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STATE V. BERSHON

Cite as 313 Neb. 153

State of Nebraska, appellee, v. 

Paul D. Bershon, appellant.

___ N.W.2d ___

Filed January 6, 2023. No. S-21-656.

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. Indictments and Informations: Pleadings. Objections to the form or 

content of an information should be raised by a motion to quash.

3. Pleas: Indictments and Informations: Waiver. When a defendant 

enters a plea in a case, he or she waives objections to all defects in 

an information that can be reached by a motion to quash, except those 

defects which are of such a fundamental character as to make the indictment wholly invalid.

4. Constitutional Law: Appeal and Error. A constitutional issue not 

presented to or passed upon by the trial court is not appropriate for consideration on appeal.

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 

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. Sexual Assault: Words and Phrases. “Coercion” in Neb. Rev. Stat. 

§ 28-318(8)(a)(i) (Reissue 2016) includes nonphysical force.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

01/06/2023 09:04 AM CST
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Cite as 313 Neb. 153

Appeal from the District Court for Washington County: 

John E. Samson, Judge. Affirmed.

Michael J. Wilson, of Berry Law Firm, for appellant.

Douglas J. Peterson, Attorney General, and Nathan A. Liss 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Miller-Lerman, J.

NATURE OF CASE

Paul D. Bershon appeals his 19 convictions in the district 

court for Washington County consisting of 13 counts of first 

degree sexual assault, 3 counts of incest, and 3 counts of 

intentional abuse of a vulnerable adult. Bershon claims that 

his convictions for 17 of the 19 counts violate his due process 

rights, because he was not provided adequate notice of the 

charges against him and because the multiple convictions subjected him to double jeopardy. Bershon also claims that there 

was not sufficient evidence to support his 13 convictions for 

first degree sexual assault, because the State did not show that 

the victim was mentally incapable of resisting or appraising 

the nature of sexual conduct or that she had expressed a lack 

of consent in an observable manner. He further claims that 

there was not sufficient evidence to support his three convictions for intentional abuse of a vulnerable adult, because the 

State did not show that the victim was sexually abused. We 

affirm Bershon’s convictions.

STATEMENT OF FACTS

The operative information in this case charged Bershon with 

13 counts of first degree sexual assault, 3 counts of incest, and 

3 counts of intentional abuse of a vulnerable adult. The victim, 

with respect to each charge, was Bershon’s stepdaughter, B.B., 

who is intellectually disabled.
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B.B. was born in late December 1990, when her mother, Pam 

Leman, was married to B.B.’s father. B.B.’s parents divorced a 

few years later, and Leman married Bershon in 2000. Leman 

and Bershon had two children together, born in 2001 and 2002, 

respectively. The family, including Leman, Bershon, B.B., and 

the two younger children moved to a home in Blair, Nebraska, 

in 2006.

The investigation that led to the charges against Bershon 

began on May 21, 2018, when Leman reported to law enforcement that on May 16, she had walked into the kitchen of the 

family home and found B.B. being sexually abused by Bershon. 

Law enforcement officers interviewed B.B. about the May 16 

incident, and in later interviews, B.B. reported that Bershon 

had been sexually abusing her over a period of years beginning 

in 2006 when they moved to the house in Blair.

In the original complaint filed in the county court on March 

12, 2021, and in the original information filed in the district court on March 30, the State charged Bershon with 13 

counts of first degree sexual assault, 3 counts of incest, and 

10 counts of intentional abuse of a vulnerable adult. Bershon 

filed a motion to quash in which he asserted that seven counts 

of intentional abuse of a vulnerable adult that were charged 

as having occurred in 2015 and prior years were time barred 

under the 6-year statute of limitations for the offense as set 

forth in Neb. Rev. Stat. § 29-110(9) (Reissue 2016). In the 

motion to quash, Bershon made no allegations regarding due 

process, double jeopardy, or lack of notice, and he did not 

move to quash any counts other than the seven counts of intentional abuse of a vulnerable adult.

The district court granted the motion to quash and ordered 

the six counts of intentional abuse of a vulnerable adult related 

to the years 2009 through 2014 dismissed with prejudice, but 

the court allowed the State time to amend the count related 

to the year 2015 to the extent it could be amended to allege 

an offense occurring on or after March 12, 2015. In response, 

the State amended the information to allege four counts of 
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intentional abuse of a vulnerable adult, including one alleged to 

have occurred between March 12 and December 31, 2015, but 

it later further amended the information to omit that count and 

to allege only three counts of intentional abuse of a vulnerable 

adult related to the years 2016, 2017, and 2018, respectively. 

Those three counts went to trial.

In the operative information, the State alleged 13 counts 

of first degree sexual assault in violation of Neb. Rev. Stat. 

§ 28-319 (Reissue 2016), which provides in relevant part that 

one commits first degree sexual assault if one “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.” In each of the 13 counts, the 

State alleged that Bershon had subjected B.B. to “sexual penetration: (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.” In the first 12 of the 13 counts of first degree sexual 

assault, the State alleged that the offense occurred on or about 

January 1 through December 31 of each of the years from 2006 

through 2017, respectively. In the 13th count, the State alleged 

that the offense occurred “[o]n or about May 16, 2018.”

The State also charged three counts of incest in violation of 

Neb. Rev. Stat. § 28-703 (Reissue 2008), which, prior to 2015, 

provided that one commits incest if one “engages in sexual 

penetration with his or her minor stepchild.” In each of the 

three counts of incest in the operative information, the State 

alleged that Bershon had “engaged in sexual penetration with 

his . . . minor stepchild.” The first two counts were alleged 

to have occurred between January 1 and December 31 in the 

years 2006 and 2007, respectively. The third count was alleged 

to have occurred between January 1 and December 25, 2008. 

B.B. turned 18 years old in late December 2008.

The State finally charged three counts of intentional abuse 

of a vulnerable adult in violation of Neb. Rev. Stat. § 28-386 
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(Reissue 2016), which provides in relevant part that a “person 

commits knowing and intentional abuse . . . of a vulnerable 

adult . . . if he or she through a knowing and intentional act 

causes or permits a vulnerable adult . . . to be: (a) Physically 

injured; [or] (c) Sexually abused.” In each of the three counts 

of intentional abuse of a vulnerable adult in the operative information, the State alleged that Bershon had “through a knowing 

and intentional act, cause[d] or permit[ted] a vulnerable adult 

to be (a) physically injured; (c) sexually abused.” The first two 

counts of intentional abuse of a vulnerable adult were alleged 

to have occurred between May 1 and December 31, 2016, and 

between January 1 and December 31, 2017, respectively, and 

the third count was alleged to have happened “[o]n or about 

May 16, 2018.”

At the jury trial, the State presented evidence including, 

inter alia, testimony by Leman, by B.B., by law enforcement 

officers who investigated the charges against Bershon, and by 

professionals who had evaluated or counseled B.B. The law 

enforcement officers generally testified that on May 21, 2018, 

Leman had reported an incident involving Bershon and B.B. 

that had occurred on May 16, and that in later interviews, 

B.B. reported incidents that had occurred over a period of 

years prior to that date.

Leman first testified regarding general family matters, 

including her prior marriage to B.B.’s father, B.B.’s birth in 

December 1990, her marriage to Bershon in 2000, the birth of 

their two children in 2001 and 2002, and the family’s move to 

Blair in 2006. Leman’s testimony then focused on B.B., and 

Leman described her as having “an eight- or nine-year-old 

mentality in a young woman’s body.” Leman described physical and medical issues that B.B. had that were apparent since 

birth. Leman testified that around the time B.B. was to start 

school, Leman became aware that B.B. had certain cognitive 

or intellectual disabilities and she held B.B. back from starting 

school for a year. When B.B. started school, it was determined 

that she could not be in the main classroom; instead, she was 
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placed into a special needs program, where she remained 

through her entire school career. B.B. was subject to an individualized education plan.

Leman testified that B.B. was not diagnosed with a specific intellectual disability, but that she was determined to 

be learning disabled and was expected to remain at the same 

level of functioning through her life. Leman also testified that 

B.B. qualified to receive benefits from the Social Security 

Administration based on an intellectual disability. Leman testified that as an adult, B.B. was still not capable of living alone 

and could not perform functions such as driving a car, operating an oven, balancing a checkbook, or shopping for groceries. 

Leman testified that if she or other family members were no 

longer able to care for B.B., B.B. would need to live in some 

type of care facility.

Leman’s testimony then focused on the events of May 16, 

2018. Leman testified that her normal morning routine was 

that she would shower and then stay in the bathroom to finish getting ready and dressed. But that morning, after she 

finished showering, Leman walked down the hallway to tell 

Bershon something. When she walked into the kitchen, she 

saw Bershon standing in a corner of the kitchen with his robe 

open and wearing nothing underneath the robe. B.B. was bent 

over in front of Bershon facing him and with her head at his 

waist level. When B.B. heard Leman entering the kitchen, she 

jumped up startled and ran to her bedroom. Leman saw that 

Bershon had an erection, and Bershon immediately closed his 

robe after B.B. jumped up. Leman testified that after seeing 

this, she screamed “Oh My God” multiple times and that she 

heard Bershon say, “I’m lonely and she wants to.” Leman then 

picked up a rifle that was in the dining room, and she headed 

toward Bershon, who got down on his knees. Leman held the 

rifle to Bershon’s head, and he said, “[P]lease don’t kill me.” 

Leman did not pull the trigger.

Leman testified that after the incident, Bershon went outside. After Leman eventually got B.B. to come out of her 
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room, she made sure that B.B. was never alone and she 

attempted to keep B.B. from being around Bershon the rest of 

that day. Leman testified that Bershon left the residence the 

next day to stay at a motel and that the day after that, he left 

Blair to go and stay with a relative in Colorado. Leman testified that she did not report the May 16, 2018, incident to law 

enforcement until May 21 because she was “in such shock, just 

a daze.” She eventually reported the incident because she “was 

urged by friends to call.”

On cross-examination, Leman testified that it was not until 

she reported the May 16, 2018, incident to law enforcement 

that she learned that such incidents had been going on for 

years. She testified that in the years prior to 2018, she had 

never seen anything that made her think anything inappropriate 

was going on and that B.B. had never said anything to her. On 

redirect, Leman testified that she did not manipulate or program B.B. to accuse Bershon of molesting her.

B.B. testified that throughout her school years, she was “in 

a resource room” and that she “had help with any subject that 

[she] took.” She testified that she graduated high school when 

she was “[s]omewhere in [her] twenties.”

With regard to the May 16, 2018, incident, although she 

could not identify the specific date it occurred, B.B. testified 

regarding an incident that occurred between her and Bershon in 

the kitchen. She testified that she was “sucking on his private” 

when “he smacked me on the head and then my mom came 

in.” B.B. clarified that by “private” she meant his penis and 

that by “sucking” she meant that his penis was in her mouth. 

B.B. testified that she did not know why she had done it, that 

she knew it was wrong, and that she was scared that her mother 

was mad at her.

B.B. testified that she understood sex to be “[w]hen a man 

puts his you know what in you.” She clarified that she meant 

“his dick,” which she agreed meant his penis. B.B. testified 

that she and Bershon had had sex in the house in Blair. She 

testified that it had happened when her mother was gone and 
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that it had happened “a lot.” B.B. stated that by “a lot” she 

meant “[a] hundred times.” B.B. agreed that by “sex” she 

meant that Bershon put his penis inside her vagina. She testified that it was Bershon’s idea and that she did not say no, 

because she was scared.

B.B. testified that Bershon started having sex with her in 

2006 when they moved to the house in Blair. B.B. also testified that there were times when Bershon would put his penis 

in her mouth and that “goo or juice would come out” of it. 

When asked whether such incidents had “happened throughout 

the years from 2006 to 2018” and whether “it happened every 

year that [she] lived in” the house in Blair, B.B. replied, “Yes.” 

B.B. testified that she did not tell her mother what was happening, because she was “scared to tell her” and she “was afraid 

[Leman and Bershon] would like get into a fight or divorce.” 

B.B. also testified that there were times that Bershon would 

get into the shower with her and would touch her “[d]own in 

[her] — the V word.” She agreed that she meant her vagina 

and that Bershon put his fingers inside.

On cross-examination, Bershon’s counsel asked B.B. with 

respect to each year from 2007 through 2018 whether she 

remembered Bershon having sex with her or touching her 

in that specific year. B.B. replied to each question by stating that she did not remember. On redirect, B.B. agreed that 

when she was under stress or confused, it was easier for her to 

say she did not remember, and she testified that it was something she did “[l]ike all the time.”

Other witnesses at trial testified regarding B.B.’s mental 

capacity and limitations. A school psychologist who worked 

for the schools in Blair testified that B.B. was put into a special education program when she transferred into the Blair 

schools. He testified that testing on B.B. in 2007 showed that 

she had an IQ of 48 and that she was classified as having 

a “mental handicap” based on her IQ score, as well as “her 

achievement scores, her reading skills, her math skills, [and] 

her writing skills.” He testified that B.B.’s “academic skills 
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would have been for the most part clustered at late elementary, 

fourth through sixth grade” and that she remained in special 

education throughout her high school years.

A clinical psychologist who performed a psychological 

assessment of B.B. in December 2018 testified that the assessment showed B.B. had an IQ of 63 which was considered as 

being “extremely low range.” The clinical psychologist diagnosed B.B. as having a “mild intellectual disability” as well as 

“major depressive disorder” and “recurrent, mild, . . . unspecified anxiety disorder.”

Finally, a counselor who provided therapy for B.B. beginning in July 2018 testified that she diagnosed B.B. with 

post-traumatic stress disorder and that her symptomology 

was consistent with having suffered sexual abuse or sexual 

trauma.

After the State rested its case, Bershon moved for a directed 

verdict on all counts. With regard to the 17 counts related to 

years prior to 2018, he argued that there was a lack of evidence, because B.B. testified upon cross-examination that she 

could not remember whether sexual abuse occurred in each of 

the respective years from 2006 through 2017. With regard to 

the counts of intentional abuse of a vulnerable adult, he argued 

that although there was testimony regarding B.B.’s IQ and her 

intellectual disability, there was no expert testimony to show 

that she was a vulnerable adult or that she lacked decisionmaking capacity. Bershon made no argument regarding due 

process or double jeopardy in connection with the motion for 

directed verdict. The court overruled Bershon’s motion for 

directed verdict. After he rested his defense, Bershon renewed 

the motion for directed verdict and the court again overruled 

the motion.

The jury found Bershon guilty of all 13 counts of first 

degree sexual assault, all 3 counts of incest, and all 3 counts 

of intentional abuse of a vulnerable adult. The court thereafter sentenced Bershon to imprisonment for 40 to 45 years 

for each of the first degree sexual assault convictions, for 
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2 to 3 years for each of the incest convictions, and for 2 to 3 

years for each of the intentional abuse of a vulnerable adult 

convictions. The court ordered that the sentences for the 3 

incest convictions and for the 10 first degree sexual assault 

convictions that were related to the years 2006 through 2015 

be served concurrently to one another, that the sentences for 

the 3 intentional abuse of a vulnerable convictions and for the 

3 first degree sexual assault convictions related to the years 

2016 through 2018 be served concurrently to one another, and 

that the two sets of concurrent sentences be served consecutively to one another.

Bershon appeals his convictions.

ASSIGNMENTS OF ERROR

Bershon generally makes two groups of assignments of 

error: the first arguments involve legal issues, and the second 

arguments involve sufficiency of evidence. Bershon specifically claims that his convictions for all counts other than the 

two counts alleged to have occurred on or about May 16, 2018, 

were in violation of his due process rights, because (1) he was 

not provided adequate notice of the charges and (2) the multiple convictions subjected him to double jeopardy. Bershon 

also claims that there was not sufficient evidence to support 

his 13 convictions for first degree sexual assault, because there 

was not sufficient evidence that B.B. was mentally incapable 

of resisting or appraising the nature of the sexual conduct, nor 

was there sufficient evidence that B.B. expressed a lack of 

consent in an observable manner. Bershon finally claims there 

was not sufficient evidence to support his three convictions for 

intentional abuse of a vulnerable adult, because there was not 

sufficient evidence that B.B. was sexually abused.

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 
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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. Pauly, 311 Neb. 418, 

972 N.W.2d 907 (2022).

ANALYSIS

Bershon Failed to Raise Due Process and Double 

Jeopardy Issues in the District Court and 

Waived the Issues for Appeal.

Bershon first claims that 17 of his convictions were in violation of his due process rights, because (1) he was not provided 

adequate notice of the charges and (2) the multiple convictions 

subjected him to double jeopardy. This claim relates to all 

convictions other than the convictions for first degree sexual 

assault and for intentional abuse of a vulnerable adult that were 

alleged to have occurred on or about May 16, 2018. Bershon 

generally argues that because each of the offenses was alleged 

as having occurred between January 1 and December 31 of 

the respective calendar years from 2006 through 2017 rather 

than on more specific dates in those years, he did not have 

enough information to respond to the charges and he risked 

being punished multiple times for the same offense or offenses. 

We conclude that because Bershon did not properly raise these 

objections in the district court, he did not preserve the issues 

for appeal.

[2,3] We first address Bershon’s argument that the information did not provide adequate notice of the charges. Objections 

to the form or content of an information should be raised by 

a motion to quash. See, Neb. Rev. Stat. § 29-1808 (Reissue 

2016); State v. Davis, 310 Neb. 865, 969 N.W.2d 861 (2022). 

When a defendant enters a plea in a case, he or she waives 
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objections to all defects in an information that can be reached 

by a motion to quash, except those defects which are of such 

a fundamental character as to make the indictment wholly 

invalid. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016). 

We have stated that defects of a fundamental character are 

not subject to waiver. See State v. Davis, supra. However, 

in State v. Meers, 257 Neb. 398, 403, 598 N.W.2d 435, 439 

(1999), the defendant attempted to raise a challenge on appeal 

to an information charging an offense within a 16-month 

period as being “impermissibly broad in that it fails to 

inform [the defendant] with reasonable certainty of the crimes 

charged,” and we determined that the challenge was waived 

for appeal because the defendant failed to file a motion to 

quash the information on that basis. In this case, although 

Bershon filed a motion to quash certain charges in the original information filed against him, the issues he raised in that 

motion did not include the argument he attempts to make on 

appeal that he did not have adequate notice of the charges 

related to the years 2006 through 2017. Because Bershon did 

not move to quash those charges on the basis of inadequate 

notice that he now asserts on appeal, he has waived the argument on appeal.

[4] Bershon also argues that the 17 convictions violate his 

constitutional right against double jeopardy. A constitutional 

issue not presented to or passed upon by the trial court is not 

appropriate for consideration on appeal. State v. Reinhart, 283 

Neb. 710, 811 N.W.2d 258 (2012). In Reinhart, we concluded 

that because the defendant failed to raise the issue in the trial 

court, he had waived his double jeopardy claim and we did not 

address it. Bershon argues that he could not raise the double 

jeopardy issues in a motion to quash, because the violation 

would not be apparent until it was known what evidence the 

State would present at trial. He argues that the alleged double 

jeopardy violation became apparent only after the State’s evidence failed to show specific dates to support each of the 

17 convictions.
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We note, however, that even after the State’s evidence was 

presented, Bershon did not raise the double jeopardy arguments in the district court. Bershon filed a motion for directed 

verdict at the close of the State’s evidence, and he renewed 

the motion after he rested his case. However, Bershon’s arguments for directed verdict related to the sufficiency of the evidence and he made no argument to the district court regarding 

double jeopardy. Bershon also did not raise double jeopardy 

issues after he was found guilty of all counts, and he did not 

raise double jeopardy objections upon being sentenced for 

the convictions.

We need not determine the precise point at which it would 

have been appropriate for Bershon to raise his double jeopardy 

arguments to the district court, because Bershon did not present them to the district court at any point. Bershon therefore 

waived the double jeopardy issues for appeal.

We conclude that Bershon waived his arguments that 17 

convictions violated due process and double jeopardy, and we 

therefore reject his first assignment of error.

There Was Sufficient Evidence to Support 

Bershon’s Convictions for First 

Degree Sexual Assault.

Bershon next contends that there was not sufficient evidence 

to support his 13 convictions for first degree sexual assault. 

He argues the evidence did not show that B.B. was incapable 

of consenting to sexual conduct or that any sexual conduct 

with Bershon was without her consent. Because we determine 

that the evidence was sufficient to support the convictions, we 

reject this argument.

Bershon was convicted of first degree sexual assault under 

§ 28-319, which provides in relevant part that one commits 

first degree sexual assault if one “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 
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nature of his or her conduct.” The State charged Bershon under 

both the “without consent” and “mentally incapable of resisting” versions of first degree sexual assault, and the district 

court instructed on both.

We note first that in connection with his argument regarding double jeopardy previously considered, Bershon argued 

that the evidence presented by the State failed to show that 

sexual abuse occurred in each of the calendar years from 

2006 through 2017. Bershon does not repeat this argument 

in connection with his claim that there was not sufficient 

evidence to support his convictions for first degree sexual assault. However, we note the following exchange during B.B.’s direct testimony, which followed her testimony 

regarding incidents in which Bershon subjected her to sexual 

penetration:

Q. Okay. And this happened — Is it fair to say that this 

happened starting in Blair when you lived in that house, 

when you started high school, it happened throughout the 

years from 2006 to 2018?

A. Yes.

Q. Okay. And you said it happened a lot, correct?

A. Yes.

Q. Do you think it happened every year that you lived 

in that house?

A. Yes.

Despite this overarching evidence, Bershon highlights 

inconsistencies in B.B.’s testimony. He notes that she gave 

different definitions of what she considered “a lot” and that 

on cross-examination, when she was asked specific questions 

as to whether an incident occurred in each year from 2006 

through 2017, she responded that she did not remember. We 

acknowledge these inconsistencies in B.B.’s testimony, but as 

set forth above, B.B. testified that the sexual conduct occurred 

“throughout the years from 2006 to 2018” and that “it happened every year.” Thus, there was evidence from which the 

jury could find that sexual conduct occurred in each year from 
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2006 through 2018, and any inconsistency goes to the credibility of B.B.’s testimony.

In reviewing a criminal conviction, we do 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. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022). 

We therefore determine that there was sufficient evidence from 

which the jury could find that sexual conduct occurred in each 

of the years charged.

The focus of Bershon’s argument on appeal, however, is 

that the evidence was not sufficient, because there was not sufficient evidence that B.B. was mentally incapable of resisting 

or appraising the nature of her conduct or that she expressed 

a lack of consent in an observable manner. Bershon cites portions of B.B.’s testimony in which she appears to indicate that 

she was aware of what sexual activity was and that she was 

aware that she could have resisted his conduct. He also argues 

that although there was evidence that B.B. had intellectual and 

learning disabilities, such evidence did not support the specific 

finding that she was incapable of resisting or appraising the 

nature of her conduct. He also argues there was not sufficient 

evidence to establish that he subjected B.B. to sexual penetration without her consent; he argues there was no evidence that 

he used force or the threat of force or that B.B. observably 

expressed a lack of consent.

[5] In this case, the State charged first degree sexual assault 

under § 28-319 under both subsection (a) as being “without the 

consent of the victim” and subsection (b) regarding an actor 

“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.” We have stated that when a defendant 

is charged in alternative ways with committing an offense, 

the jury can convict if it finds there is sufficient evidence of 
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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. McCurdy, 301 Neb. 

343, 918 N.W.2d 292 (2018). In McCurdy, as in the present 

case, the defendant was charged under § 28-319 based alternatively on subsection (a) and subsection (b). Therefore, in the 

present case, as in McCurdy, Bershon’s convictions should be 

affirmed if there is sufficient evidence that sexual penetration 

was without B.B.’s consent, whether or not there was also sufficient evidence that B.B. was mentally incapable of resisting 

or appraising the nature of her conduct.

With regard to whether sexual penetration was “without consent,” Bershon argues that there was no evidence he used physical force or the threat of force against B.B. and that there was 

no evidence that B.B. ever expressed a lack of consent through 

words or actions. However, as we determined in McCurdy, 

supra, a lack of consent can be proved when it is shown that 

the defendant compelled the victim to submit due to the use of 

coercion, as distinct from force or the threat of force. We noted 

in McCurdy that “[w]ithout consent” is defined in Neb. Rev. 

Stat. § 28-318(8)(a) (Reissue 2016) to mean that

(i) [t]he victim was compelled to submit due to the use 

of force or threat of force or coercion, or (ii) the 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.

In addition to stating that under § 28-318(8)(a)(i), “coercion” 

was an alternate to “force” and “threat of force,” we also 

determined that “coercion” can be shown to have occurred and 

shown to have established “without consent” even when it was 

not shown that the victim actively resisted at the moment relevant to the charge of first degree sexual assault.

[6] In State v. McCurdy, supra, we held that “‘coercion’ in 

§ 28-318(8)(a)(i) includes nonphysical force.” 301 Neb. at 358, 
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918 N.W.2d at 302. In concluding in McCurdy that the evidence was sufficient to show that the defendant compelled the 

victim to submit to sexual penetration by use of coercion and 

that, therefore, the sexual acts were without consent, we noted 

evidence regarding a history of the defendant’s sexual abuse 

of the victim, “as well as evidence regarding [the defendant’s] 

position of authority and dominion within [the victim’s] life 

and household.” 301 Neb. at 358, 918 N.W.2d at 302. We 

therefore stated that “under a totality of the circumstances 

analysis, coercion within the context of a family or household 

relationship between a minor and an adult authority figure can 

support a finding that a defendant compelled a victim to submit 

to sexual penetration by the use of ‘coercion.’” Id. at 363, 918 

N.W.2d at 305.

Similar to McCurdy, the evidence in this case indicated that 

Bershon subjected B.B. to sexual penetration over a period of 

several years within the context of a family and household relationship, beginning when B.B. was a minor and Bershon was 

an adult authority figure. Bershon was B.B.’s stepfather, and 

they lived in the same household during the years the activity 

occurred. B.B.’s testimony indicated that the sexual activity 

continued throughout the years and that it started in 2006, 

when she was 15 or 16 years old. The activity continued thereafter, and Bershon was charged with counts that occurred after 

B.B. was no longer a minor. However, there was extensive evidence regarding B.B.’s intellectual disability, including B.B.’s 

own testimony, which allowed the jury to observe for itself 

the level of her intellectual functioning. We note also Leman’s 

testimony describing B.B. as having “an eight- or nine-year old 

mentality in a young woman’s body” and the school psychologist’s testimony that B.B.’s “academic skills would have been 

for the most part clustered at later elementary, fourth through 

sixth grade.”

Although several counts charged offenses that occurred in 

years when B.B. was no longer a minor and was well into her 

twenties, for purposes of determining whether Bershon used 
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coercion, the jury could have found based on the evidence 

that B.B.’s immature mentality was similar to that of a minor, 

and therefore the evidence of the dynamics of the familial and 

household relationship between Bershon and B.B. could support a finding Bershon compelled B.B. to submit to sexual 

penetration by the use of coercion.

In addition to evidence of ongoing sexual conduct over 

several years in the context of a stepparent-stepchild relationship in which Bershon was an adult authority figure in B.B.’s 

household, we further note B.B. testified that she did not want 

to engage in sexual conduct with Bershon but that she was 

afraid of the consequences if she did not comply. She testified that she was afraid that her failure to comply could cause 

arguments between Bershon and Leman and that they might 

divorce. We determine the evidence was sufficient to establish 

that with regard to all 13 charges of first degree sexual assault, 

Bershon compelled B.B. to submit to sexual penetration due to 

the use of coercion, and that therefore, the sexual penetration 

was without B.B.’s consent.

Given the foregoing discussion, there was sufficient evidence to support Bershon’s 13 convictions for first degree 

sexual assault. We reject Bershon’s claim to the contrary.

There Was Sufficient Evidence to Support 

Bershon’s Convictions for Intentional 

Abuse of a Vulnerable Adult.

Bershon finally claims that there was not sufficient evidence 

to support his convictions for intentional abuse of a vulnerable 

adult. He argues that the evidence does not show that B.B. was 

“sexually abused.” We determine that the evidence was sufficient to support the vulnerable adult convictions.

Bershon was convicted of intentional abuse of a vulnerable 

adult in violation of § 28-386, which provides in relevant part 

that a “person commits knowing and intentional abuse . . . 

of a vulnerable adult . . . if he or she through a knowing and 

intentional act causes or permits a vulnerable adult . . . to be: 
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(a) Physically injured; [or] (c) Sexually abused.” For purposes 

of § 28-386, “[v]ulnerable adult” is defined in Neb. Rev. Stat. 

§ 28-371 (Reissue 2016) to include, inter alia, “any person 

eighteen years of age or older who has a substantial mental 

. . . impairment,” and Neb. Rev. Stat. § 28-369 (Reissue 2016) 

defines “[s]ubstantial mental impairment” as “a substantial 

disorder of thought, mood, perception, orientation, or memory 

that grossly impairs judgment, behavior, or ability to live 

independently or provide self-care as revealed by observation, 

diagnosis, investigation, or evaluation.” In addition, “[s]exual 

abuse” is defined in Neb. Rev. Stat. § 28-367 (Reissue 2016) 

to “include sexual assault as described in section 28-319 or 

28-320 and incest as described in section 28-703.”

Bershon does not explicitly contend that there was not sufficient evidence that B.B. was a “vulnerable adult.” In this 

regard, we note that there was substantial evidence regarding 

B.B.’s intellectual disability and her inability to live independently; this evidence is sufficient to show a “substantial 

mental impairment” that grossly impaired her ability to live 

independently.

Bershon’s contention instead is that there was insufficient 

evidence that B.B. was “sexually abused.” His argument with 

regard to these vulnerable adult charges is similar to the arguments he made with regard to the convictions for first degree 

sexual assault. Because “sexual abuse” for purposes of the 

offense of intentional abuse of a vulnerable adult is defined 

to include, inter alia, first degree sexual assault as described 

in § 28-319, the question whether there is sufficient evidence 

that B.B. was sexually abused coincides with the question 

whether there was sufficient evidence of first degree sexual 

assault under § 28-319. We determined above that there was 

sufficient evidence for the jury to find that Bershon committed first degree sexual assault with regard to all 13 counts, 

including those counts related to the years for which the 

3 counts of intentional abuse of a vulnerable adult were 

charged. The same evidence which supported a finding that 
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Bershon committed first degree sexual assault also supports 

a finding that B.B. was “sexually abused” and that Bershon’s 

knowing and intentional acts caused or permitted B.B. to be 

sexually abused.

We conclude that there was sufficient evidence to support 

Bershon’s convictions for intentional abuse of a vulnerable 

adult, and we reject Bershon’s claim to the contrary.

CONCLUSION

We conclude that because Bershon failed to raise due 

process and double jeopardy issues in the district court, he 

waived those issues for appeal. We determine that there was 

sufficient evidence to support Bershon’s convictions for first 

degree sexual assault and for intentional abuse of a vulnerable adult. We therefore affirm Bershon’s convictions and 

sentences.

Affirmed.