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In re Kyle O.9/27/2005
review." 248 Neb. at 548, 537 N.W.2d at 330. The Supreme Court adhered to the better rule that "'one accused of a crime may be convicted on the basis of circumstantial evidence if, taken as a whole, the evidence establishes guilt beyond a reasonable doubt.'" Id. at 546, 537 N.W.2d at 329-30, quoting State v. Evans, 215 Neb. 433, 338 N.W.2d 788 (1983). In our view, the decision in Pierce rejects the principle from Hulshizer that Kyle seeks to invoke.
However, Kyle also contends that " here was no evidence offered to show whether either party to this alleged incident was sexually gratified or aroused by what happened." Brief for appellant at 4. Citing State v. Berkman, 230 Neb. 163, 430 N.W.2d 310 (1988), the State correctly responds that in proving "sexual contact," as defined in ยง 28-318(5), the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such purpose.
Kyle also argues that " he record does not indicate that [the State's witness] caught the children performing any sex acts of any sort or that the children made any attempt to conceal what was happening." Brief for appellant at 4. The evidence is undisputed that Kyle intentionally touched S.S.' penis. The only question is whether that conduct "can be reasonably construed as being for the purpose of sexual arousal or gratification of either party."
We agree that the conduct cannot be reasonably construed as being for the purpose of sexual arousal or gratification of S.S., who was only 5 years of age. Whether Kyle's action can be reasonably construed as being for the purpose of his own sexual arousal or gratification is a more difficult question. In McGalliard v. State, 306 Ark. 181, 813 S.W.2d 768 (1991), the Supreme Court of Arkansas defined "sexual gratification" as, paraphrased, something that pleases the sexual organs or gratifies the libido. The court construed the words in accordance with their reasonable and commonly accepted meanings. Later, in Farmer v. State, 341 Ark. 220, 223, 15 S.W.3d 674, 676 (2000), the court noted its previous holdings that "it is not necessary for the State to provide direct proof that an act is done for sexual gratification if it can be assumed that the desire for sexual gratification is a plausible reason for the act." The court also observed that "it is difficult to know for certain in this day and age what is sexually gratifying to another person. Indeed, short of a confession or physical evidence, sexual gratification, like intent, is rarely capable of proof by direct evidence and must usually be inferred from the circumstances." Id. at 224, 15 S.W.3d at 677. Accord State v. Berkman, supra (intent is mental process and may be inferred from words and acts of defendant and from circumstances surrounding incident).
In several cases considering factual situations similar to the case before us, an Illinois appellate court refused to automatically make the same inference of sexual gratification where the actor was a child rather than an adult. Three cases illustrate the reasoning, which depends heavily upon the particular circumstances of each case.
The Illinois court first considered the situation in In re A.J.H., 210 Ill. App. 3d 65, 568 N.E.2d 964, 154 Ill. Dec. 743 (1991). In that case, the trial court adjudicated a 13-year-old girl, A.J.H., based upon a finding that she committed an act of aggravated criminal sexual abuse against a 5-year-old boy she babysat. At the hearing, the prosecutor asked the boy to demonstrate on a doll what A.J.H. had done to him, and in response, the boy put his thumb and middle finger in the penis area of the doll and moved them back and forth. The prosecutor a
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