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IN RE INTEREST OF K.M.

Cite as 299 Neb. 636

In re Interest of K.M., a

under 18 years of age

State of Nebraska, appellee,

v. K.M., appella

___ N.W.2d ___

Filed April 20, 2018. No. S-16-1205.

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.

2. Sexual Assault. A victim’s lack of consent is not an element of the 

crime of sexual assault when the victim is incapable of resisting or 

appraising the nature of his or her conduct.

3. ____. To render an individual incapable to consent to sexual conduct, a 

mental impairment must be severe. A person in this category is treated 

as equivalent to a severely intoxicated or an unconscious person. Not 

every mental challenge or impairment is so severe that the person lacks 

the capacity to consent.

4. ____. Lack-of-capacity sexual assault under Neb. Rev. Stat. 

§ 28-319(1)(b) (Reissue 2016) requires on the part of the victim “a 

significant abnormality, such as severe intoxication or other substantial 

mental or physical impairment.”

5. Sexual Assault: Proof. To prove a lack-of-capacity sexual assault on 

the basis of a mental impairment, under Neb. Rev. Stat. § 28-319(1)(b) 

(Reissue 2016), 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.

6. Sexual Assault: Evidence: Testimony. Under Neb. Rev. Stat. 

§ 28-319(1)(b) (Reissue 2016), while expert testimony as to a victim’s 

Nebraska Supreme Court Online Library

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

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mental incapacity may be probative, expert testimony is not required in 

every case of lack-of-capacity sexual assault based on the victim’s mental illness or impairment.

Petition for further review from the Court of Appeals, Inbody,

Pirtle, and Riedmann, Judges, on appeal thereto fro

Separate Juvenile Court of Douglas County, Vernon Dan

Judge. Judgment of Court of Appeals affirmed.

Thomas C. Riley, Douglas County Public Defender, and 

Timothy F. Shanahan for appellant.

Donald W. Kleine, Douglas County Attorney, Anthony 

M. Hernandez, and Laura E. Lemoine, Senior Certified Law 

Student, for appellee.

Heavican, C.J., Cassel, Stacy, and Funke, JJ., an

and Samson, District Judge

Funke, 

I. NATURE OF CASE

The separate juvenile court of Douglas County adjudicated 

K.M. as being a “juvenile who has committed an act which 

would constitute a felony under the laws of this state”1 by 

committing first degree sexual assault, having “subject[ed] 

another person to sexual penetration [and] 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.”2

On appeal, the Nebraska Court of Appeals reversed the 

adjudication, finding insufficient evidence to uphold K.M.’s 

adjudication by proof beyond a reasonable doubt.3 The State 

1 Neb. Rev. Stat. § 43-247(2) (Reissue 2016).

2 Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016).

3 In re Interest of Kalen M., No. A-16-1205, 2017 WL 4675799 (Neb. App. 

Oct. 17, 2017) (selected for posting to court website).
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petitioned for further review, which we granted. Because the 

State failed to prove beyond a reasonable doubt that K.M. 

knew or should have known that D.F., the alleged victim, “was 

mentally or physically incapable of resisting or appraising the 

nature of the conduct,” we agree with the Court of Appeals and 

affirm its ruling.

II. BACKGROUND

Omaha Police Department Det. Kristine Love received a 

report in early 2016 from Child Protective Services that a 

school teacher had reported D.F.’s report of sexual contact with 

K.M. while at D.F.’s home. D.F. has Asperger syndrome.4 Love 

observed a forensic interview that was conducted with D.F. at 

Project Harmony, a child advocacy center, and then conducted 

her own interview with D.F.

After interviewing D.F., Love contacted K.M. at his school 

and asked him to speak with her in an interview at police headquarters, which K.M. agreed to do. Upon the completion of the 

interview, Love arrested K.M. for first degree sexual assault 

based on statements he made during the interview. K.M. turned 

13 years old shortly after the alleged incident but before being 

interviewed by Love; D.F. was 12 years old.

The Douglas County Attorney filed a petition to adjudicate 

K.M. under § 43-247(2). The petition alleged that K.M. committed conduct that would constitute first degree sexual assault 

under § 28-319(1)(b) based on D.F.’s mental impairment. K.M. 

denied the allegation in the petition.

1. Adjudicatio

On November 4, 2016, an adjudication hearing was held 

before the separate juvenile court of Douglas County. Because 

4 See Asperger Syndrome, Autism Speaks, https://www.autismspeaks.org/

what-autism/asperger-syndrome (last visited Apr. 11, 2018) (indicating 

that what was previously diagnosed as Asperger syndrome has now been 

categorized as autism spectrum disorder since the publication of the 

DSM-5 diagnostic manual in 2013).
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K.M. denied the petition’s allegation, the State had the burden 

to prove his guilt by proof beyond a reasonable doubt.5

(a) Video Interview

Love testified about the investigation and her interview 

with K.M. A video recording of the interview was entered 

into evidence.

The video shows that K.M. waived his Miranda6 rights 

at the beginning of the interview. Love advised K.M. of the 

allegations made by D.F., which K.M. initially denied. K.M. 

stated that he would never do that to D.F. because it would 

be wrong, explaining that D.F. has autism and does not know 

right from wrong and that it would be as if K.M. were corrupting him. After approximately 40 minutes, K.M. admitted 

that his penis may have penetrated D.F.’s anus approximately 

2 centimeters.

(b) Other Evidence

The State also presented the testimony of Sarah Cleaver, a 

pediatric nurse practitioner at Project Harmony. Cleaver performed a medical examination of D.F. at Project Harmony’s 

medical clinic and authored a report of her examination of 

D.F. In doing so, she relied on her examination; a medical history from D.F.’s mother, which included the fact that D.F. has 

Asperger syndrome and attention deficit hyperactivity disorder; 

and D.F.’s statements in the Child Protective Services report 

and the Project Harmony forensic interview. Cleaver’s diagnosis of D.F. was suspected child sexual abuse, constipation, and 

anal fissures. She attributed D.F.’s anal fissures to his history 

of constipation, but said that they could have also been caused 

by the penile-anal penetration that he reported.

The court admitted Cleaver’s report, which included D.F.’s 

allegations from the Child Protective Services report and 

5 Neb. Rev. Stat. § 43-279(2) (Reissue 2016).

6 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 

(1966).
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Cleaver’s examination, over K.M.’s objection on hearsay and 

the Confrontation Clause. The court overruled the objections 

on the basis of the hearsay exception for statements made for 

the purpose of medical diagnosis.

On cross-examination, Cleaver said that she thought the 

most likely explanation for D.F.’s anal fissures was his constipation, as D.F. reported to her he had a large stool and then 

his bottom began to bleed. She agreed that she could not reach 

any conclusion about sexual assault from the anal fissures. 

She did not give any testimony or opinion about D.F.’s mental 

condition beyond stating that this diagnosis had been reported 

to her.

Neither D.F. nor K.M. testified at the hearing. And no specific evidence about D.F.’s Asperger syndrome diagnosis or 

mental condition was offered at the hearing.

The juvenile court issued an order adjudicating K.M. under 

§ 43-247(2), finding the State had proved its case by proof 

beyond a reasonable doubt. K.M. appealed.

2. Court of Appeals’ O

On appeal to the Court of Appeals, K.M.’s sole assignment 

of error was that “[t]he Juvenile Court erred in finding that 

[K.M.] subjected D.F. . . . to sexual contact because the evidence presented at trial was insufficient to support a finding 

of guilt.”

The Court of Appeals concluded that the State had proved 

beyond a reasonable doubt that K.M. subjected D.F. to sexual 

penetration, relying on K.M.’s confession in the interview. 

But it concluded that the State had failed to prove that K.M. 

“knew or should have known that [D.F.] was mentally or 

physically incapable of resisting or appraising the nature of 

his conduct.”7

The Court of Appeals said that to prove a sexual assault 

under § 28-319(1)(b), the State must establish (1) a significant 

7 In re Interest of Kalen M., supra note 3, 2017 WL 4675799 at *2.
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abnormality, such as severe intoxication or other substantial 

mental or physical impairment, on the part of the alleged victim and (2) knowledge of the abnormality on the part of the 

alleged attacker.

The court further said:

[T]here was no evidence presented by the State regarding 

where [D.F.’s] autism fell on the autism spectrum, whether 

[D.F.’s] autism would render [him] incapable of resisting 

or appraising the nature of [K.M.’s] conduct, and whether 

[K.M.] knew or should have known of [D.F.’s] inability to 

resist or appraise the nature of [K.M.’s] conduct.8

It concluded that the State had failed to prove its allegation 

beyond a reasonable doubt, because it did not present any evidence of D.F.’s inability to resist or appraise the nature of his 

conduct, beyond reports that D.F. had autism. As a result, the 

Court of Appeals reversed the adjudication.

The State petitioned for further review, which we granted.

III. ASSIGNMENTS OF ERROR

The State argues that the Court of Appeals “erred in determining that the State failed to adduce sufficient evidence that 

[K.M.] knew or should have known that [D.F.] was mentally 

or physically incapable of resisting or appraising the nature of 

his conduct.”

IV. 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.9 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.10

8 Id.

9 In re Interest of Elainna R., 298 Neb. 436, 904 N.W.2d 689 (2017).

10 In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).
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V. ANALYSIS

Before we reach the merits of this matter, we will address 

a proposition of law articulated by the State during oral argument. The State asserted that on a claim of insufficiency of the 

evidence, an appellate court will not set aside a guilty verdict 

in a juvenile case where such verdict is supported by relevant 

evidence. The State seems to be importing into juvenile matters 

a standard of review applicable in adult criminal matters.

It is correct that Nebraska appellate courts have imported 

criminal standards into juvenile cases on other instances. For 

example, we have applied the same standard of review for a 

motion to suppress filed by a juvenile in juvenile court.11 In 

ordering restitution, juvenile courts are to consider factors 

similar to those utilized in the criminal restitution statute.12

The Court of Appeals has applied the criminal standard for 

withdrawal of a plea in the context of a request to withdraw an 

admission in a juvenile proceeding.13

However, in only one juvenile matter, In re Interest of 

McManaman,

14 did we apply a standard of review applicable in adult criminal proceedings. In that matter, we stated 

that we

“‘will not interfere with a verdict of guilty based on conflicting evidence unless, as a matter of law, the evidence 

is so lacking in probative force that it is insufficient to 

support the finding of guilt beyond a reasonable doubt. . 

. . A guilty verdict of the fact finder in a criminal case 

must be sustained if there is substantial evidence, taking 

the view most favorable to the State, to support it.’”15

Instead, in juvenile matters, we have routinely held that 

our review is de novo on the record and that an appellate 

11 See In re Interest of Miah S., 290 Neb. 607, 861 N.W.2d 406 (2015).

12 In re Interest of Laurance S., 274 Neb. 620, 742 N.W.2d 484 (2007).

13 In re Interest of Justin V., 18 Neb. App. 960, 797 N.W.2d 755 (2011).

14 In re Interest of McManaman, 222 Neb. 263, 383 N.W.2d 45 (1986).

15 Id. at 265-66, 383 N.W.2d at 47.
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court is required to reach a conclusion independent of the 

lower courts’ findings.16 We find this de novo standard of 

review to be most applicable to juvenile matters. As a result, 

we take this opportunity to disapprove of our holding in In 

re Interest of McManaman as it relates to importing into a 

juvenile matter the standard of review used in adult criminal 

proceedings.

In turning to the merits of the instant matter, § 43-247 

defines and delimits the boundaries of the jurisdiction of 

juvenile courts. Under § 43-247(2), juvenile courts may exercise jurisdiction over “[a]ny juvenile who has committed an 

act which would constitute a felony under the laws of this 

state . . . .”

When the State, as it did here, alleges that a juvenile has 

committed a felony and is thus subject to juvenile court jurisdiction under § 43-247(2), the juvenile is entitled to contest 

the allegations in an adjudication hearing.17 Where the juvenile 

denies the allegations, the State must prove its case by proof 

beyond a reasonable doubt.18

The felony that the State alleges K.M. committed constitutes 

first degree sexual assault under § 28-319, which provides:

(1) 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.

The State did not allege that K.M.’s act of sexually penetrating D.F. was “without the consent of the victim,” under 

§ 28-319(1)(a). Rather, it argues that K.M.’s conduct violated 

16 See In re Interest of Elainna R., supra note 9.

17 See § 43-279.

18 § 43-279(2).
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§ 28-319(1)(b), because he “knew or should have known that 

[D.F.] was mentally or physically incapable of resisting or 

appraising the nature of his or her conduct.”19

[2] A victim’s lack of consent is not an element of the crime 

of sexual assault when the victim is incapable of resisting or 

appraising the nature of his or her conduct.20 Thus, in this matter, the State was required to prove beyond a reasonable doubt 

that D.F. lacked the capacity to consent to the sexual penetration and that K.M. knew or should have known that D.F. lacked 

the capacity to consent.21

While K.M. acknowledged that D.F. was autistic and that 

he did not know right from wrong, such language reflects our 

application of the M’Naghten rule—to determine whether a 

person is not criminally responsible for his or her actions22—

not to determine whether a victim had the capacity to consent. 

Instead, the law of sexual assault has traditionally recognized 

certain circumstances under which an individual lacks the 

capacity to consent to sexual conduct and where sexual contact with that person thus constitutes sexual assault: where 

the victim is severely intoxicated—whether the intoxicant be 

administered by the defendant, another, or self-administered23; 

where the victim is unconscious24; and where the victim is 

“mentally incompetent.”25

19 Brief on petition for further review for appellee at 3.

20 State v. Rossbach, 264 Neb. 563, 650 N.W.2d 242 (2002).

21 See id.

22 See 9 A.L.R.4th 526 (1981).

23 Wayne R. LaFave, Criminal Law §§ 17.3(e) and 17.4(b) (6th ed. 2017). 

See, also, State v. Sanders, 269 Neb. 895, 697 N.W.2d 657 (2005) 

(intoxication); State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004); 

Rossbach, supra note 20; 3 Charles E. Torcia, Wharton’s Criminal Law 

§ 282 (15th ed. 1995).

24 LaFave, supra note 23. See, also, Freeman, supra note 23; State v. 

Moeller, 1 Neb. App. 1046, 510 N.W.2d 500 (1993).

25 LaFave, supra note 23, § 17.4(b) at 1151.
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We address in turn two issues regarding the requisite proof 

for a lack-of-capacity sexual assault under § 28-319(1)(b) 

based on a victim’s mental impairment: the type or severity of 

mental impairment required for an individual to lack the capacity to consent, and whether expert testimony is necessary to 

prove a lack of capacity based on mental impairment.

1. Severity of Me

Impairme

[3,4] To render an individual incapable to consent to sexual 

conduct, a mental impairment must be severe.26 A person in 

this category is treated as equivalent to a severely intoxicated 

or an unconscious person.27 Thus, not every mental challenge 

or impairment is so severe that the person lacks the capacity to 

consent.28 We have said lack-of-capacity sexual assault under 

§ 28-319(1)(b) requires on the part of the victim “a significant 

abnormality, such as severe intoxication or other substantial 

mental or physical impairment.”29

In Reavis v. Slominski,

30 this court considered a civil tort 

claim for battery based on an alleged sexual assault, but relied 

on and discussed Nebraska’s criminal sexual assault statutes 

in considering the issue of consent. The court was divided 

and issued four separate opinions, with none commanding a 

majority.31 However, some of the opinions in Reavis are helpful here.

The lead opinion by Justice Lanphier discussed the approach 

taken by other jurisdictions when considering consent and 

said that “[i]t would appear that issue of effective consent 

to sexual contact is generally only raised when the victim 

26 Rossbach, supra note 20.

27 LaFave, supra note 23.

28 See id.

29 Rossbach, supra note 20, 264 Neb. at 572, 650 N.W.2d at 250.

30 Reavis v. Slominski, 250 Neb. 711, 551 N.W.2d 528 (1996).

31 Id.
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suffers from an extreme mental handicap or deficiency.”32 One 

of the dissenting opinions, written by Justice Caporale and 

joined by Justice Fahrnbruch, said that “other jurisdictions 

have concluded that one has such capacity if one understands 

and appreciates the nature of the act of sexual intercourse, its 

character, and the probable or natural consequences which may 

attend it.”33 While the opinions in that case sharply disagreed 

on some aspects of the law of consent, there was a general 

consensus that to establish a lack of consent based on a mental 

impairment, the impairment must be severe.34

The Kansas Court of Appeals has articulated the following 

standard: “If an individual can comprehend the sexual nature 

of the proposed act, can understand he or she has the right to 

refuse to participate, and possesses a rudimentary grasp of the 

possible results arising from participation in the act, he or she 

has the capacity to consent.”35

[5] Thus, we hold that to prove a lack-of-capacity sexual assault on the basis of a mental impairment, under 

§ 28-319(1)(b), 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.

2. Necessity of Exp

Testim

Having found that proving lack-of-capacity sexual assault 

based on a mental impairment requires the State to prove that 

the victim’s impairment is so severe that he or she is mentally 

unable to resist or understand the nature of the sexual act, we 

32 Id. at 722, 551 N.W.2d at 538 (Lanphier, J.).

33 Id. at 743, 551 N.W.2d at 549 (Caporale, J., dissenting; Fahrnbruch, J., 

joins). See, also, State v. Johnson, 155 Ariz. 23, 745 P.2d 81 (1987).

34 See, generally, Reavis, supra note 30.

35 State v. Ice, 27 Kan. App. 2d 1, 5, 997 P.2d 737, 740 (2000).
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must also determine whether expert testimony is required to 

establish this fact.

Under Neb. Rev. Stat. § 27-702 (Reissue 2016), if scientific, 

technical, or other specialized knowledge will assist the trier of 

fact to understand the evidence or to determine a fact in issue, 

a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of 

an opinion or otherwise.

However, when an expert’s opinion on a disputed issue is a 

conclusion which may be deduced equally as well by the trier 

of fact with sufficient evidence on the issue, the expert’s opinion is superfluous and does not assist the trier in understanding 

the evidence or determining a factual issue.36

In State v. Collins, the Court of Appeals considered this 

question and concluded that “[w]hether expert testimony as to 

a victim’s mental or physical capacity to resist or to appraise 

the nature of the perpetrator’s conduct is indispensable in a 

prosecution under § 28-319(1)(b) must be approached on a 

case-by-case basis.”37

Several other jurisdictions have also considered the need for 

expert testimony and have concluded that a lay juror is able to 

assess the extent of a victim’s mental capacity in the context of 

lack-of-capacity sexual assaults.38

A person’s capacity to understand something is a factual 

issue for the jury and, like other facts, may properly be established by circumstantial evidence.39 More particularly, evidence 

explaining what a person knows and how the person came to 

know it may well give rise to an inference of incapacity.

36 Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).

37 State v. Collins, 7 Neb. App. 187, 202, 583 N.W.2d 341, 350-51 (1998).

38 See, Jackson v. State, 890 P.2d 587 (Alaska App. 1995); State v. Summers, 

70 Wash. App. 424, 853 P.2d 953 (1993); State v. Wallin, 52 Kan. App. 2d 

256, 366 P.2d 651 (2016); Fuentes v. State, 454 Md. 296, 164 A.3d 265 

(2017); State v. Hunt, 365 N.C. 432, 722 S.E.2d 484 (2012).

39 Jackson, supra note 38.
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While expert testimony as to a victim’s mental incapacity may be probative, and might be required in some factual 

situations, there is no basis for requiring the State to establish mental incapacity by expert testimony in every case.40

Evidence which establishes a victim’s inability to understand 

the nature and consequences of sexual intercourse is not the 

kind of technical evidence which requires medical testimony 

to decipher. Unlike evidence of medical or legal malpractice, 

or the functions of technical equipment, a witness’ comprehension of the basic consequences of his or her actions may be 

proved or disproved from his or her testimony and testimony 

as to behavior.

[6] As a result, we conclude that while expert testimony as 

to a victim’s mental incapacity may be probative, expert testimony is not required in every case of lack-of-capacity sexual 

assault based on the victim’s mental illness or impairment.

3. Applic

The State’s evidence that D.F. lacked the capacity to consent to the sexual penetration by K.M. is reducible to a secondhand report that D.F. had been diagnosed with Asperger 

syndrome. The State’s evidentiary showing was insufficient 

to prove beyond a reasonable doubt that D.F. was, in fact, 

incapable of resisting or appraising the nature of the sexual conduct.

The State presented no evidence about D.F.’s diagnosis. 

It presented no expert testimony on the nature of Asperger 

syndrome or how it affects an individual’s ability to resist or 

understand the nature of sexual conduct. D.F. did not testify, 

and the trier of fact was unable to judge D.F.’s level of mental 

impairment. No evidence was given about D.F.’s own ability to resist or understand sexual acts. The State apparently 

relies on the fact of the reported diagnosis and the testimony 

of K.M.

40 Summers, supra note 38.
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Given the dearth of evidence regarding D.F.’s mental ability, 

the State understandably focused its arguments in its appellate brief on the evidence that the penetration occurred and on 

K.M.’s statements showing that he knew that D.F. had autism 

and was “mentally slower than where he should be.”41 But the 

occurrence of the penetration is not the primary issue in dispute. And K.M.’s knowledge of D.F.’s autism does not establish that D.F.’s mental condition was so severe that he lacked 

the capacity to consent.

Moreover, K.M.’s statement that D.F. has autism and does 

not know right from wrong fails to show that D.F. lacked the 

capacity to consent. A 13-year-old boy’s comment bearing on 

the quality of D.F.’s moral reasoning does nothing to show that 

D.F. suffered from a mental impairment so severe that he was 

unable to resist or understand sexual conduct. Nor is K.M.’s 

comment about how it would be wrong for him to engage in 

sexual conduct with D.F. of any help to the State. The test for 

a lack-of-capacity sexual assault is not one of the defendant’s 

morality, but of the victim’s ability to resist or appraise the 

nature of the sexual conduct.

The State bears the burden, when proving sexual assault 

based on the victim’s lack of capacity, that the victim actually 

lacked the capacity to consent. It has not done so here.

VI. CONCLUSION

For the reasons set forth herein, we affirm the Court of 

Appeals’ reversal of the juvenile court’s adjudication.

Affirme

Miller-Lerman, J., participating on bri

Wright, J., not participating

41 Brief for appellee at 14.