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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 independently 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 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.

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 necessitating reversal.

5. ____: ____. A jury instruction which misstates the issues and has a tendency to confuse the jury is erroneous.

Appeal from the District Court for Morrill County: Andrea 

D. Miller, Judge. Affirmed.

Nebraska Supreme Court Online Library

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

08/12/2022 09:08 AM CDT
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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 insufficient 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 restaurant 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 elsewhere 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 sufficient 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, 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 
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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 finding 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 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, or (c) when the actor is nineteen 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 argument 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 intrusion, 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 penetration,” 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 satisfaction 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 fellated 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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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 definition 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 evidence that P.H. was mentally and physically capable of resisting 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, alternatively, 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 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 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 statutory definition of “sexual penetration,” while still extrapolating 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 assignment 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.