any use of methamphetamine since 

2013, they both continue to drink on occasion. According to 

Tia, Nicholas had a brief relapse during their relationship and 

admitted to smoking marijuana at his grandfather’s funeral. 

The two had also previously shared a “THC . . . vaping pen” 

with friends at a backyard get-together.

Cheryl testified that M.M. has a history of urinating into 

the floor drain in the basement bathroom of Cheryl’s home 

and that M.M. continued this behavior despite having been 

reprimanded for doing so in the past. Cheryl testified that after 

Nicholas left her home with M.M. on the day of the incident, 

Gunner called to tell her what happened and explained that 

M.M. had been urinating into the floor drain. Cheryl also testified that a few days prior to the July 2020 incident, Nicholas 

had smelled of marijuana and Cheryl had asked him to leave 

her home.

On September 28, 2021, the juvenile court issued an 

order finding that Gunner was a child within the meaning 

of § 43-247(1). The juvenile court scheduled a dispositional 

hearing for December 2021. Gunner moved for a new trial 

in October 2021, arguing that the decision was not sustained 
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IN RE INTEREST OF GUNNER B.

Cite as 312 Neb. 697

by sufficient evidence. Gunner’s motion was denied by the 

juvenile court on October 28. Gunner appeals from the court’s 

adjudication order. 1 According to statements made at oral argument in this case, Gunner’s dispositional hearing had not yet 

been held.

ASSIGNMENTS OF ERROR

Gunner has assigned, restated and renumbered, that the 

juvenile court erred in finding that he subjected M.M. to sexual 

contact because the evidence presented at trial was insufficient 

to (1) prove that M.M. was mentally or physically incapable of 

resisting or appraising the nature of the conduct or that Gunner 

knew or should have known of that lack of capacity, (2) prove 

sexual arousal or gratification of either party, and (3) support a 

finding of guilt beyond a reasonable doubt.

STANDARD OF REVIEW

[1] 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

ANALYSIS

M.M.’s Mental or Physical Capacity

Gunner first assigns that the State failed to prove, beyond 

a reasonable doubt, that he knew or should have known that 

1 See In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004). 

See, also, In re Interest of Jordan B., 300 Neb. 355, 913 N.W.2d 477 

(2018); In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012); 

In re Interest of C.H., 277 Neb. 565, 763 N.W.2d 708 (2009); In re Interest 

of Tyler F., 276 Neb. 527, 755 N.W.2d 360 (2008); In re Interest of Jeffrey 

K., 273 Neb. 239, 728 N.W.2d 606 (2007); In re Interest of M.L.S., 234 

Neb. 570, 452 N.W.2d 39 (1990).

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

3 Id.
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IN RE INTEREST OF GUNNER B.

Cite as 312 Neb. 697

M.M. was mentally or physically incapable of resisting or 

appraising the nature of the conduct as set forth in § 28-320(1).

In In re Interest of K.M.,

 4 this court discussed the lack-ofcapacity defense under Neb. Rev. Stat. § 28-319(1)(b) (Reissue 

2016) that a defendant “knew or should have known that the 

victim was mentally or physically incapable of resisting or 

appraising the nature of his or her conduct.” The language at 

issue in In re Interest of K.M. is nearly identical to the language of § 28-320(1)(b), which is at issue here.

In In re Interest of K.M., we held that

to prove a lack-of-capacity sexual assault on the basis of a 

mental impairment . . . the State must prove beyond a reasonable doubt that the victim’s impairment was so severe 

that he or she was “mentally . . . incapable of resisting” or 

“mentally . . . incapable of . . . appraising the nature of” 

the sexual conduct with the alleged perpetrator. 5

We further held that while expert testimony was admissible, 

and might in some circumstances be necessary, it was not 

required in each case. 6

The State argues that it presented sufficient evidence when it 

produced evidence that M.M. was only 5 to 6 years old. While 

acknowledging the absence of Nebraska case law holding that 

“young age alone can satisfy the incapable element,” 7 the State 

directs this court to decisions holding as much in other jurisdictions, highlighting the Pennsylvania Supreme Court’s case 

in Com. v. Rhodes.

 8

In Rhodes, a Pennsylvania statute criminalized sexual 

intercourse with any person “‘who is so mentally deranged 

or deficient that such person is incapable of consent’” 9—which 

4 Id.

5 Id. at 646, 910 N.W.2d at 89.

6 See In re Interest of K.M., supra note 2.

7 Brief for appellee at 11.

8 Com. v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986).

9 Id. at 544, 510 A.2d 1220.
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IN RE INTEREST OF GUNNER B.

Cite as 312 Neb. 697

language is similar to Nebraska’s defense under § 28-320(1)(b) 

as interpreted by this court in In re Interest of K.M. The 

Pennsylvania Supreme Court found that age fit within this 

definition and concluded that, as a matter of law, an 8-year-old 

child was “‘so mentally deficient,’ . . . that she was incapable 

of consenting to an act whose nature she could not appreciate 

or comprehend.” 10

Other courts have come to conclusions similar to the one 

made by the Rhodes court, finding that young children are 

incapable of understanding the nature of sexual conduct as a 

matter of law and, further, that the view that underage children cannot legally consent to sex comes from the common 

law. 11 Along the same lines, the U.S. Court of Appeals for the 

Seventh Circuit has observed that “[c]ertainly, many children, 

and indisputably all children under a certain age, are incapable 

of appraising the nature of sexual conduct.” 12

We agree with this reasoning. We find that common sense 

alone establishes that a child of 5 or 6 years of age is among 

those that are “indisputably” under an age when children are 

capable of appraising the nature of sexual conduct. 13 Moreover, 

we note that the Legislature has generally acknowledged that 

children under a certain age simply lack capacity to understand 

or be responsible for their actions. 14 Accordingly, we hold that 

the State adequately proved in this case that M.M. was mentally incapable of appraising the nature of the sexual conduct 

at issue.

We need not, and therefore do not, establish in this case any 

particular age under which a child is incapable of appraising 

the nature of sexual conduct. Consequently, to the extent the 

State attempts to establish in future cases that an older alleged 

10 Id. at 559, 510 A.2d at 1228.

11 In re B.W., 313 S.W.3d 818 (2010) (collecting cases). 

12 U.S. v. Walker, 931 F.3d 576, 582 (7th Cir. 2019) (emphasis supplied).

13 See id.

14 See § 28-320(1)(b).
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IN RE INTEREST OF GUNNER B.

Cite as 312 Neb. 697

child victim was incapable of appraising the nature of sexual 

conduct, it may be advisable to adduce evidence regarding the 

development and understanding of that particular child.

We therefore turn to the question of whether Gunner knew 

or should have known of this lack of capacity. Gunner testified that he knew M.M. as his niece, or as the daughter of 

his sister, and his testimony confirmed that he was aware of 

her age. Gunner also indicated that he had previously babysat 

M.M. for Tia. When asked if he had touched M.M. in the way 

alleged by the petition, Gunner replied that he would “never” 

do that, suggesting that he was aware that such behavior was 

not acceptable.

We therefore conclude that Gunner should have known that 

M.M. was mentally incapable of resisting or appraising the 

nature of Gunner’s conduct. This assignment of error is without merit.

Evidence of Sexual Arousal 

or Gratification

Gunner next assigns the evidence was insufficient to establish that he touched M.M. for the purpose of sexual arousal 

or gratification. As used in § 28-320, sexual contact “includes 

only such conduct which can be reasonably construed as being 

for the purpose of sexual arousal or gratification of either 

party.” 15

Gunner centers his argument on In re Interest of Kyle O.,

 16

a 2005 case wherein the Nebraska Court of Appeals explained 

in detail what type of evidence or circumstances must be 

considered by a court in determining whether a minor’s conduct can be reasonably construed as being for the purpose of 

sexual arousal or gratification. Gunner contends that the State 

failed to present any evidence related to Gunner’s age or maturity and that thus, per the standards laid out in In re Interest 

15 See Neb. Rev. Stat. § 28-318(5) (Supp. 2019) (emphasis supplied).

16 In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).
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Nebraska Supreme Court Advance Sheets

312 Nebraska Reports

IN RE INTEREST OF GUNNER B.

Cite as 312 Neb. 697

of Kyle O., the court cannot have reasonably inferred that 

Gunner’s actions were intended to sexually gratify or arouse 

either M.M. or himself.

In In re Interest of Kyle O., a 14-year-old child, Kyle O., 

was adjudicated under § 43-247 for sexual contact with a 

5-year-old child, S.S., in violation of § 28-320. 17 A witness 

observed Kyle standing outside with S.S. and three other 

children. Kyle then pulled down S.S.’ pants and grabbed S.S.’ 

penis to show the other children “‘how small it was.’” 18 At 

trial, the witness was asked whether it looked like the contact 

was for sexual gratification, and the witness responded that he 

did not know. 19

On appeal, Kyle asserted that the evidence was insufficient 

to establish whether sexual contact had occurred, because there 

was no evidence that Kyle had touched S.S.’ penis for sexual 

gratification. The Court of Appeals reversed the adjudication 

and remanded the cause with directions to dismiss, finding 

that there was no evidence that Kyle was sexually aroused and 

that yet, “[i]t would be very easy to construe Kyle’s conduct 

as being for the purpose of humiliating, bullying, or annoying S.S.” 20

We find In re Interest of Kyle O. inapplicable. In that case, 

there was no evidence regarding sexual arousal. But here, the 

State presented, and the court found credible, testimony from 

Nicholas that Gunner had an erection visible through his clothing while touching M.M.’s vagina.

After observing the witnesses and hearing their testimony, 

the juvenile court accepted Nicholas’ version of the facts over 

Gunner’s version, a credibility determination to which we defer 

on appeal. Nicholas’ testimony showed that Gunner was visibly aroused at the time he was touching M.M. As such, his 

17 Id.

18 Id. at 63, 703 N.W.2d at 911.

19 In re Interest of Kyle O., supra note 16.

20 Id. at 72, 703 N.W.2d at 918.
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IN RE INTEREST OF GUNNER B.

Cite as 312 Neb. 697

actions could reasonably be construed as being for his own 

sexual arousal or gratification. We find this assignment of error 

without merit.

Sufficiency of Evidence

Finally, Gunner assigns that even when viewed in a light 

most favorable to the prosecution, the State’s evidence and 

witnesses do not eliminate reasonable doubt as to whether 

Gunner committed a sexual assault in the third degree against 

M.M. because the State’s evidence either lacked credibility or 

conflicted with other credible evidence presented by Gunner.

Gunner argues that Nicholas’ testimony, in which he stated 

that he saw the assault occur, directly conflicts with Gunner’s 

own testimony, where Gunner denied touching M.M. in a 

sexual manner. Gunner also argues that Nicholas’ testimony 

is in conflict with his own prior statements because Nicholas 

testified that he saw Gunner touching M.M. in a sexual manner 

and that an erection was visible through Gunner’s shorts at the 

time. But when Nicholas texted Cheryl immediately following 

the incident, he did not mention that Gunner had an erection 

and also did not include this piece of information in his statement to police.

The standard of review for juvenile cases is de novo on the 

record; however, when evidence is in conflict, this court may 

give weight to the fact that the lower court observed the witnesses and accepted one version of the facts over the other. 21

Here, the juvenile court found that Nicholas’ testimony 

regarding what happened and what he witnessed firsthand 

was more credible than either Gunner’s version of events or 

Cheryl’s testimony. Nicholas stated that he saw Gunner touching M.M.’s sexual or intimate parts. He testified to factors 

that would indicate Gunner was committing this act for sexual 

arousal or gratification, as evidenced by Nicholas’ testimony 

that Gunner had a visible erection while touching M.M. While 

21 See In re Interest of K.M., supra note 2.
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IN RE INTEREST OF GUNNER B.

Cite as 312 Neb. 697

Nicholas’ testimony was directly contradicted by Gunner, the 

juvenile court observed the witnesses and accepted one version 

of the facts over the other. We give weight to the court’s observations and determinations, and when viewed in this light, the 

evidence is sufficient to prove Gunner’s guilt beyond a reasonable doubt. This assignment of error is without merit.

CONCLUSION

We affirm the decision of the juvenile court.

Affirmed.