State v. Thompson

735 N.W.2d 818 (2007)

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Nature of the Case

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Facts

E.G., was the daughter of C.G., the woman who began dating D and subsequently lived with him upon moving to Sidney with her two children in April 2004. E.G. was 12 years old at the time she, her younger brother, and her mother began living with D. E.G. reported six occasions of sexual contact by D between July 2005 and September of that year, when the living arrangement between D, C.G., and her children ended. D rubbed her vaginal area outside of her clothing on two occasions and that during one such occasion, he attempted to briefly penetrate her digitally, but he stopped when she asked him to stop. There were three occasions D laid on top of her and rubbed against her genital area through her clothes. On two of those occasions, D kissed her breasts. D also kissed E.G. on the mouth a number of times. There was no attempt at penile penetration. E.G. described D as gentle and said that he did not threaten her in any way. She also described these encounters as being very brief in duration and stated that such ended when he voluntarily stopped and left. No ejaculation was reported by E.G. In questioning by police, D was highly emotional, was crying, and ultimately admitted the core of the allegations to the officer. D was charged with sexual assault of a child and first-degree sexual assault. D was arraigned and entered a plea of not guilty. A plea agreement was reached. D was to enter a no contest plea and the third count was going to be dismissed and at the time of sentencing, the county attorney is going to remain silent. D pled no contest to the two counts of sexual assault of a child, a factual basis was provided on the record, and the trial court accepted the plea and scheduled the sentencing hearing. The therapist who evaluated E.G. stated that D should be sentenced to 10 years in prison. The therapist believes that this is not the first time that D had molested a child, but no such evidence was produced. D held steady employment, and there were no violent offenses in his past. The psychologist who performed a mental status examination said D's profile does not indicate that he is presently suffering from a psychotic disorder or thinking impairment. It stated: “D's tendency is to act without thinking in a rather immature reaction style. He does not appear to meet the criteria for pedophilia. D suffers from impulse control and lack of judgment and does not appear to include any violence or 'grooming.' There are no known previous sexual offenses with adults or children. Testing shows D to be rather immature and self-centered, but he does not show indications of psychopathy or psychosis.” The report recommended no unsupervised contact with vulnerable potential victims, requirement of lack of use of drugs and alcohol to prevent further diminishment of judgment, and long term probation/parole oversight to ensure compliance. The district probation officer recommended a strict probation. Additional conditions would include D's being prohibited from becoming involved in a relationship with someone who has young children or with someone who is around and/or caring for young children. A condition of probation that prohibits D from purchasing or being in possession of pornographic material would also be recommended. The judge agreed with the recommendations and stated a belief that D need not be sent to prison, in part because his size and personality would make him a target. P in part appealed the sentence as excessively lenient.