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05/27/2022 08:05 AM CDT
- 648 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. GARCIA
Cite as 311 Neb. 648
State of Nebraska, appellee, v.
Nicholas Garcia, appellant.
___ N.W.2d ___
Filed May 27, 2022. No. S-21-361.
1. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for a sufficiency of the evidence claim, whether the evidence
is direct, circumstantial, or a combination thereof, the standard is the
same: 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. The relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.
2. Jury Instructions: Appeal and Error. Whether jury instructions are
correct is a question of law, which an appellate court resolves indepen-
dently of the lower court’s decision.
3. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested instruction, an appel-
lant 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.
4. 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 necessitat-
ing reversal.
5. ____: ____. A jury instruction which misstates the issues and has a tend
ency to confuse the jury is erroneous.
Appeal from the District Court for Morrill County: Andrea
D. Miller, Judge. Affirmed.
- 649 -
Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. GARCIA
Cite as 311 Neb. 648
Bell Island, of Island Law Office, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
I. INTRODUCTION
Following a jury trial, Nicholas Garcia was found guilty
of first degree sexual assault and sentenced to 2 to 4 years’
imprisonment. On appeal, Garcia argues that there was insuffi-
cient evidence to support his conviction because the definition
of sexual penetration does not include those actions for which
he was charged and because the State did not prove lack of
consent or, alternatively, that Garcia “‘knew or should have
known that the victim was mentally or physically incapable of
resisting or appraising the nature of [the victim’s] conduct.’” 1
We affirm.
II. FACTUAL BACKGROUND
On July 18, 2019, P.H. called law enforcement to report that
he had been sexually assaulted by Garcia. According to P.H.,
he and his girlfriend worked at a restaurant with Garcia, who
was also the couple’s neighbor. On July 17, P.H. made plans
to go to Garcia’s home after P.H.’s shift at the restaurant. P.H.
finished work at approximately 11 p.m., had a drink at the res-
taurant bar, went home with his girlfriend, and then together
they went to Garcia’s home. Garcia was in the living area of
the home; Garcia’s boyfriend was home, but was asleep else-
where in the home.
Garcia and P.H. had a few beers, and P.H. had a few drinks
of rum from his flask. They also apparently smoked some
marijuana. P.H.’s girlfriend was not drinking that evening.
1
Brief for appellant at 8, quoting Neb. Rev. Stat. § 28-319(1) (Reissue
2016).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. GARCIA
Cite as 311 Neb. 648
Around 1:30 a.m., P.H. indicated that he was tired and
wanted to go home. While waiting for his girlfriend and Garcia
to finish their conversation, P.H. fell asleep. He testified that he
was fully dressed when he fell asleep, including jeans, shorts,
underwear, a sweatshirt, and a shirt. P.H.’s girlfriend attempted
to wake him, but was unsuccessful. She went home to get a
blanket for P.H., then came back to Garcia’s home, wrapped
the blanket around P.H., and left to sleep at their home. P.H.’s
girlfriend testified that P.H. was fully dressed when she left
Garcia’s home.
P.H. testified that when he awoke around 5 a.m., he realized
that his penis was in Garcia’s mouth. He then realized that he
was also completely naked and lying on a different couch than
he had been on when he had fallen asleep. P.H. was upset and
grabbed his clothing, dressed, and went home. When he got
home, P.H. told his girlfriend what had happened and then
called police to report the incident.
Garcia was interviewed. During the interview, Garcia first
denied P.H.’s allegations, then suggested that maybe he had
performed fellatio on P.H. thinking it was Garcia’s boyfriend.
Eventually, Garcia admitted that he had performed fellatio
on P.H.
Garcia was later charged with first degree sexual assault,
tried, convicted, and sentenced to 2 to 4 years’ imprisonment.
He appeals.
III. ASSIGNMENTS OF ERROR
Garcia assigns that the district court erred in (1) finding suf-
ficient evidence to find him guilty and (2) instructing the jury
as to the definition of sexual penetration.
IV. STANDARD OF REVIEW
[1] In reviewing a criminal conviction for a sufficiency of
the evidence claim, whether the evidence is direct, circum-
stantial, or a combination thereof, the standard is the same:
An appellate court does not resolve conflicts in the evi-
dence, pass on the credibility of witnesses, or reweigh the
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. GARCIA
Cite as 311 Neb. 648
evidence; such matters are for the finder of fact. The relevant
question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. 2
[2] Whether jury instructions are correct is a question of law,
which an appellate court resolves independently of the lower
court’s decision. 3
V. ANALYSIS
Garcia assigns on appeal that the district court erred in find-
ing sufficient evidence to support his conviction and in failing
to properly instruct the jury.
Garcia was charged with a violation of § 28-319(1), which
provides:
Any person who subjects another person to sexual pen-
etration (a) without the consent of the victim, (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, or (c) when the actor is nine-
teen years of age or older and the victim is at least twelve
but less than sixteen years of age is guilty of sexual
assault in the first degree.
1. Sufficiency of Evidence
Garcia argues that (1) there was insufficient evidence of
penetration and (2) the State failed to prove either that P.H. did
not consent or that P.H. was mentally or physically incapable
of resisting or appraising the nature of his conduct. These
assertions are without merit.
(a) Sexual Penetration
Garcia first argues that the State did not prove that he
subjected P.H. to sexual penetration. The basis of this argu-
ment is not a factual dispute, but is a legal one—Garcia
2
State v. Davis, 310 Neb. 865, 969 N.W.2d 861 (2022).
3
State v. Clausen, 307 Neb. 968, 951 N.W.2d 764 (2020).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. GARCIA
Cite as 311 Neb. 648
concedes that he performed fellatio on P.H., but asserts that
such an act is not prohibited by the statute.
The basis of Garcia’s argument on appeal is, first, that the
term “sexual penetration” is statutorily defined as “any intru-
sion, however slight, of any part of the actor’s or victim’s body
or any object manipulated by the actor into the genital or anal
openings of the victim’s body.” 4 Because P.H.’s penis was
placed in Garcia’s mouth, rather than an act of penetration by
Garcia into P.H.’s “genital or anal openings,” Garcia contends
that the definition was not met. We disagree.
In examining the language of the definition of “sexual pen-
etration,” we observe that the language upon which Garcia
primarily relies is a catchall for those acts of penetration that
do not fit within the specific acts listed at the beginning of
the definition, a list which includes “fellatio.” 5 And we have
defined “fellatio” “‘as the practice of obtaining sexual satis-
faction by’” 6 “‘oral stimulation of the penis,’” 7 which, by our
review of the record, is what occurred in this case.
We find no merit to Garcia’s other suggestion on appeal—
that what occurred in this case was not fellatio for purposes
of the statute—because this court has previously found that
only the act of a victim’s being forced to fellate a defendant
was penetration for purposes of the statute. 8 In support of
this contention, Garcia directs us to State v. Gonzales. 9 In
Gonzales, the court was presented with a defendant who fel-
lated the victim and also forced the victim to perform fellatio
on him (the defendant). In our opinion, we defined fellatio
and concluded it was sexual penetration for purposes of
the statute, but in applying those findings to the defendant
4
See Neb. Rev. Stat. § 28-318(6) (Reissue 2016).
5
See id.
6
State v. Gonzales, 219 Neb. 846, 849, 366 N.W.2d 775, 778 (1985).
7
Id. at 849, 366 N.W.2d at 777.
8
See State v. Gonzales, supra note 6.
9
Id.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. GARCIA
Cite as 311 Neb. 648
concluded only that the defendant was guilty because the
evidence showed that he had forced the victim to perform
fellatio on him.
But Garcia reads too much into the court’s failure to extend
its holding. The Gonzales court did not explicitly find that one
scenario was fellatio and the other not. Rather, the court first
considered the situation of the victim’s being forced to perform
fellatio, and the court concluded that it was penetration and a
violation of the applicable statute. The court did not then need
to also determine whether the opposite was true because it
had determined that there was sufficient evidence to support
the conviction.
Garcia does not point us to authority that explicitly holds
that a defendant’s fellating a victim does not meet the defini-
tion of penetration, nor has our review found any. The statutory
definition of “sexual penetration” is not limited to only cases
of the victim’s fellating a defendant, nor can we conceive of
any rationale for making such a distinction. There is no merit
to Garcia’s assignment of error regarding the sufficiency of the
evidence regarding penetration.
(b) Consent and Force
Garcia next contends that the record showed that at no point
did P.H. say no, and P.H.’s actions in pushing Garcia’s head
down during the act amounted to nonverbal consent. As evi-
dence that P.H. was mentally and physically capable of resist-
ing or appraising the nature of his conduct and therefore was
able to give consent, Garcia also points to testimony by P.H.
and his girlfriend that although P.H. had been drinking, he was
not drunk.
Initially, we note that in response to questioning at oral
argument, Garcia asserted that the jury must be unanimous in
its determination under § 28-319(1). In other words, Garcia
suggested that the jury must collectively conclude either that
P.H. did not consent or that Garcia knew or should have
known that P.H. was “mentally or physically incapable of
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. GARCIA
Cite as 311 Neb. 648
appraising the nature of his . . . conduct.” 10 But we conclude
that Garcia has waived any argument he might have on this
issue by failing to raise it below or in his brief on appeal. 11 As
such, we need not address it.
We instead limit our review to whether the evidence was
sufficient when viewed in a light most favorable to the State.
And considering the evidence in that light, it is clear that the
evidence was sufficient to support the jury’s finding that P.H.
did not consent. First, P.H. testified that he did not consent.
Moreover, P.H. testified that he was asleep and did not awaken
until he had ejaculated. It was at that point, according to P.H.’s
testimony, that he realized what was occurring and that it was
Garcia—and not his girlfriend—fellating him. He then objected
to the act and left Garcia’s home.
Additionally, while there was testimony that P.H. was a
regular drinker and did not think he was drunk, there was also
evidence that P.H. might have been more inebriated than he
would admit to. P.H. testified that he had drunk alcohol first at
work, then later at Garcia’s home, and that he had also smoked
marijuana at Garcia’s home. There was also evidence that P.H.
had fallen asleep to the point that he could not be woken, as
well as testimony that P.H. had urinated on himself, removed
his clothing, and switched locations from one couch to another
within Garcia’s home, all without any recollection of what had
occurred. Thus, there was evidence to support a finding that
Garcia knew or should have known that P.H. was in no position
to appraise the nature of his conduct.
When considered in a light most favorable to the State, there
was sufficient evidence to find a lack of consent or, alterna-
tively, that Garcia knew or should have known that P.H. was
unable to appraise the nature of his conduct. There is no merit
to Garcia’s assignment of error to the contrary.
10
See § 28-319(1).
11
See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. GARCIA
Cite as 311 Neb. 648
2. Jury Instructions
Garcia next assigns that the district court erred in not
instructing the jury with his proposed definition of penetration.
We note that Garcia does not assign or sufficiently argue on
appeal that the district court erred in the instruction given to
the jury regarding the definition of penetration.
[3-5] 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. 12 All the jury instruc-
tions must be read together, and, if taken as a whole, they cor-
rectly 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 A jury instruction
which misstates the issues and has a tendency to confuse the
jury is erroneous. 14
On the other hand, Garcia’s requested instruction would
have instructed the jury that “[f]ellatio is where the defendant
has engaged the victim’s mouth with the defendant’s penis.”
This language is in line with the language from Gonzales,
which Garcia relies upon to show that the act in this case
did not meet the definition of “sexual penetration.” 15 But, as
noted above, this is not a correct statement of the holding in
Gonzales, nor of the law more generally.
Meanwhile, the jury was instructed that “[p]enetration
includes any contact, however slight, between the defendant’s
sex organ and the victim’s mouth or tongue or between the
victim’s sex organ and the defendant’s mouth or tongue.”
12
State v. Clausen, supra note 3.
13
Id.
14
Id.
15
See State v. Gonzales, supra note 6.
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Nebraska Supreme Court Advance Sheets
311 Nebraska Reports
STATE v. GARCIA
Cite as 311 Neb. 648
We have noted that if there is an applicable instruction in
the Nebraska Jury Instructions, the court should usually give
this instruction to the jury in a criminal case. 16 A review
of this instruction shows that it is from the Nebraska Jury
Instructions 17 and is consistent with the language of the statu-
tory definition of “sexual penetration,” while still extrapolat-
ing the meaning of certain terms which have specific meanings
that might not otherwise be known to a member of a jury (i.e.,
cunnilingus and fellatio).
There was no error in the court’s refusal to give Garcia’s
proposed instruction of “penetration” or in the court’s actual
instruction to the jury of the term “penetration.” This assign-
ment of error is without merit.
VI. CONCLUSION
We affirm the decision of the district court.
Affirmed.
16
State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).
17
See NJI2d Crim. 4.6.