Background
Fifteen-year-old Autumn A. lived in an all-female group home with K.D., also 15. K.D. testified that Autumn repeatedly subjected her to unwanted physical contact over approximately one month, including slapping her buttocks, lifting her breasts through her clothing, straddling her in bed, and cuddling or touching her despite repeated requests to stop. Two other residents corroborated seeing Autumn in K.D.’s bed and described K.D. telling Autumn to stop or becoming distressed afterward. Autumn denied the conduct.
The State alleged three acts of third-degree sexual assault involving K.D. and two other residents. The juvenile court dismissed the allegations involving the other residents for insufficient evidence but found beyond a reasonable doubt that Autumn subjected K.D. to sexual contact without consent, conduct that would constitute misdemeanor third-degree sexual assault. Autumn appealed, challenging the sufficiency of the evidence and arguing that trial counsel was ineffective for failing to object when a police officer discussed whether witnesses’ demeanor caused him to doubt their accounts.
The Court’s Holding
The Nebraska Court of Appeals affirmed the adjudication. Reviewing the record de novo while giving weight to the juvenile court’s credibility determinations, it held that the evidence established sexual contact beyond a reasonable doubt. Autumn intentionally touched clothing covering K.D.’s breasts and buttocks, and by straddling K.D. caused clothing covering Autumn’s own intimate parts to contact K.D.’s body. The repeated unwanted touching, including entering K.D.’s bed and cuddling her when others were not present, supported a reasonable inference that the contact was for sexual arousal or gratification.
The court also rejected Autumn’s ineffective-assistance claim. It declined to decide whether the 14th Amendment guarantees juveniles effective assistance of counsel in delinquency proceedings, instead assuming such a right and applying the Strickland framework because both parties relied on it. Even assuming counsel performed deficiently by not objecting to the officer’s testimony, Autumn could not show prejudice. The bench-trial judge was presumed to disregard inadmissible evidence, expressly recognized that credibility determinations belonged to the court, and gave no indication that he relied on the officer’s assessment.
Key Takeaways
- Repeated unwanted touching of clothing covering the breasts or buttocks can constitute sexual contact when the circumstances support an inference of sexual arousal or gratification.
- The court deferred to the juvenile judge’s resolution of conflicting testimony because that judge personally observed the witnesses.
- The court left unresolved whether juveniles possess a constitutional right to effective assistance in delinquency proceedings, but held that Autumn’s claim failed under Strickland for lack of prejudice.
Why It Matters
The decision illustrates that sexual purpose may be inferred from the surrounding circumstances and a pattern of conduct rather than direct evidence of a juvenile’s subjective intent. It also shows the difficulty of establishing prejudice from allegedly improper credibility testimony in a bench adjudication, where the judge is presumed to consider only competent evidence.
The opinion is a memorandum web opinion not designated for permanent publication and may be cited only as permitted by Nebraska Court of Appeals Rule § 2-102(E).