State v. Fuller

I n re I nterest of M arcella B. and Juan s.,
chIldren under 18 years of age .
state of neBraska , appellee , and candIce J.
novak , guardIan ad lIteM, appellant,
v. latIsha J., appellee .
778 N.W.2d 744
Filed March 12, 2010. 	No. S-09-382.
Petition for further review from the Court of Appeals,
sIevers and cassel, Judges, and hannon, Judge, Retired, on
appeal thereto from the Separate Juvenile Court of Douglas
County, vernon danIels, Judge. Judgment of Court of Appeals
affirmed.
Candice J. Novak, of Thomas G. Incontro, P.C., L.L.O.,
guardian ad litem.
Thomas C. Riley, Douglas County Public Defender, and
Martha J. Wharton for appellee Latisha J.
heavIcan, 	c.J., 	WrIght, 	connolly, 	gerrard, 	stephan,
MccorMack, and MIller-lerMan, JJ.
per curIaM.
Having reviewed the briefs and record and having heard oral
arguments, we conclude on further review that the decision of
the Nebraska Court of Appeals in In re Interest of Marcella
B. & Juan S., 18 Neb. App. 153, 775 N.W.2d 470 (2009), is
correct and, accordingly, affirm the decision of the Court of
Appeals dismissing the appeal.
affIrMed.
state of neBraska , appellee , v.
lance fuller , appellant.
779 N.W.2d 112
Filed March 12, 2010. 	No. S-09-494.
1. Convictions: Evidence: Appeal and Error. Regardless of whether the evidence
is direct, circumstantial, or a combination thereof, and regardless of whether
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www.nebraska.gov/apps-courts-epub/
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the issue is labeled as a failure to direct a verdict, insufficiency of the evidence,
or failure to prove a prima facie case, the standard is the same: In reviewing a
criminal conviction, an appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, or reweigh the evidence; such matters are for
the finder of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favorably to the
State, is sufficient to support the conviction.
2. Statutes: Appeal and Error. The interpretation of a statute is a question of law
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the decision made by the court below.
3. Criminal Law: Statutes. Although penal statutes are strictly construed, they are
given a sensible construction in the context of the object sought to be accom-
plished, the evils and mischiefs sought to be remedied, and the purpose sought to
be served.
Appeal from the District Court for Adams County, stephen
r. I llIngWorth, Judge, on appeal thereto from the County
Court for Adams County, roBert a. I de, Judge. Judgment of
District Court affirmed.
Arthur C. Toogood, Adams County Public Defender, for
appellant.
Jon bruning, Attorney General, and Nathan A. Liss for
appellee.
heavIcan, 	c.J., 	WrIght, 	connolly, 	gerrard, 	stephan,
MccorMack, and MIller-lerMan, JJ.
MIller-lerMan, J.
NATURe OF CASe
Lance Fuller appeals from the order of the district court for
Adams County which affirmed his county court conviction for
third degree sexual assault. Fuller asserts that there was not
sufficient evidence to support his conviction, because the acts
for which he was charged and convicted do not meet the defini-
tion of “sexual contact” provided in Neb. Rev. Stat. § 28-318(5)
(Reissue 2008). We affirm.
STATeMeNT OF FACTS
Fuller was charged in the county court for Adams County on
June 25, 2007. The complaint charged Fuller with third degree
sexual assault in violation of Neb. Rev. Stat. § 28-320(1)
STATe v. FULLeR 	569
Cite as 279 Neb. 568

(Reissue 2008), which provides in relevant part: “Any person
who subjects another person to sexual contact . . . without
consent of the victim . . . is guilty of sexual assault in either
the second degree or third degree.” Section 28-320(3) provides:
“Sexual assault shall be in the third degree and is a Class I
misdemeanor if the actor shall not have caused serious personal
injury to the victim.” At issue in this appeal is the meaning of
“sexual contact” contained in a portion of § 28-318(5) which
applies to § 28-320 and provides that “[s]exual contact shall
also mean the touching by the victim of the actor’s sexual
or intimate parts or the clothing covering the immediate area
of the actor’s sexual or intimate parts when such touching is
intentionally caused by the actor.”
The complaint alleged that on May 5, 2007, Fuller subjected
C.F. to sexual contact without consent; the complaint did not
allege that C.F. suffered serious personal injury. On May 5,
2007, Fuller was 18 years old, and C.F., who is Fuller’s half
brother, was 9 years old.
A jury trial was conducted in county court. At trial, the
stepfather of Fuller and C.F. testified that on the afternoon of
May 5, 2007, he was watching television in the basement of
the family home when he decided to go upstairs and check on
Fuller and C.F. He found them in Fuller’s bedroom, where he
saw the two on the bed facing each other with a blanket over
them. The stepfather asked what was going on and pulled the
blanket off. He saw Fuller trying to pull up C.F.’s pants and
saw that Fuller’s pants were partially down. The stepfather told
C.F. to go downstairs. The stepfather called his wife, who is
the mother of Fuller and C.F., and when she arrived home, they
called the police.
The police officer who investigated the incident testified
at trial that Fuller told him that “something just kind of came
over him and he threw a blanket over [C.F.] and himself” and
that “he pulled [C.F.’s] pants down and rubbed his dick on
[C.F.’s] leg.” C.F. testified at trial that he and Fuller were sit-
ting on Fuller’s bed when Fuller “flipped the blankets over me
and started — pulled down my pants to my ankles and started
rubbing his penis on my shin.” C.F. testified that Fuller did not
570 	279 NebRASkA RePORTS

touch him anywhere other than “the outside of the right shin”
and that Fuller did not have C.F. touch Fuller anywhere.
After the State presented its evidence, Fuller moved for
dismissal on the basis that the State’s evidence failed to estab-
lish a necessary element of third degree sexual assault. Fuller
argued that the evidence did not establish “sexual contact” as
that term is defined in § 28-318(5). The court overruled the
motion. After Fuller rested his defense, he moved for a directed
verdict on the same basis, and the court overruled the motion.
The jury found Fuller guilty of third degree sexual assault.
Fuller’s motion for a new trial was denied, and the county court
sentenced him to 90 days in jail.
Fuller appealed his conviction to the district court for Adams
County. On appeal, Fuller argued, inter alia, that there was
not sufficient evidence to support his conviction, because the
evidence failed to establish “sexual contact” as the term is
defined in § 28-318(5) and applies to § 28-320. The district
court rejected Fuller’s arguments and affirmed his conviction
and sentence.
Fuller appeals the district court’s rulings which affirmed his
conviction and sentence.
ASSIGNMeNT OF eRROR
Fuller asserts that the district court erred by affirming the
denial of his motions based on sufficiency of the evidence and
by affirming his conviction, because under the definition of
“sexual contact” in § 28-318(5), there was not sufficient evi-
dence to support his conviction under § 28-320.
STANDARDS OF ReVIeW
[1] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on the
credibility of witnesses, or reweigh the evidence; such matters
are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
STATe v. FULLeR 	571
Cite as 279 Neb. 568

trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction. State v. Banks, 278 Neb. 342,
771 N.W.2d 75 (2009).
[2] The interpretation of a statute is a question of law for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. State v. Winslow, 274 Neb. 427, 740 N.W.2d
794 (2007).
ANALYSIS
Fuller asserts that the district court erred by affirming the
denial of his motions based on sufficiency of the evidence and
by affirming his conviction, because there was not sufficient
evidence to support his conviction under § 28-320. He argues
that the evidence does not support a finding that he subjected
C.F. to “sexual contact” as the term is defined in § 28-318(5)
and is applicable to § 28-320. Fuller specifically argues that
rubbing his penis on C.F.’s shin was not “sexual contact” for
purposes of § 28-320, because under § 28-318(5), the shin is
not a “sexual or intimate part” and he did not cause C.F. to
“touch” Fuller’s sexual or intimate parts. We disagree with
Fuller’s reading of the statutes and conclude that the evidence
supported Fuller’s conviction and that the district court did
not err.
Fuller was convicted of third degree sexual assault, which,
under § 28-320(1), occurs when a person “subjects another
person to sexual contact . . . without consent of the victim.”
The evidence in this case showed that Fuller rubbed his
penis on C.F.’s shin. Fuller does not argue that the evidence
failed to show that such rubbing was without C.F.’s consent.
Instead, as noted, he argues that rubbing his penis on C.F.’s
shin was not “sexual contact” as that term is defined by the
relevant statute.
For purposes of § 28-320 and other statutes, “sexual con-
tact” is defined in § 28-318(5) as follows:
Sexual contact means the intentional touching of the vic-
tim’s sexual or intimate parts or the intentional touching
of the victim’s clothing covering the immediate area of
the victim’s sexual or intimate parts. Sexual contact shall
572 	279 NebRASkA RePORTS

also mean the touching by the victim of the actor’s sexual
or intimate parts or the clothing covering the immediate
area of the actor’s sexual or intimate parts when such
touching is intentionally caused by the actor. Sexual con-
tact shall include only such conduct which can be reason-
ably construed as being for the purpose of sexual arousal
or gratification of either party. Sexual contact shall also
include the touching of a child with the actor’s sexual or
intimate parts on any part of the child’s body for purposes
of sexual assault of a child under sections 28-319.01
and 28-320.01.
We note that § 28-318(5) contains four sentences describing
conduct that is considered “sexual contact.” The first sentence
of the subsection refers to the actor’s “intentional touching of
the victim’s sexual or intimate parts or . . . the victim’s cloth-
ing covering the immediate area of the victim’s sexual or inti-
mate parts.” Fuller’s conduct in this case is not described by
the first sentence, because the term “intimate parts” is defined
in § 28-318(2) to mean “the genital area, groin, inner thighs,
buttocks, or breasts.” The evidence in this case shows without
contradiction that Fuller touched C.F.’s shin. The shin is not a
sexual or intimate part under the statutory definition, and the
evidence does not show that Fuller touched any part of C.F.’s
body that would be considered a sexual or intimate part.
Similarly, the final sentence of § 28-318(5) does not
apply to the evidence in this case. Although Fuller’s rub-
bing his penis on C.F.’s shin would constitute “touching of
a child with the actor’s sexual or intimate parts on any part
of the child’s body,” the final sentence of § 28-318(5) speci-
fies that this definition applies to “sexual assault of a child
under sections 28-319.01 and 28-320.01.” In this case, Fuller
was charged under § 28-320. He was not and, as Fuller
notes, could not have been charged under Neb. Rev. Stat.
§ 28-319.01 (Reissue 2008) or Neb. Rev. Stat. § 28-320.01
(Reissue 2008), because both of those statutes apply only
when “the actor is at least nineteen years of age or older”
and Fuller was 18 years old at the time of the incident herein.
Given this specification and because we conclude that the
second sentence of § 28-318(5) controls the outcome of this
STATe v. FULLeR 	573
Cite as 279 Neb. 568

case, we do not apply or consider the breadth of the last sen-
tence in § 28-318(5) in this appeal.
The question at the center of this case is whether Fuller’s
conduct 	is 	encompassed 	under 	the 	second 	sentence 	of
§ 28-318(5), which provides that “[s]exual contact shall also
mean the touching by the victim of the actor’s sexual or inti-
mate parts or the clothing covering the immediate area of the
actor’s sexual or intimate parts when such touching is inten-
tionally caused by the actor.” We note that in its order rejecting
Fuller’s argument on appeal from the county court, the district
court stated:
The second sentence of 28-318(5) clearly defines sexual
contact to include the touching by the victim of the actor’s
sexual or intimate parts when such touching is intention-
ally caused by the actor. The victim’s leg in this case
touched an extension of [Fuller’s] genital or groin area.
This touching was initiated by [Fuller]. [Fuller] therefore
committed a sexual assault under [§ 28-320].
We agree with the district court’s determination that Fuller’s
conduct was “sexual contact” under the definition provided
in the second sentence of § 28-318(5). In his brief on appeal
to this court, Fuller contends that his conviction was contrary
to the second definition of “sexual contact” in § 28-318(5),
because C.F.’s shin “is not an intimate part” and Fuller “did
not cause [the] victim to touch any of [Fuller’s] intimate parts.”
brief for appellant at 6. Fuller’s argument suggests that the
word “by” in the phrase “touching by the victim” indicates
that the victim must initiate the touching. Fuller misreads
the statute.
[3] Although penal statutes are strictly construed, they are
given a sensible construction in the context of the object
sought to be accomplished, the evils and mischiefs sought to
be remedied, and the purpose sought to be served. State v.
Bossow, 274 Neb. 836, 744 N.W.2d 43 (2008). Giving the stat-
ute under consideration a sensible construction, we conclude
that Fuller’s conduct was “sexual contact” under the second
sentence of § 28-318(5) and amounted to a sexual assault in
the third degree.
574 	279 NebRASkA RePORTS

Contrary 	to 	Fuller’s 	reading, 	the 	second 	sentence 	of
§ 28-318(5) does not specify a part or parts of the victim’s
body that must touch the actor’s sexual or intimate parts. We
thus reject Fuller’s argument that because C.F.’s shin was
involved, no crime was committed.
The second sentence of § 28-318(5) provides that there must
be a “touching by the victim of the actor’s sexual or intimate
parts” and that “such touching [be] intentionally caused by the
actor.” We construe a “touching” in this context to be physical
contact between two body parts, although for completeness,
we note that the statute states that the defendant-actor may
be clothed. As long as it is shown that two body parts made
physical contact, and one of such parts was the sexual or
intimate part of the defendant-actor, it is not necessary under
§ 28-318(5) to engage in an unsolvable analysis of whether at
any moment the actor was “touching” the victim or whether
the victim was “touching” the actor for sexual contact to have
occurred. The last phrase of the second sentence of § 28-318(5)
provides that “such touching is intentionally caused by the
actor,” which we understand to mean that the defendant-actor
initiated the incident of “sexual contact” under this provision.
Thus, when there has been physical contact between a victim
and the actor’s sexual or intimate part, there has been a “touch-
ing by the victim,” and we reject Fuller’s argument to the effect
that the statute requires that the touching be initiated by an act
of the victim.
The evidence in this case showed that there was physical
contact between Fuller’s penis and C.F.’s shin. It is clear that
Fuller’s penis was a sexual or intimate part under the defini-
tion provided in the statutes, and the evidence of physical con-
tact supports the findings that a touching of Fuller’s penis by
C.F.’s shin occurred and that such touching was intentionally
caused by Fuller. Such evidence was sufficient to support a
finding of “sexual contact” as defined in the second sentence
of § 28-318(5). We therefore conclude that the evidence in
this case was sufficient to support Fuller’s conviction for third
degree sexual assault under § 28-320.
STATe v. FULLeR 	575
Cite as 279 Neb. 568

CONCLUSION
We conclude that the evidence supported Fuller’s conviction,
including the finding that “sexual contact,” as defined under the
relevant statutes, occurred. The district court did not err when
it affirmed the county court’s rulings denying Fuller’s motions
based on insufficient evidence and affirmed his conviction. We
therefore affirm Fuller’s conviction and sentence as affirmed by
the district court.
affIrMed.
576 	279 NebRASkA RePORTS