New "Monica" defense wins an appeal: NCA reverses juvenile adjudication for unlawful sexual contact where the state failed to prove that the defendant's intent for the contact was "sexual"In re Interest of Kyle O., 14 Neb. App. 61September 27, 2005. No. A-04-1477. 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. 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 [a]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 [be] 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 "[s]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.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[d] those cases espousing the accused's rule as an appropriate standard of 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. [9] However, Kyle also contends that "[t]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 § 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. 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 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. Although some jurisdictions criminalize sexual contact for the purpose of humiliating or degrading a person, Nebraska does not.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.