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In re Kyle O.9/27/2005
one offers both the admissible and inadmissible parts, the trial court may reject the entire offer. Holman v. Papio-Missouri River Nat. Resources Dist., 246 Neb. 787, 523 N.W.2d 510 (1994). We find no abuse of discretion in the exclusion of the counselor's letter.
Sufficiency of Evidence
Pursuant to Neb. Rev. Stat. § 43-279(2) (Reissue 2004), when an adjudication is based upon § 43-247(1), the allegations must be proved beyond a reasonable doubt. In re Interest of Cory P., 7 Neb. App. 397, 584 N.W.2d 820 (1998).
The State sought adjudication on the basis that Kyle committed a sexual assault. Section 28-320(1) states that
ny person who subjects another person to sexual contact (a) without consent of the victim, or (b) who knew or should have known that the victim was physically or mentally incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault in either the second degree or third degree.
Because the State does not assert that Kyle caused serious personal injury to S.S., the alleged sexual assault in the instant case would "be in the third degree and a Class I misdemeanor." Section 28-320(3).
Neb. Rev. Stat. § 28-318(5) (Cum. Supp. 2004) defines "sexual contact." Because Kyle's argument does not address or contest the physical touching portion of the definition, we confine our attention to that portion of the definition which states " exual contact shall include only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party." Id.
We reject Kyle's argument that the decision in State v. Hulshizer, 245 Neb. 244, 512 N.W.2d 372 (1994), "requires that we give all reasonable explanations equal weight and proof beyond a reasonable doubt cannot be found just because one explanation points towards guilt." Brief for appellant at 8.
Hulshizer concerned an alleged abuse of a vulnerable adult. There, a female certified nurse's aide in a nursing home facility walked into a bathroom and found the defendant, a male certified nurse's aide, seated on the toilet with a female resident of the care facility sitting on the defendant's lap. The elderly resident suffered from senile dementia and Parkinson's disease. She was wearing her briefs in place, but had her dress pulled up around her buttocks. Neither the defendant nor the resident had his or her genitalia exposed; however, the witness testified that she saw the defendant trying to zip up his pants. The Nebraska Supreme Court stated that under those circumstances, any evidence of sexual arousal or gratification was entirely circumstantial. The Supreme Court recited the principle that a reasonable inference from circumstantial evidence is to be taken most favorably to the accused when the circumstantial evidence is the only basis upon which to support a conviction and the circumstantial evidence is reasonably susceptible of two interpretations, one of guilt and the other of nonguilt, and neither inference is stronger than the other. In reversing the jury's conviction of the defendant, the Supreme Court explained that the inference that the defendant sexually abused the resident was not stronger than the inference that the defendant fell backward onto the toilet and pulled her onto his lap to prevent her from falling onto the floor.
In State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995), though not discussing Hulshizer, the Nebraska Supreme Court rejected the "accused's rule," which is the principle from Hulshizer upon which Kyle relies. In Pierce, the Supreme Court "again overrule those cases espousing the accused's rule as an appropriate standard of
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