Thursday, February 15, 2007
Defendant in a Mrs Robinson situation found guilty of statutory rape. Nebraska court of appeals affirms conviction because circumstantial evidence of defendant's age was sufficient to convict. State v. McCulloch, A-06-275, 15 Neb. App. 381 Defendant who was convicted of sexual assault on a child under 15 while he was older than 19 filed for post conviction relief after his trial counsel did not appeal. The district court allowed a direct appeal. On appeal the defendant alleged ineffective counsel because there was insufficient evidence of his age. Nebraska court of appeals affirms, inpart because the state showed that the defendant had a sexual relationship with the victim's mother at least four years before. when the State is required to prove the age of a defendant, as in a prosecution under § 28-319(1)(c), the jury may consider the defendant’s physical appearance in determining whether the State has proven the defendant’s age. The defendant’s physical appearance must be combined with some other circumstantial evidence, and the combination of the physical appearance and other circumstantial evidence must be such that the jury can reasonably infer, beyond a reasonable doubt, that the defendant’s age is above the age required by statute.