NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

INBODY, Chief Judge.

INTRODUCTION

Glenn C. Nonnamaker appeals the decision of the Lancaster County District Court affirming his county court conviction for third degree sexual assault. Pursuant to this court's authority under Neb. Ct. R. App. P. § 2-111(B)(1) (rev. 2008), this case was ordered submitted without oral argument.

STATEMENT OF FACTS

On August 23, 2009, the 24-year-old victim was a resident of the Lincoln City Mission (City Mission) in Lancaster County, Nebraska, and was volunteering in the dining room area cleaning tables and putting chairs up on tables. Between 6:15 and 6:30 p.m., as the victim was putting chairs up on a table, Nonnamaker approached her from behind and grabbed her between her legs in her genital area over her clothing with his open hand. The victim verbally confronted Nonnamaker immediately following the incident, and Nonnamaker said that someone told him that he could touch her. The incident was reported to police, and Nonnamaker was arrested at the City Mission. After waiving his Miranda rights, Nonnamaker made a statement to police that he did not grab the victim, he had no part in it, and the incident never occurred. Nonnamaker was charged in the Lancaster County Court with third degree sexual assault, in violation of Neb. Rev. Stat. § 28-320 (Reissue 2008), a Class I misdemeanor.

A jury trial was held in the Lancaster County Court on December 1, 2009. The victim testified that Nonnamaker approached her from behind, grabbed her between her legs, and touched her vagina with his open hand. She described the touch as "like a touch and a slide." She testified that Nonnamaker did not hold his hand on her for any period of time, the contact occurred over her clothes, and there was no penetration. She did not require any medical attention.

The victim testified that she did not tell or indicate to Nonnamaker that he could have any type of contact with her. She stated that she recognized Nonnamaker from serving meals to residents at the City Mission, but she did not know Nonnamaker except for one earlier encounter with him approximately 1 ½ to 2 weeks prior to the incident. During that previous encounter, she was sitting at the City Mission having dinner and Nonnamaker walked by her, took food off her plate, and walked away.

A video and still photographs of the incident were admitted into evidence. Exhibit 1, a video recording from the City Mission dining hall, shows the incident. Exhibit 2 is a freeze frame of Nonnamaker touching the victim. Exhibit 3 is a freeze frame of the victim verbally confronting Nonnamaker, and exhibit 4 shows the victim and Nonnamaker engaging in a conversation or verbal confrontation. There were approximately nine people in the dining area at the time of the incident.

The victim testified that she was not sexually aroused or gratified in any way by the contact and that Nonnamaker did not display any physical signs of sexual arousal or gratification. On cross-examination, the victim admitted that she could not read Nonnamaker's mind and that it was possible that he was simply attempting to be rude, to be a bully, to degrade, to humiliate, to annoy, or to show off for other individuals. The victim testified that Nonnamaker's conduct did humiliate, annoy, bully, and harass her and that she was scared, nervous, and worried as a result of the incident.

Nonnamaker offered a proposed jury instruction defining "sexual contact" which included the statutory definition, but also included the following language: "Sexual contact shall not include such conduct which can be reasonably construed for the purpose of humiliating, bullying, degrading or annoying the victim." The county court denied the proposed instruction and instructed the jury with the statutory definition of "sexual contact" which is as follows:

The jury found Nonnamaker guilty of the charged offense, and thereafter, the county court sentenced Nonnamaker to 90 days' imprisonment with credit for time served. As part of sentencing, Nonnamaker was advised that he was required to register as a sex offender. Nonnamaker appealed to the Lancaster County District Court, which affirmed his conviction and sentence. Nonnamaker has now perfected his appeal to this court.

ASSIGNMENTS OF ERROR

Nonnamaker contends that the district court erred (1) in affirming the county court's decision to reject his proposed jury instruction defining "sexual contact" and (2) in finding that there was sufficient evidence to support his conviction for third degree sexual assault.

ANALYSIS

Proposed Jury Instruction.

Nonnamaker contends that the district court erred in affirming the county court's decision rejecting his proposed jury instruction which included language that "[s]exual contact shall not include such conduct which can be reasonably construed for the purpose of humiliating, bullying, degrading or annoying the victim." Nonnamaker contends that his proposed jury instruction is proper based upon language contained in this court's opinion in In re Interest of Kyle O., 14 Neb.App. 61, 703 N.W.2d 909 (2005).

To establish reversible error from the trial court's refusal to give a requested jury instruction, an appellant has the burden to show that (1) the tendered instruction is a correct statement of the law, (2) the tendered instruction is warranted by the evidence, and (3) the appellant was prejudiced by the court's refusal to give the tendered instruction. State v. Alford, 278 Neb. 818, 774 N.W.2d 394 (2009).

In In re Interest of Kyle O., supra, a juvenile court case in which 14-year-old Kyle O. was adjudicated by the juvenile court of third degree sexual assault, in violation of § 28-320, as a result of his having sexual contact with a 5-year-old child. The evidence established that Kyle was observed to have pulled down the pants of the younger child, grabbed the child's penis, and remarked to other children present about the small size of the penis. Upon review, this court held that Kyle's conduct could not reasonably be construed as being for the purpose of his sexual arousal or gratification. We noted that "[i]t would be very easy to construe Kyle's conduct as being for the purpose of humiliating, bullying, or annoying [the victim]." In re Interest of Kyle O., 14 Neb. App. at 72, 703 N.W.2d at 918. However, since Nebraska's criminal sexual assault statute does not criminalize sexual contact for the purpose of humiliating, degrading, bullying, or annoying a person, sexual contact for this purpose cannot support a conviction for second or third degree sexual assault. However, there could be occasions where conduct which could be construed for the purpose of humiliating, degrading, bullying, or annoying a person could also be reasonably construed as being for the purpose of sexual arousal or gratification. Thus, the proposed instruction was not an accurate statement of the law and the district court properly affirmed the county court's refusal to give the proposed jury instruction defining what does not constitute "sexual contact."

Sufficiency of Evidence.

Nonnamaker claims that the district court erred in finding that there was sufficient evidence to support his conviction for third degree sexual assault. Nonnamaker contends that although the evidence might show that the purpose of his conduct was to humiliate, degrade, bully, or annoy the victim, it was insufficient to show that his conduct was for the purpose of sexual gratification or arousal of either party.

Regardless of whether the evidence is direct, circumstantial, 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 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. State v. Collins, 281 Neb. 927, 799 N.W.2d 693 (2011); State v. Fuller, 279 Neb. 568, 779 N.W.2d 112 (2010).

A person is guilty of third degree sexual assault when that person subjects another person to sexual contact without consent of the victim and without causing serious personal injury to the victim. § 28-320. "Sexual contact" is defined by statute to include "the intentional touching of the victim'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." Neb. Rev. Stat. § 28-318(5) (Reissue 2008). Section 28-318(2) defines "[i]ntimate parts" as "the genital area, groin, inner thighs, buttocks, or breasts." Section 28-318(5) further provides: "Sexual contact shall include only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party."

The evidence clearly establishes, and Nonnamaker does not dispute, that he touched the victim's clothing over her groin area. There also is no dispute that Nonnamaker's actions were clearly made without the victim's consent and did not cause her serious personal injury. The principal issue is whether the State adduced sufficient evidence to establish, beyond a reasonable doubt, that Nonnamaker's conduct could be reasonably construed as being for the purpose of sexual arousal or gratification of either party.

In proving "sexual contact," the State need not prove actual sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such purpose. State v. Osborn, 241 Neb. 424, 490 N.W.2d 160 (1992); In re Interest of Kyle O., 14 Neb.App. 61, 703 N.W.2d 909 (2005). Although a perpetrator's state of mind is a question of fact, such fact may be proved by circumstantial evidence. In re Interest of Jeffrey K., 273 Neb. 239, 728 N.W.2d 606 (2007).

In support of his argument, Nonnamaker cites Bible v. State, 411 Md. 138, 982 A.2d 348 (2009), in which the defendant contended that the evidence was insufficient to support his jury convictions for sexual offense in the third and fourth degree. He contended that his touching of a 7-year-old girl on her buttocks on top of her clothing for approximately 2 seconds in the aisle of a store was not sexual contact. The Maryland Court of Appeals held that the evidence was insufficient to establish, beyond a reasonable doubt, that the defendant intentionally touched the victim for sexual arousal or gratification. Bible v. State, supra. The court noted that the victim was not able to remember or articulate the character of the touching, the victim was not able to identify where on the buttocks the defendant touched her, the defendant did not say anything to her, and the victim could not see what the defendant was doing behind her. Additionally, when confronted by police, although initially denying that he had been in the store, he later admitted being in the store, but made no other statements indicating sexual intent or arousal by the touching.

We do not find the decision in Bible v. State, supra, to be persuasive because the Maryland Court of Appeals' decision reversing the defendant's convictions for sexual offense in the third and fourth degree was based upon a standard of review different from the standard which we are required to apply. Within their standard of review, the Maryland Court of Appeals noted:

Bible v. State, 411 Md. at 157, 982 A.2d at 359.

This rule is similar to what is known in Nebraska as the "accused's rule," which provided that when two equal presumptions from circumstantial evidence, one in favor of innocence and the other in favor of guilt are presented, the presumption in favor of innocence is to be preferred and applied. See Hayward v. State, 97 Neb. 9, 149 N.W. 105 (1914) (abrogation recognized in State v. Pierce, 248 Neb. 536, 537 N.W.2d 323 (1995)). Of course, the accused's rule is not good law in Nebraska with its rejection having been explicitly set out by the Nebraska Supreme Court in State v. Pierce, supra. Rather, upon a defendant's conviction, we view the properly admitted evidence in the light most favorable to the State, and if in doing so there exists sufficient evidence to sustain a conviction, the conviction will be affirmed, in the absence of prejudicial error. Id.

Both Nonnamaker and the State argue the applicability of In re Interest of Kyle O., 14 Neb.App. 61, 703 N.W.2d 909 (2005), to the case at hand. Nonnamaker argues that the facts in In re Interest of Kyle O., supra, which are previously set forth in this opinion, are similar to those in the instant case, and he argues that in both cases, the facts were insufficient to support a finding that the defendants' circumstances and conduct could be construed as being for the purpose of sexual arousal or gratification. However, an important distinction exists between the In re Interest of Kyle O. case and the instant case. Although the State was required to prove the allegations of third degree sexual assault in In re Interest of Kyle O. beyond a reasonable doubt, that case involved an adjudication in the juvenile court where our standard of review was de novo on the record requiring us to reach conclusions independent of the trial court's findings; in contrast, the instant case involves a criminal case where our standard of review requires us to view the evidence in the light most favorable to the State. This is an important distinction for our purposes.

A criminal case involving the sufficiency of the evidence to support a defendant's conviction for third degree sexual assault is State v. Charron, 226 Neb. 871, 415 N.W.2d 474 (1987). The evidence in Charron established that the defendant approached the victim from behind in a parking lot while she was placing her child in his car seat. The defendant grabbed the victim's rear end forcibly, over her clothing, and pushed on her vaginal area, causing pain. Immediately following the incident, the victim turned around and saw the defendant walk across the parking lot laughing and with his head bouncing. This evidence was found to be sufficient to support the defendant's conviction for third degree sexual assault.

Viewed in the light most favorable to the State, the facts in this case establish that 49-year-old Nonnamaker approached the 24-year-old victim from behind, grabbed her between her legs, and touched her clothing over her vagina with his open hand. The touch was described by the victim as a "touch and a slide." Additionally, the victim confronted Nonnamaker immediately following the incident. The jury found the evidence adduced sufficient to find Nonnamaker guilty of third degree sexual assault. In finding a defendant guilty beyond a reasonable doubt, a jury may rely upon circumstantial evidence and the inferences that may be drawn therefrom. State v. Leibhart, 266 Neb. 133, 662 N.W.2d 618 (2003). It is not our province to substitute our judgment for that of the jury.

Although the occurrence of such conduct in a lighted area and in the presence of others could be viewed as factors negating sexual intent, based upon Nonnamaker's age, the location on the victim's body and manner in which Nonnamaker touched her, his statement that someone told him he could touch the victim, and his denial to police, we find that the evidence, when viewed in the light most favorable to the State, is sufficient to support Nonnamaker's conviction for third degree assault.

CONCLUSION

We find that the district court properly affirmed the county court's refusal to give Nonnamaker's proposed jury instruction and that the evidence was sufficient to support his conviction. As such, the decision of the district court is affirmed.

AFFIRMED.