09/04/2011
By MARGERY A. BECK
OMAHA (AP) — The Nebraska Supreme Court will decide whether a lower court violated the rights of a south-central Nebraska man by ordering him to register as a sex offender even though he's never been convicted of a sex crime.
[name withheld], 31, of Wilcox, was originally charged with third-degree child sex assault after the 11-year-old son of his ex-girlfriend accused [name withheld] in 2009 of touching his genitals.
A police affidavit from the Buffalo County case shows an officer was sent to the boy's home in July 2009 after a child therapist called the state's child abuse hotline. The therapist told authorities that the boy, his client, had accused [name withheld] of inappropriately touching him. The boy disclosed the abuse after he was caught trying to molest other children, the affidavit says.
When questioned by police, the boy told investigators that [name withheld] had "played a game" with him in which [name withheld] would take him to a bedroom, pull the boy's pants down and touch his genitals.
[name withheld] denied any sexual contact with the boy, and the charge was later reduced to third-degree assault for what prosecutors said was a threat of bodily harm [name withheld] had levied against the boy.
[name withheld] pleaded no contest to the reduced charge last year in Buffalo County District Court and was convicted. He later was sentenced to probation and ordered to register as a sex offender, prompting [name withheld]'s appeal.
Prosecutors argue that state law allows judges to order someone convicted of a non-sex-based offense to register as a sex offender if there is evidence within the record that the person has committed a sex offense.
"The statue simply requires that ... the court 'shall have found' that evidence of sexual penetration or sexual contact was present," assistant attorney general Nathan Liss said. "Here, the district court necessarily 'found' that the offense involved sexual contact."
An attorney for [name withheld] said no such evidence was established and that the order deprives [name withheld] of his constitutional right to due process and liberty.
"The court never made a specific finding that any sexual contact occurred," wrote Kearney attorney Michael Synek in a brief before the state's high court. "The court declined to consider any of Chad [name withheld]'s evidence and based its decision that he must register as a sex offender only upon the state's unsworn factual basis statements."
The state's high court is set to hear arguments in the case on Friday.
