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In re Kyle O.9/27/2005
Irwin, Sievers, and Cassel, Judges.
INTRODUCTION
The county court for Burt County, sitting as a juvenile court, adjudicated Kyle O. under Neb. Rev. Stat. § 43-247(1) (Reissue 2004) for sexual contact with another child, in violation of Neb. Rev. Stat. § 28-320 (Reissue 1995). Kyle appeals. Because we conclude that (1) the trial court did not abuse its discretion in excluding an exhibit that was only partially admissible and (2) the State presented insufficient evidence to establish that "sexual contact" occurred, we reverse, and remand with direction to dismiss.
BACKGROUND
The State filed an amended petition alleging that Kyle committed two instances of third degree sexual assault in violation of § 28-320 and seeking adjudication of Kyle under § 43-247(1). Kyle denied the allegations, and the court subsequently conducted a trial.
At trial, the State presented one witness, an adult apparently related to Kyle. The State's witness testified that his children, who were ages 10, 9, and 7, were Kyle's cousins and that the witness' family lived " ight across the alley" from Kyle. Kyle and the witness' children often played together and had been doing so over a period of years. The witness stated that in May 2004, he was in a detached garage near his house, working on a car, and he was observing the children playing in the yard while his wife was away from home. He testified that because of some prior incidents of an inappropriate nature, he was particularly attentive. He claimed that prior to the incident in question, he had caught Kyle and his children underneath the bed in the basement of the witness' house, "disclothing Barbie dolls, showing the kids what to do with Barbie dolls."
The State's witness testified that on the date in question, Kyle was 14 years of age. On that occasion, the witness saw Kyle pull down the pants of another child, S.S., who was 5 years old, and observed Kyle "grab [S.S.'] penis and hold it and showed my kids how small it was." Upon observing Kyle's actions, the witness came out of the door of the garage, "hollered" at Kyle, and saw Kyle turn away and fold his arms as if to appear that he had done nothing. S.S. resided in the same neighborhood and occasionally came over to play with the witness' children. The witness then told all the children to go home, and S.S. pulled up his own pants.
On cross-examination, the witness testified that he initially told no one other than his wife about the incident. The witness' testimony conflicted as to when he reported the event to police. On one hand, he testified that it " ouldn't have been too many days afterwards" and that he did not "think it was even a week"; but shortly thereafter, he also testified that a meeting on July 22, 2004, was the first time he talked to the police. He attempted to explain, "We talked to the police first, but we went to the police, because they was family, we tried to do this without going through all this."
The witness claimed that he observed the event, which took about 2 seconds, through an open window in the garage and that he heard Kyle speak, telling the witness' children how small S.S.' penis was. When the witness was asked whether "it look like [the contact] was for sexual gratification," he responded that he did not know.
After the State rested, Kyle offered no evidence other than a letter from Kyle's counselor, which stated in pertinent part:
I have discussed with Kyle the allegations of inappropriate touching during several sessions. Kyle has always denied sexually or non-sexually touching anyone. I believe that Kyle is telling the truth. Kyle appears to be immature for
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