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In re Kyle O.9/27/2005
contact, and there was no admonishment to the victims to not disclose the incident. The In re Jerry M. court stated:
The record shows Jerry was a brazen 11-year-old whose conduct was more consistent with an intent to annoy and obtain attention than with sexual arousal. Under these circumstances Jerry was perhaps guilty of battery . . . but the record does not support a true finding beyond a reasonable doubt of conduct intended sexually to exploit a child--the "gist" of [the statute pertaining to felony lewd touching of a victim under 14 years of age].
59 Cal. App. 4th at 300, 69 Cal. Rptr. 2d at 154.
We agree with the Illinois appellate court that no bright-line rule applies regarding the age of the child actor. In the instant case, Kyle pulled down S.S.' pants, grabbed S.S.' penis, and made a remark to the other children about the small size of the penis. There may have been another charge that would not have required that the conduct be for the purpose of sexual arousal or gratification; however, as charged in this case, the State had the burden to prove beyond a reasonable doubt that Kyle's actions could be reasonably construed as being for such purpose.
The State's only witness testified that he did not know whether it appeared that Kyle was seeking sexual gratification. There is no evidence that Kyle was sexually aroused, and we are left looking to the circumstantial evidence in an attempt to glean Kyle's intent. Significantly, the act occurred outside during the daytime, in the presence of others, and lasted approximately 2 seconds. While Kyle's subsequent nonverbal response manifested an attempt to convey the impression that he had been doing nothing wrong, given that Kyle's actions were wrong on a more basic level, as an offensive touching contrary to the common law, Kyle's response does not provide sufficient proof that Kyle's conduct was for the purpose of his sexual gratification.
It would be very easy to construe Kyle's conduct as being for the purpose of humiliating, bullying, or annoying S.S. Although some jurisdictions criminalize sexual contact for the purpose of humiliating or degrading a person, Nebraska does not. See, Conn. Gen. Stat. Ann. § 53a-65(3) (West 2001); D.C. Code Ann. § 22-3001(9) (2001); Mich. Comp. Laws Ann. § 750.520a(n)(ii) (West 2004); Mont. Code Ann. § 45-2-101(67)(a) (2005); N.J. Stat. Ann. § 2C:14-1(d) (West 1995); Wis. Stat. Ann. § 940.225(5)(b)(1) (West 2005). See, also, Colo. Rev. Stat. Ann. § 18-3-401(4) (West 2004) ("for the purposes of sexual arousal, gratification, or abuse"); Me. Rev. Stat. Ann. tit. 17-A, § 251(1)(D) (West Cum. Supp. 2004) ("or for the purpose of causing bodily injury or offensive physical contact"); Md. Code Ann., Criminal Law § 3-301(f) (2002) ("or for the abuse of either party"); R.I. Gen. Laws § 11-37-1(7) (2002) ("for the purpose of sexual arousal, gratification, or assault"); Wyo. Stat. Ann. § 6-2-301(a)(vi) (Michie 2005) ("touching, with the intention of sexual arousal, gratification or abuse"). It is a function of the Legislature and not of this court to include within the definition of "sexual contact" conduct which can reasonably be construed as being for the purpose of humiliation or abuse. Because the Nebraska definition does not include such conduct and because, upon our de novo review, we cannot find that Kyle's conduct can reasonably be construed for the purpose of sexual arousal or gratification, we find that the State failed to satisfy its burden of proving the elements of the offense beyond a reasonable doubt.
CONCLUSION
Although we find that the trial court did not abuse its discretion in excluding an exhibit which was only partially admissibl
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