State of Nebraska v. Nicholas Garcia

Summary

The Nebraska Supreme Court affirmed Nicholas Garcia’s convictions and sentence for first degree sexual assault. The court held that fellatio constituted sexual penetration under Nebraska law, that sufficient evidence supported findings of lack of consent or incapacity, and that the jury instructions were proper.

Holdings

1. Fellatio performed by the defendant on the victim constitutes sexual penetration for purposes of Nebraska's first-degree sexual-assault statute. The statutory definition is not limited to situations in which the victim performs fellatio on the defendant.
2. The evidence was sufficient for a rational jury to find that P.H. did not consent or, alternatively, that Garcia knew or should have known that P.H. was unable to appraise the nature of his conduct.
3. The district court did not err in refusing Garcia's proposed instruction because the proposed definition was not a correct statement of the law, and the instruction given correctly stated the law, was not misleading, and adequately covered the issues.
4. Garcia waived any argument concerning jury unanimity because he did not raise it below or present it in his appellate brief.

Questions Presented

1. Whether the evidence was sufficient to establish that Garcia subjected P.H. to sexual penetration under Neb. Rev. Stat. § 28-319(1).
2. Whether the evidence was sufficient to establish lack of consent or that Garcia knew or should have known that P.H. was mentally or physically incapable of resisting or appraising the nature of his conduct.
3. Whether the district court erred by refusing Garcia's proposed jury instruction defining penetration and by giving the instruction it used.

Disposition

affirmed