By MARGERY A. BECK
OMAHA (AP) — The Nebraska Supreme Court will again weigh whether a trial court unfairly ordered a Nebraska man to register as a sex offender.
In January, the state's high court ruled that a Buffalo County District Court had violated the due process rights of 32-year-old [name withheld], of Wilcox.
[name withheld] had been accused of fondling his ex-girlfriend's young son in 2009 and was initially charged with child sexual assault, but pleaded no contest in 2010 to misdemeanor assault for threatening the boy.
Trial judges can order someone convicted of non-sex-based offenses to register as a sex offender if there's evidence the person committed a sex offense. But the state's high court said in January that the lower court relied only on prosecutors' assertion that [name withheld] had committed a sex offense.
- That is like convicting someone of murder because you suspect they did it, even if there is no evidence and even after a person was acquitted or never went to court, it's unconstitutional and an abuse of power. If they were never convicted of a sex crime, then it should not be on their record at all!
The high court upheld [name withheld]'s third-degree assault conviction and sentence of probation, but it ordered the trial court to reconsider the part of the sentence requiring him to register as a sex offender. Specifically, the lower court was instructed to consider all of the evidence presented at an earlier evidentiary hearing to determine whether [name withheld] had sexual contact with the boy.
In March, the lower court again found that [name withheld] did have sexual contact with the boy and must register as a sex offender, which would require him to report where he's living and follow other requirements. [name withheld] appealed.
[name withheld]'s attorney argued to the Nebraska Supreme Court on Monday that the lower court abused its discretion by finding that [name withheld] had sexual contact with the child.
[name withheld]'s attorney, Michael Synek, noted the lack of physical evidence of sexual abuse and pointed to an investigating police officer's report in which the officer said he suspected the boy's mother might have coached the boy. Synek also argued that the boy was not a credible witness, because he reported the sexual abuse only after [name withheld] reportedly refused to give the boy or his mother $150.
"In this case, the state had the burden to prove that sexual contact occurred between [name withheld] and (the boy)," Synek wrote in a brief submitted to the Nebraska Supreme Court. "The state relied exclusively upon the uncorroborated allegations of an 11-year-old boy to produce that firm belief or conviction. In light of [name withheld]'s consistent denials and the evidence that made (the boy's) report somewhat suspect, the evidence did not clearly and convincingly provide grounds to produce a firm belief that sexual contact had occurred."
Assistant Attorney General Nathan Liss countered that while prosecutors did not have physical evidence of sexual abuse, the abuse allegation was corroborated by the boy's consistent statements to witnesses and authorities. The fact that the boy had been exhibiting inappropriate sexual behavior — such as exposing himself and touching other children — also indicated he had been abused by [name withheld], Liss said.
- So much for proving something beyond a reasonable doubt! All they need now is an accusation and you're life is over! Just remember that when they come for you.
Liss also said that [name withheld]'s argument that prosecutors' witnesses lacked credibility is a matter only for the trial court and outside the scope of review the high court can consider.
The state Supreme Court will issue an opinion at a later date.