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01/14/2025 09:09 AM CST
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. MIELAK
Cite as 33 Neb. App. 309
State of Nebraska, appellee, v.
Evan J. Mielak, appellant.
___ N.W.3d ___
Filed January 7, 2025. No. A-24-064.
1. Convictions: Evidence: Appeal and Error. 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.
2. Jury Instructions: Judgments: Appeal and Error. Whether jury
instructions given by a trial court are correct is a question of law. On
a question of law, an appellate court is obligated to reach a conclusion
independent of the determination reached by the court below.
3. Sexual Assault: Words and Phrases. Under Neb. Rev. Stat.
§ 28-318(8)(a) and (b) (Cum. Supp. 2022), the inquiry is not just
whether the defendant thought the victim expressed a lack of consent,
but whether a reasonable person would have known the victim’s words
and conduct were a “genuine and real” refusal of consent.
4. Sexual Assault: Proof. Subsections (b) and (c) of Neb. Rev. Stat.
§ 28-318(8) (Cum. Supp. 2022) do not set forth additional independent
alternative means to show that sexual penetration was without consent.
Instead, these subsections inform the nature of the proof necessary to
show one of the definitions set forth in subsection (a) of § 28-318(8).
5. Convictions: Evidence: Appeal and Error. When a defendant is
charged in alternative ways with committing an offense, the jury can
convict if it finds there is sufficient evidence of either alternative, and
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. MIELAK
Cite as 33 Neb. App. 309
thus the judgment of conviction must be affirmed if the evidence is sufficient to support either of the State’s alternative theories of guilt.
6. Criminal Law: Evidence: Jurors. The “without consent” theory and
the “incapable of resisting” theory are two distinct ways of committing
same offense, and thus, where there is evidence of both theories, a juror
may determine guilt based on either.
7. Sexual Assault. Nebraska case law does not set forth some mythical
level of intoxication after which a person is considered to be incapable
of resisting for purposes of Neb. Rev. Stat. § 28-319(1)(b) (Reissue
2016). A victim can be incapable of resisting or appraising the nature of
a perpetrator’s conduct without suffering from an abnormality or substantial mental or physical impairment like severe intoxication.
8. ____. Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016) requires an individualized inquiry into the victim’s capacity.
9. Statutes. Statutory interpretation begins with the text, and the text is to
be given its plain and ordinary meaning.
10. ____. It is not within the province of a court to read a meaning into
a statute that is not warranted by the language; neither is it within the
province of a court to read anything plain, direct, or unambiguous out of
a statute.
11. Jury Instructions: Proof: Appeal and Error. In an appeal based on
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
12. Jury Instructions: Appeal and Error. All the jury instructions must be
read together, and if, taken as a whole, they correctly state the law, are
not misleading, and adequately cover the issues supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.
13. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested 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.
14. Jury Instructions: Appeal and Error. It is not error for a trial court to
refuse to give a party’s requested instruction where the substance of the
requested instruction was covered in the instructions given.
15. Jury Instructions: Proof: Records: Appeal and Error. Appellants are
required to show that their tendered jury instruction was a correct statement of law and that it was warranted by the evidence; to do so, appellants need to include their proposed instruction in the record on appeal.
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. MIELAK
Cite as 33 Neb. App. 309
16. Jury Instructions. In giving instructions to the jury, it is proper for the
court to describe the offense in the language of the statute.
17. Jury Instructions: Statutes: Legislature: Intent. Although the law
does not require that a jury instruction track the exact language of the
statute, using the specific language of a statute is an effective means of
implementing the intent of the Legislature.
18. Jurors. Jurors are accepted because they are men and women of common sense and have a common understanding of words ordinarily used
in our language.
19. Jury Instructions: Words and Phrases. In instructing a jury, the trial
court is not required to define language commonly used and generally
understood.
Appeal from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Affirmed.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Pirtle, Bishop, and Arterburn, Judges.
Arterburn, Judge.
I. INTRODUCTION
Evan J. Mielak appeals his conviction in the district court
for Lancaster County for first degree sexual assault. He argues
that there was insufficient evidence to support his conviction.
He also assigns that the district court erred in overruling his
objection to jury instruction No. 3 and failing to give the jury
his proposed instructions. We affirm.
II. BACKGROUND
1. Factual Background
In April 2023, the victim, H.S., was living in an apartment
with her sister, Hannah S., and four male roommates: Caden F.,
Trey H., Daniel P., and Mielak. On April 7, 2023, all the roommates, excluding Daniel, were socializing in their apartment.
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STATE V. MIELAK
Cite as 33 Neb. App. 309
The group decided to play a drinking game that involved taking or finishing a drink at certain intervals, resulting in the
players consuming large amounts of alcohol in a short period
of time. H.S. testified that the game was “a little bit too fast for
everyone.” As a result, Caden became sick and vomited into
the kitchen sink.
About an hour into the game, H.S. also began to feel unwell.
She testified that she had consumed approximately five alcoholic seltzer drinks and was drunk. H.S. went into her bathroom and vomited. H.S. was concerned that she would vomit
again and did not feel well enough to leave the bathroom. H.S.
fell asleep in the bathroom next to the toilet, lying face down
on her stomach.
Caden testified that H.S. was “pretty drunk” from the drinking game, “[had] to be awfully drunk to sleep on the floor,”
and estimated H.S.’ level of intoxication as around a “seven . . .
out of ten.” He and the other roommates encouraged Hannah to
check on H.S. and make sure that she was not “in need of any
immediate help.” Hannah obliged and went into the bathroom
with some water for H.S. Hannah testified that H.S. mumbled
something but did not move or reach for the water. Hannah set
the water down next to H.S. When Hannah left the bathroom,
H.S.’ head was near the toilet, and she was lying face down
with her feet extending toward the door.
As Hannah exited the bathroom and closed the door, she
found Mielak standing just outside the door. Hannah told
Mielak not to enter the bathroom. Hannah testified that Mielak
expressed a desire to help H.S., but Hannah responded that she
could take care of H.S. alone. Hannah also reminded Mielak
that no male roommates were allowed in that bathroom.
Before moving in, the roommates made an agreement that
the bathroom closest to H.S. and Hannah’s bedroom was for
female use only. All the male roommates understood that they
were to stay out of that bathroom. After reminding Mielak of
this rule, Hannah went into Trey’s bedroom on the opposite
side of the apartment to take a phone call. Hannah testified
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33 Nebraska Appellate Reports
STATE V. MIELAK
Cite as 33 Neb. App. 309
that she went to Trey’s room because “the guys were . . . in the
living room partying” and Trey’s bedroom was quiet.
H.S. testified that after falling asleep on the bathroom floor,
the next thing she remembered was waking up and realizing
another person was in the bathroom with her. The individual
did not speak to H.S., and she was still lying face down on the
floor, so she initially guessed it was Hannah. The individual,
later identified as Mielak, crouched down next to H.S., pulled
down her pants and her underwear, and inserted his fingers
into her vagina. H.S. testified that in reaction to this contact,
she “froze up” and could not move. She could not estimate
how long the penetration lasted but testified that “[i]t felt
like a really long time.” H.S. deduced that the individual was
Mielak because while he was touching her, she could hear
Caden’s and Trey’s voices from the living room.
H.S. testified that she stayed immobile on the floor because
she was “really scared” of Mielak and was afraid that he would
do something worse if she reacted. At some point, Mielak
stopped touching H.S. and began to masturbate. H.S. testified
that she remained immobile on the floor. Eventually, Mielak
stopped touching himself. H.S. testified that Mielak “must
have” pulled up her underwear and her pants and exited the
bathroom, closing the door behind him. Mielak did not say
anything to H.S. before leaving the bathroom. After he left,
H.S. stayed in the bathroom and cried.
Not long after, H.S. left the bathroom and went searching for Hannah in the bedroom they shared. Hannah was not
there. H.S. heard Mielak calling out to her from the hallway
and hid from him in the closet. Mielak entered her bedroom,
and H.S. immediately left, telling Mielak she was looking
for Hannah.
H.S. found Hannah taking a phone call in Trey’s bedroom.
H.S. closed Trey’s bedroom door and told Hannah that Mielak
had “fingered” her and that she had heard him “jerking off.”
While this discussion was taking place, Trey wanted to know
why H.S. and Hannah were in his room. When he asked,
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. MIELAK
Cite as 33 Neb. App. 309
Hannah told him everything was fine. However, Trey testified that when he checked on H.S. and Hannah, he could hear
through the door that H.S. was crying.
Hannah eventually left Trey’s bedroom and confronted
Mielak. H.S. followed Hannah and screamed expletives at
Mielak. H.S. testified that she did so “[b]ecause [Mielak] raped
me, and I was mad.” Trey testified that during this encounter,
H.S. was “very hysterical,” which was out of character for her.
Caden and Trey were confused by the dispute between H.S.,
Mielak, and Hannah. In explanation, Mielak told Caden and
Trey that he had “screwed up” and that “things [wouldn’t] be
the same again.” Trey asked Mielak to clarify what he meant,
and Mielak began to cry and admitted that he had “inappropriately touched” H.S.
To help H.S. calm down, H.S. and Hannah briefly left the
apartment. When they returned later that night, none of the
other roommates were awake, and they went to bed. Three days
later, Daniel, the fourth male roommate who was not present
during these events, received a message from Mielak stating
that they needed to talk. Daniel testified that he called Mielak,
and Mielak told him that he had “inappropriately touched
[H.S.]” Mielak also told Daniel that at H.S.’ request, he had
moved out of the apartment. Excluding H.S., none of the roommates have spoken to Mielak since he removed himself from
the apartment.
H.S. testified that she did not immediately contact law
enforcement because she and Mielak “were really good
friends” and she had a hard time separating herself from those
feelings. However, a week after the event took place, H.S.
filed a report against Mielak at the Lincoln Police Department.
H.S. spoke to an investigator, Tyler Nitz, who suggested that
she make a “controlled phone call” to Mielak. Nitz explained
that a controlled call is when a victim contacts the alleged
perpetrator and confronts him or her about the alleged abuse.
Nitz provided H.S. with the necessary recording equipment to
make a controlled call.
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. MIELAK
Cite as 33 Neb. App. 309
H.S. made a controlled call to Mielak on April 17, 2023.
At trial, a recording of the call was offered by the State and
received into evidence. During the call, Mielak was crying,
making some of his responses unintelligible. Mielak began
the conversation by stating, “the first thing I want to say is
I’m sorry. I know there is nothing I can say.” H.S. responded
that while he described the sexual contact as merely “inappropriate touching” to their male roommates, he had in fact
“fingered [her] and touched [himself].” Mielak then began
crying, stating that he did not remember what happened
beyond entering the bathroom. However, Mielak stated that
he believed H.S.’ account of the sexual contact. Mielak apologized to H.S. several times, stated that he did “something horrible,” and called himself a “horrible person.” He said that he
felt “like a monster” for what he did to H.S.
H.S. testified that she has not spoken to or contacted Mielak
since the controlled call. H.S. denied ever dating Mielak,
expressing a romantic interest in him, or kissing him. She also
testified that Mielak had never expressed a romantic desire
toward her prior to the incident. H.S. testified that if Mielak
had asked for her consent to touch her on April 7, 2023, she
would not have given him consent.
2. Procedural Background
On June 7, 2023, the State charged Mielak with first degree
sexual assault, a Class II felony. A jury trial began on November
15 and ended on November 17. After the State presented its
evidence and rested, Mielak made an oral motion to dismiss
the charge against him. Mielak’s counsel argued that there was
no evidence that (1) H.S. expressed a lack of consent to sexual
penetration or (2) H.S. was incapable of expressing a lack of
consent. Thus, Mielak concluded that the evidence was insufficient to find him guilty of first degree sexual assault.
The State countered that H.S. manifested a lack of consent
by entering her private bathroom, lying face down on the floor,
and going to sleep. The State also argued that H.S. was unable
to consent because she was asleep and intoxicated. After the
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Nebraska Court of Appeals Advance Sheets
33 Nebraska Appellate Reports
STATE V. MIELAK
Cite as 33 Neb. App. 309
matter was submitted, the court overruled the motion. Mielak
rested without presenting any evidence to the jury.
Outside the presence of the jury, the court and the parties conducted a formal jury instruction conference. Mielak
objected to jury instruction No. 3, which provides the elements
of first degree sexual assault. The instruction stated that the
State had to prove beyond a reasonable doubt that Mielak
subjected H.S. to sexual penetration either “(a) without [her]
consent” or “(b) when . . . Mielak knew or should have known
that [H.S.] was mentally or physically incapable of resisting
or appraising the nature of his conduct.” Mielak’s counsel
argued that the “should have known” language was “below
the constitutional requirement of some element of mens rea.”
His counsel elaborated that first degree sexual assault requires
some element of criminal negligence “beyond mere breach of
a duty or breach of a standard of care” and without defining
the phrase “should have known,” the jury could find Mielak
guilty under a “simple negligence standard.”
Mielak’s counsel referenced an earlier version of the proposed jury instructions and one instruction in particular that
included a definition of the word “negligently” taken from
another statute. That statute is unidentifiable from the record
on appeal, and the proposed instruction is not included in our
record. Mielak suggested that the court could use language
from the proposed instruction to cure the alleged defect in
jury instruction No. 3.
The court overruled Mielak’s objection, stating that the
level of intent was part of the crime and that jury instruction
No. 3 used the language provided in the first degree sexual
assault statute. The court also noted that the definition of
“negligently” that Mielak’s counsel wanted to provide to the
jury was taken from an unrelated statute that did not have “any
pertinence” to this case. The court concluded that jury instruction No. 3 was appropriate as given.
The matter was then submitted to the jury. During deliberations, the court received two questions from the jury. The first
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33 Nebraska Appellate Reports
STATE V. MIELAK
Cite as 33 Neb. App. 309
question asked: “Instruction Number V - Can we be provided
with a definition of conduct as stated in section (a) within
‘without consent’ definition? For example - Is lack of action
(inaction, laying on floor) considered ‘conduct.’” Instruction
No. 5 provided the jury with a list of defined statutory terms,
including the phrase “without consent.” The second question
asked: “Is action prior to the incident considered ‘conduct.’
For example - door being shut, her laying on floor, closing
her eyes.”
Mielak provided the court with proposed instructions to
each question. For the first question, Mielak proposed the
following: “Conduct as defined in these instructions [is] an
affirmative act that conveys to the other person a lack of consent by word or conduct. Inaction when the person is capable
of saying something or doing something to express a real and
genuine lack of consent, is not conduct.” His proposed instruction to the second question was: “The conduct expressing a
lack of consent must be directed to the sexual conduct that is
the subject of the charge.”
Mielak’s counsel argued that the questions went to the “the
heart of [Mielak’s] motion to dismiss,” which was that the evidence was insufficient to establish that H.S. actively expressed
a lack of consent or lacked the ability to do so. Mielak asserted
that his proposed instructions would indicate that H.S. had a
duty, if capable, to commit some act expressing her lack of
consent. The State objected to Mielak’s proposed instructions,
arguing that conduct was distinct from action and that Mielak’s
responses were not correct statements of law.
Once the matter was submitted, the court stated that “action”
was not synonymous with “conduct” and that the jury could
understand the meaning of the word “conduct” without further
instruction. The court also stated that the instructions it had
already provided were adequate. Thus, the court ruled that its
instruction to both questions would be as follows: “Members
of the jury, you have received all the evidence and instructions
of law which are applicable to this case.”
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33 Nebraska Appellate Reports
STATE V. MIELAK
Cite as 33 Neb. App. 309
The jury ultimately returned a verdict of guilty for first
degree sexual assault. Mielak motioned for a new trial or, in
the alternative, requested that the court vacate the judgment
of the conviction due to irregularities in the court proceedings, misconduct, error of law, and the evidence being insufficient to support the verdict. The court’s order addressing this
motion indicates that Mielak also filed a motion for judgment
notwithstanding the verdict, but that motion does not appear
in our record. The court denied both motions, finding that the
evidence was sufficient to convict Mielak. The court specifically found:
Under all of the circumstances, a jury could properly
convict [Mielak] for digitally penetrating the victim after
she had expressed her desire to be left alone by leaving
the gathering to go to her private quarters, and [Mielak]
then following her to that bathroom, opening the seal of
her closed door, crossing the threshold into her private
space, squatting down beside her, and while she remained
completely frozen face down, removing her pants and
underwear. Under these circumstances, the jury could
conclude that no additional conduct was required of the
victim to express her lack of consent to [Mielak’s] digital
penetration of her vagina.
The court also found that the jury could have concluded that
H.S. was too intoxicated to consent.
Mielak was sentenced to 4 to 8 years’ imprisonment and was
required to register under Nebraska’s Sex Offender Registration
Act. Mielak appeals.
III. ASSIGNMENTS OF ERROR
Mielak assigns that the evidence was insufficient to support
his conviction. He also assigns that the district court erred in
(1) failing to dismiss the case at the close of the State’s evidence, (2) failing to grant his motion for judgment notwithstanding the jury’s verdict, (3) overruling his objection to jury
instruction No. 3, and (4) failing to give his proposed instructions to the jury’s questions submitted during deliberations.
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STATE V. MIELAK
Cite as 33 Neb. App. 309
IV. STANDARD OF REVIEW
[1] 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.
Guzman, 305 Neb. 376,
940 N.W.2d 552 (2020).
[2] Whether jury instructions given by a trial court are correct is a question of law. State v. Matteson,
313 Neb. 435,
985
N.W.2d 1 (2023). On a question of law, an appellate court is
obligated to reach a conclusion independent of the determination reached by the court below.
Id.
V. ANALYSIS
1. Sufficiency of Evidence
Mielak’s first three assignments of error concern the same
central issue: whether the evidence presented at trial was
sufficient to convict him of first degree sexual assault. After
viewing and construing the evidence in a light most favorable
to the State, we conclude that the evidence was sufficient to
support Mielak’s conviction.
[3] Neb. Rev. Stat. § 28-319(1) (Reissue 2016), provides, in
relevant part, that “[a]ny person who subjects another person to
sexual penetration (a) without the consent of the victim [or] (b)
who knew or should have known that the victim was mentally
or physically incapable of resisting or appraising the nature of
his or her conduct” is guilty of first degree sexual assault. The
statutory definition of “[w]ithout consent” is as follows:
(a)(i) The victim was compelled to submit due to the
use of force or threat of force or coercion, or (ii) the
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STATE V. MIELAK
Cite as 33 Neb. App. 309
victim expressed a lack of consent through words, or (iii)
the victim expressed a lack of consent through conduct, or
(iv) the consent, if any was actually given, was the result
of the actor’s deception as to the identity of the actor or
the nature or purpose of the act on the part of the actor;
(b) The victim need only resist, either verbally or
physically, so as to make the victim’s refusal to consent
genuine and real and so as to reasonably make known to
the actor the victim’s refusal to consent; and
(c) A victim need not resist verbally or physically
where it would be useless or futile to do so[.]
Neb. Rev. Stat. § 28-318(8) (Cum. Supp. 2022). Under
§ 28-318(8)(a) and (b), the inquiry is not just whether the
defendant thought the victim expressed a lack of consent, but
whether a reasonable person would have known the victim’s
words and conduct were a “genuine and real” refusal of consent. See State v. Gangahar,
9 Neb. App. 205,
609 N.W.2d
690 (2000).
[4] The Nebraska Supreme Court has held that subsections
(b) and (c) of § 28-318(8) do not set forth additional independent alternative means to show that sexual penetration was
without consent. State v. McCurdy,
301 Neb. 343,
918 N.W.2d
292 (2018). Instead, these subsections inform the nature of
the proof necessary to show one of the definitions set forth
in subsection (a) of § 28-318(8). State v.
McCurdy, supra.
Subsection (b) of § 28-318(8) describes the nature of resist
ance that must be shown in circumstances where resistance by
the victim is relevant to proving that sexual activity was without consent. State v. McCurdy,
301 Neb. at 355,
918 N.W.2d
at 301. Subsection (c) of § 28-318(8) describes circumstances
in which it is not necessary to show resistance by the victim in
order to prove that sexual activity was without consent. State
v.
McCurdy, supra.
[5,6] The State presented to the jury two theories under
which Mielak could be found guilty of first degree sexual
assault. One theory was that Mielak knew or should have
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known that H.S. was mentally or physically incapable of resisting or appraising the nature of Mielak’s conduct due to her
intoxication. The second theory was that H.S. expressed a lack
of consent through her conduct. When a defendant is charged
in alternative ways with committing an offense, the jury can
convict if it finds there is sufficient evidence of either alternative, and thus the judgment of conviction must be affirmed
if the evidence is sufficient to support either of the State’s
alternative theories of guilt. State v. Barnes,
317 Neb. 517,
10
N.W.3d 716 (2024). See, also, State v. Npimnee,
316 Neb. 1,
2
N.W.3d 620 (2024) (“without consent” theory and “incapable
of resisting” theory are two distinct ways of committing same
offense, and thus, where there is evidence of both theories,
juror may determine guilt based on either).
(a) Incapability Theory
After reviewing the record in a light most favorable to the
State, we conclude that the State adduced sufficient evidence
to support the theory that Mielak sexually penetrated H.S.
when he knew or should have known that H.S. was mentally
or physically incapable of resisting or appraising the nature of
his conduct.
There was abundant testimony concerning H.S.’ intoxication
and Mielak’s knowledge of her intoxication. Both H.S. and
Mielak had participated in the drinking game with their roommates. H.S. testified that she drank five alcoholic seltzers in
an hour and was drunk when she went into the bathroom and
vomited. Mielak was present for all these events.
Due to H.S.’ level of intoxication and the length of time
she spent in the bathroom, Hannah was urged by the other
roommates to check on H.S. Caden testified that H.S. had
to be “awfully drunk” to sleep on the bathroom floor. H.S.’
testimony also indicated that there were gaps in her memory,
including not remembering how her underwear and pants were
pulled up after the assault.
Mielak knew that after H.S. vomited, she was in a vulnerable state, having told Hannah that he wanted to enter the
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bathroom and “help” H.S. Upon entering the bathroom, he did
not announce himself to H.S., nor did he inquire as to her state
of mind or consciousness. He did not ask whether H.S. was
asleep or awake, nor did he confirm whether she wanted sexual
contact with him. H.S.’ testimony indicates that she was sleeping when Mielak entered and was not fully conscious before he
initiated the sexual contact.
The jury could have also found that H.S.’ physical demeanor
informed Mielak that H.S. was incapable of resisting or appraising the nature of his conduct. Based on H.S.’ and Hannah’s
testimonies, when Mielak entered the bathroom, he would have
observed H.S. lying on the floor, face down, facing away from
the door. H.S. did not move or speak while Mielak was in the
bathroom, and thus, he had no indication that H.S. was even
conscious when he penetrated her. Mielak’s own statements
acknowledging the wrongfulness of his actions also support a
finding that he recognized that H.S. was incapable of resisting
his actions at the time he exercised them.
[7,8] To the extent that Mielak argues that H.S. was able
to resist or appraise the nature of his conduct because (1)
soon after the sexual contact, she was moving around the
apartment and discussing the incident, and (2) she was able
to recall and testify about the sexual penetration, this argument is without merit. In reviewing a criminal conviction, an
appellate court does not pass on the credibility of witnesses
or reweigh the evidence. State v. Guzman,
305 Neb. 376,
940
N.W.2d 552 (2020). Further, Nebraska case law does not set
forth some mythical level of intoxication after which a person is considered to be incapable of resisting for purposes of
§ 28-319(1)(b). See State v. Npimnee,
316 Neb. 1,
2 N.W.3d
620 (2024). A victim can be incapable of resisting or appraising the nature of a perpetrator’s conduct without suffering
from an “‘abnormality’ or ‘substantial mental or physical
impairment’” like severe intoxication. Id. at 9-10, 2 N.W.3d at
628. Section 28-319(1)(b) requires an individualized inquiry
into the victim’s capacity. State v.
Npimnee, supra.
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Viewing the evidence in a light most favorable to the State,
a fact finder could conclude that H.S. was so intoxicated and
ill as to be incapable of resisting or appraising the nature of
Mielak’s actions but still able to react afterward and recall the
assault. H.S. testified that during the penetration, she “froze”
from fear, and a jury could find that this was due to her intoxication and illness combined with the remaining circumstances
present. This assignment of error is without merit.
(b) Lack of Consent Theory
For the sake of completeness, we also consider whether
there was sufficient evidence for the jury to find that Mielak
subjected H.S. to sexual penetration without her consent.
Mielak argues that when reading the statute holistically, the
law requires that all able victims actively express a lack of
consent through words or conduct. He argues that if the victim
chooses not to actively express refusal, the elements of first
degree sexual assault under § 28-319(1)(a) are not met.
The State disagrees that the statute requires victims to communicate their lack of consent strictly through active expression. In support of its position, the State cites Black’s Law
Dictionary 372 (12th ed. 2024) for the definition of the word
“conduct,” which is “[p]ersonal behavior, whether by action or
inaction, verbal or nonverbal; the manner in which a person
behaves; collectively, a person’s deeds.” The State argues that
based on this definition, inactive behavior can be considered
as part of a victim’s conduct. In this case, the State asserts
that such conduct would include H.S.’ going to her private
bathroom, vomiting, and falling asleep lying face down on the
floor. According to the State, this conduct clearly indicated that
H.S. was not consenting to any sexual contact.
The issue of what constitutes conduct under the statute
appears to be a novel one. However, the statute provides
clarification on the nature of proof necessary to convict where
resistance by the victim is relevant to proving that sexual
activity was without consent. Section 28-318(8) states that the
victim need only resist through words or conduct to make the
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victim’s refusal to consent genuine and real and to reasonably
make known to the actor the victim’s refusal to consent.
When viewing the evidence in a light most favorable to the
State, we find that a reasonable person under the limited and
specific facts of this case would have understood that, based
on H.S.’ conduct, H.S. refused to consent to sexual contact.
The evidence also establishes that Mielak knew that she had
refused to consent to sexual activity with him. Mielak immediately and repeatedly confessed to and apologized for his
actions. On the night of the assault, Mielak was distraught,
cried, and admitted to Caden and Trey that he had “inappropriately touched” H.S. Mielak admitted to “inappropriately
touching” H.S. for a second time on a phone call with Daniel
days after the assault. Additionally, Mielak attempted to remedy the situation by removing himself from the apartment. He
also detached himself from the entire friend group afterward,
which the jury could find indicated shame or embarrassment
arising from his actions.
Mielak’s admissions during the controlled call with H.S.
further show that he knew that H.S. had refused to consent.
Throughout the call, Mielak was distraught and repeatedly
apologized to H.S. for his actions. He described himself as a
“horrible person” and stated that he felt “like a monster” for
what he did to H.S.
Collectively, these behaviors show that Mielak immediately
and fully understood that he sexually penetrated H.S. without
her consent. The question then becomes how Mielak came to
that understanding. There was no evidence that he compelled
her to submit due to force or coercion, that she expressed
a lack of consent through words, or that she was deceived
into giving him consent. That leaves for consideration only
H.S.’ conduct.
As both parties acknowledge, the term “conduct” is not
defined by the statute. Further, neither party could find, nor
could this court identify, controlling case law detailing what
behaviors constitute conduct under the statute. Instead, Mielak
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proposes his own definition based on his reading of the statute,
and the State relies on a Black’s Law Dictionary definition.
[9,10] Statutory interpretation begins with the text, and the
text is to be given its plain and ordinary meaning. State v.
Jones,
317 Neb. 559,
10 N.W.3d 747 (2024). It is not within
the province of a court to read a meaning into a statute that is
not warranted by the language; neither is it within the province
of a court to read anything plain, direct, or unambiguous out of
a statute.
Id.
We find that under the limited facts of this case, “conduct”
is not limited solely to active expression, as Mielak argues.
According to the Black’s Law Dictionary definition, conduct is
a more expansive term that encompasses all the ways in which
a person behaves in a specific context. While we decline to
expressly adopt this definition, we find that an individual’s
conduct is heavily dependent upon the facts of each case.
Depending on the circumstances at hand, inaction could be a
component of an individual’s conduct. With this understanding,
we review the evidence in a light most favorable to the State to
determine whether the jury could find that under these unique
circumstances, H.S.’ conduct expressed her lack of consent.
Before and during Mielak’s sexual penetration of H.S.,
she was lying face down, immobile, on the bathroom floor.
Mielak could not see H.S.’ face or determine if her eyes were
open. Further, H.S. did not stir upon his entrance, nor did she
move her face from the floor. As stated above, her testimony
indicates that she was sleeping when Mielak initially entered
the bathroom.
The relationship between H.S. and Mielak prior to the penetration contributes to the context of the sexual contact, and thus
further informed the jury of H.S.’ conduct. Prior to the sexual
contact, H.S. and Mielak had no romantic or sexual relationship. They were friends and roommates only. Thus, there was
no reason for Mielak to believe that H.S. was willing to engage
in sexual contact with him, especially when she was asleep on
the bathroom floor.
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The physical space in which the assault took place is also
informative of the context and H.S.’ conduct. Before the roommates moved into the apartment, they had agreed to abide by
an apartment rule that no male roommates were allowed in
H.S.’ bathroom. H.S. went into her bathroom to vomit and fall
asleep. Further, Mielak was explicitly told by Hannah not to
enter that room that night, because H.S. was ill due to alcohol
intoxication. The door to the bathroom was closed, and Mielak
had no invitation to enter. Despite having two direct instructions to stay out of the bathroom, Mielak entered that space.
To summarize, Mielak, having no prior sexual or romantic
history with H.S., entered her bathroom when he was prohibited from doing so, discovered her sleeping on the bathroom
floor after she vomited due to intoxication, and proceeded to
sexually penetrate her while she remained immobile. Based
on these specific facts, we conclude that the jury received
sufficient evidence to find that H.S.’ conduct communicated
the message that she was denying consent to sexual penetration, that her refusal was reasonably made known to Mielak,
and that Mielak understood the communication provided to
him. Accordingly, the evidence supports the theory that H.S.
expressed a lack of consent through her conduct and that
Mielak sexually penetrated H.S. without her consent.
2. Jury Instructions
[11,12] Mielak claims that the district court erred in
instructing the jury in two respects. Before we reach the merits of these assignments of error, we briefly review the legal
framework that governs appeals concerning jury instructions.
In an appeal based on a claim of an erroneous jury instruction, the appellant has the burden to show that the questioned
instruction was prejudicial or otherwise adversely affected a
substantial right of the appellant. State v. Swindle, 300 Neb.
734,
915 N.W.2d 795 (2018). All the jury instructions must
be read together, and if, taken as a whole, they correctly state
the law, are not misleading, and adequately cover the issues
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supported by the pleadings and the evidence, there is no prejudicial error necessitating reversal.
Id.
[13,14] To establish reversible error from a court’s refusal
to give a requested 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. German,
316
Neb. 841,
7 N.W.3d 206 (2024). It is not error for a trial
court to refuse to give a party’s requested instruction where
the substance of the requested instruction was covered in the
instructions given.
Id.
(a) Jury Instruction No. 3
Mielak argues that the district court erred in instructing
the jury on the elements of first degree sexual assault in jury
instruction No. 3. Specifically, Mielak objects to the language
taken from § 28-319(1)(b) that states the jury could convict
Mielak if the State proved beyond a reasonable doubt that
Mielak knew or should have known that H.S. was mentally
or physically incapable of resisting or appraising the nature
of his conduct. Mielak asserts that the court should have provided the jury with language explaining that to convict Mielak
under the “should have known” theory of § 28-319(1)(b), the
jury had to find that Mielak committed criminal negligence.
He asserts that this was necessary to communicate to the jury
the sufficient mens rea element that due process requires for a
felony conviction.
During the formal jury instruction conference, the district
court and the parties discussed a prior drafted instruction defining criminal negligence. It is not clear whether this instruction was included in the court’s first proposed instructions or
whether Mielak submitted it. In any event, the court ultimately
declined to provide this proposed instruction to the jury, finding that its language was pulled from an unrelated statute and
that the statutory language of § 28-319(1)(b) was sufficient to
instruct the jury as to the elements of the offense.
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[15] To the extent that Mielak argues that the court erred
in excluding this specific proposed instruction, we do not
consider this argument because Mielak did not include the
proposed instruction in the record on appeal. Appellants are
required to show that their tendered instruction was a correct
statement of law and that it was warranted by the evidence.
See State v. Custer,
292 Neb. 88,
871 N.W.2d 243 (2015). To
do so, appellants need to include their proposed instruction in
the record on appeal.
Id. As we have no instruction to review,
we cannot determine whether it should have been given to
the jury.
[16,17] To the extent that Mielak more generally argues
that the language used in jury instruction No. 3 was insufficient and prejudicial, we disagree. In giving instructions to
the jury, it is proper for the court to describe the offense in
the language of the statute. State v. Swindle,
300 Neb. 734,
915 N.W.2d 795 (2018). Although the law does not require
that a jury instruction track the exact language of the statute, using the specific language of a statute is an effective
means of implementing the intent of the Legislature.
Id. In
this case, jury instruction No. 3 utilized the plain language of
§ 28-319(1)(a) and (b) to describe the offense of first degree
sexual assault. It is a correct statement of law and fully sets
out the elements of the offense as set forth by the Legislature.
Accordingly, we conclude that jury instruction No. 3 was not
prejudicial and did not otherwise adversely affect Mielak’s
substantial rights. We reject this assignment of error.
(b) Response to Jury Questions
Mielak argues that the court erred when it declined to provide the jury with his proposed instructions to its two questions
concerning the word “conduct.” The State disagrees and counters that Mielak’s proposed instructions contradicted the plain
and ordinary meaning of the word “conduct.” The State also
asserts that the proposed instructions were not correct statements of law.
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The first question asked for a definition of the word “conduct” as it was used within the statutory definition of the
phrase “without consent.” Mielak’s proposed instruction
defines conduct as an affirmative act and states that inaction
is not conduct. The second question asked whether action prior
to an incident could be considered conduct. Mielak’s second
proposed instruction states that the conduct expressing a lack
of consent must be directed toward the sexual conduct that is
the subject of the charge.
As stated earlier in this opinion, the statute does not define
the word “conduct.” However, what constitutes “conduct” in
any given case is determined in light of the description provided in § 28-318(8)(b). The jury was provided this description
in jury instruction No. 5. That instruction states in part that
the definition of “without consent” includes the expression
of a lack of consent through the conduct of the victim. It is
not error for a trial court to refuse to give a party’s requested
instruction where the substance of the requested instruction
was covered in the instructions given. State v. German,
316
Neb. 841,
7 N.W.3d 206 (2024). Mielak’s proposed instructions sought to expand upon the definition of “conduct,” but
§ 28-318(8)(b) largely addresses the substance of this issue by
stating that the victim need only resist, either verbally or physically, so as to make his or her refusal to consent genuine and
real and to reasonably make known the refusal. The instructions given adequately advised the jury that to convict Mielak
under the State’s “without consent” theory, the law required
H.S. to engage in conduct sufficient to make her refusal to
consent genuine and reasonably known.
Mielak’s proposed instructions attempt to narrow the plain
and ordinary definition of the term, add requirements and
language not found in the statute, and limit the jury’s consideration of all the facts and circumstances. Mielak has not
provided us with any authority that supports his proposed
definitions or instructions. Mielak has thus not met his burden
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to show that his tendered instructions are correct statements of
law. Without such proof, we cannot find reversible error.
[18,19] The district court’s instruction stated that the jury
possessed the necessary evidence and instructions applicable
to the case. This allowed the jurors to determine that H.S.’
conduct was based on the statutory language provided by
the Legislature and their own common understanding of the
word. Jurors are accepted because they are men and women
of common sense and have a common understanding of words
ordinarily used in our language. State v. Duncan,
293 Neb.
359,
878 N.W.2d 363 (2016). In instructing a jury, the trial
court is not required to define language commonly used and
generally understood.
Id.
While we acknowledge that the jury inquired about the definition of the word “conduct,” we find no error in the district
court’s determination that the juror’s common understanding
of the word, paired with the instructions already given, was
adequate. The word “conduct” is an ordinary term well within
the understanding, common sense, and usage of the average
juror. The Legislature’s decision not to define the term suggests
that the ordinary definition was intended. This is particularly
true considering that the statutory scheme includes a defined
terms list.
For all these reasons, we find no error in the district court’s
refusal to give Mielak’s tendered responses to the jury’s questions. This assignment of error is without merit.
VI. CONCLUSION
We conclude that there was sufficient evidence to support
Mielak’s conviction for first degree sexual assault and that the
district court did not err in determining what jury instructions
or supplemental jury instructions should be given. We affirm
Mielak’s conviction.
Affirmed.
