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Nebraska Supreme Court Advance Sheets

304 Nebraska Reports

STATE v. DADY

Cite as 304 Neb. 649

State of Nebraska, appellee, v. 

Joshua Dady, appellant.

___ N.W.2d ___

Filed December 13, 2019. No. S-18-948.

1. Jury Instructions: Judgments: Appeal and Error. Whether jury 

instructions given by a trial court are correct is a question of law. When 

dispositive issues on appeal present questions of law, an appellate court 

has an obligation to reach an independent conclusion irrespective of the 

decision of the court below.

2. Jury Instructions: Appeal and Error. Jury instructions are subject 

to the harmless error rule, and an erroneous jury instruction requires 

reversal only if the error adversely affects the substantial rights of the 

complaining party.

3. Verdicts: Appeal and Error. Harmless error review looks to the basis 

on which the trier of fact actually rested its verdict; the inquiry is not 

whether in a trial that occurred without the error a guilty verdict surely 

would have been rendered, but, rather, whether the actual guilty verdict 

rendered in the questioned trial was surely unattributable to the error.

4. 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.

5. Criminal Law: Evidence: Appeal and Error. When examining a sufficiency of the evidence claim, the relevant question for an appellate court 

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.

6. Rules of Evidence: Hearsay: Appeal and Error. Apart from rulings 

under the residual hearsay exception, an appellate court reviews for 

clear error the factual findings underpinning a trial court’s hearsay ruling and reviews de novo the court’s ultimate determination whether the 

Nebraska Supreme Court Online Library

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

01/24/2020 09:07 AM CST
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court admitted evidence over a hearsay objection or excluded evidence 

on hearsay grounds.

7. Judgments: Appeal and Error. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

8. Sexual Assault. Under Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016), 

whether the victim was incapable of consent depends upon a specific 

inquiry into the victim’s capacity, i.e., whether the victim was mentally 

or physically incapable of resisting or appraising the nature of his or 

her conduct.

9. ____. Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016) applies to a wide 

array of situations that affect a victim’s capacity, including age.

10. Jury Instructions: Evidence: Appeal and Error. When examining for 

harmless error, the court may look at a variety of factors including the 

jury instructions as a whole, the evidence presented at trial, and the closing arguments.

11. 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 the witnesses, or reweigh the evidence; such matters 

are for the finder of fact.

12. Rules of Evidence: Hearsay: Proof. Evidence is admissible under 

Neb. Rev. Stat. § 27-803(3) (Reissue 2016) when the party seeking to 

introduce the evidence demonstrates (1) that the circumstances under 

which the statements were made were such that the declarant’s purpose 

in making the statements was to assist in the provision of medical 

diagnosis or treatment and (2) that the statements were of a nature 

reasonably pertinent to medical diagnosis or treatment by a medical professional.

13. Appeal and Error. To be considered by an appellate court, an alleged 

error must be both specifically assigned and specifically argued in the 

brief of the party asserting the error.

14. Sentences. When imposing a sentence, a sentencing judge should consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, (5) past criminal record or 

record of law-abiding conduct, and (6) motivation for the offense, as 

well as (7) the nature of the offense and (8) the violence involved in 

the commission of the crime. The appropriateness of a sentence is 

necessarily a subjective judgment and includes the sentencing judge’s 

observation of the defendant’s demeanor and attitude and all the facts 

and circumstances surrounding the defendant’s life.
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STATE v. DADY

Cite as 304 Neb. 649

Appeal from the District Court for Douglas County: 

Gregory M. Schatz, Judge. Affirmed.

Thomas C. Riley, Douglas County Public Defender, Timothy 

F. Shanahan, and Abbi R. Romshek for appellant.

Douglas J. Peterson, Attorney General, and Siobhan E. Duffy 

for appelllee.

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

Papik, and Freudenberg, JJ.

Freudenberg, J.

NATURE OF CASE

Appellant was convicted of first degree sexual assault under 

Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016). Appellant was 

18 years old at the time, and the victim was 10 years old. 

Appellant was found guilty, and he now assigns several errors 

on appeal. These errors focus on several rulings by the district 

court related to the knowledge element of the crime charged 

and whether age can be a factor in a jury’s determination of 

capacity under § 28-319(1)(b). For the reasons set forth below, 

we affirm the judgment of the district court.

FACTS

Joshua Dady was charged with first degree sexual assault 

after he admitted to police that he had sex with M.J., a 10-yearold girl. While Dady was 18 years old and within 4 days of 

their meeting, Dady engaged in vaginal intercourse with M.J. 

Dady was charged under § 28-319(1)(b). Section 28-319(1) 

makes it a crime for “[a]ny person [to subject] another person 

to sexual penetration . . . (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[.]” Following 

a jury trial, Dady was convicted and sentenced to 20 to 25 

years’ imprisonment. Dady appeals.

Dady first met and talked with M.J. for approximately an 

hour after she exited a schoolbus a few blocks from her home 
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on a Thursday or Friday afternoon. M.J. testified that Dady 

told her he was 16 years old and that she told Dady she was 

10 years old.

M.J.’s stepfather saw M.J. and Dady talking and introduced 

himself and then walked M.J. into the house. When M.J.’s 

stepfather noticed Dady following everyone into the home, 

he told Dady to leave. M.J.’s stepfather also asked Dady if he 

knew how old M.J. was, and Dady said no. He then told Dady 

that M.J. was 10 years old. M.J. later encountered Dady while 

she was walking her dog. M.J. testified that they discussed 

“YouTubers” for an unknown length of time. M.J. testified she 

thought that she and Dady “hung out” again later in the day on 

a Saturday. M.J.’s mother testified that M.J. came to her on that 

Saturday and asked to go to a mall with Dady. M.J.’s mother 

told M.J. she could not go to the mall with Dady because she 

did not know him.

On the morning of Sunday, August 20, 2017, M.J. met up 

with Dady for about an hour, then went home for lunch and to 

clean her room. After lunch, M.J. returned to Dady’s house and 

sat on the curb. After approximately 5 minutes, Dady invited 

M.J. to sit by a fence in the yard. Dady asked M.J. if she had a 

boyfriend and then suggested to M.J. that they should have sex. 

M.J. testified that she had originally said no, but then agreed 

after Dady offered to give her an “MP3 player.” M.J. and Dady 

began kissing. Dady then pulled down his shorts and put a condom on. M.J. testified that she knew what a condom was but had 

not seen one before and did not know what Dady meant when 

he said, “‘We can’t let this go to waste now.’” Dady then pulled 

down M.J.’s pants and pulled M.J. on top of him. M.J. testified 

that Dady’s pulling her on top of him was not forced. M.J.’s 

statements to medical personnel and her testimony at trial were 

that she knew what sex was and that she willingly engaged in 

sex with Dady.

Neighbors saw M.J. pull down her pants and attempt to sit 

on Dady’s lap. They ran outside and confronted M.J. and Dady. 

M.J. and Dady both stood up and pulled their pants up as the 

neighbors approached. M.J. testified that she asked Dady to 
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“‘[p]romise not to tell’” what happened. The neighbors told 

M.J.’s stepfather and then informed Dady’s foster father of what 

they had seen. The neighbors testified they had seen Dady and 

M.J. “hanging out” earlier in the day when M.J. was riding 

around the neighborhood on a “bike [with] flowers on it.”

M.J.’s stepfather called M.J. home. When M.J. arrived 

home, she went to her room and would not speak with either 

her stepfather or her mother. M.J.’s mother then called the 911 

emergency dispatch service. M.J. was taken to a child advocacy center and then to a hospital to be examined by a sexual 

assault nurse.

Police, responding to the 911 call, interviewed M.J.’s mother 

and then went to Dady’s foster home. Dady and his foster 

father came outside and spoke with the police. Dady admitted to police that he had sexually penetrated M.J.’s vagina and 

that he was 18 years old. The police placed Dady under arrest, 

and he was taken to a police station for an interview. Police 

obtained consent from Dady’s foster father to search the yard 

and the home. Police found a condom wrapper in the yard and 

a used condom in a trash can in Dady’s bedroom.

During the interview with police, Dady claimed M.J. told 

him that she was 16 or 17 years old and that she was going 

to be a freshman in high school. Dady initially denied that his 

penis penetrated M.J.’s vagina, but later stated that a small 

portion of his penis went inside M.J.’s vagina. Dady also told 

police that he put his finger in M.J.’s vagina, but that she told 

him to stop because it was hurting her. Dady also told police 

that he put his penis in M.J.’s mouth for a “millisecond.”

Dady said M.J. told him on the day of the incident that her 

mother says she is 10 years old, but that she is a freshman in 

high school and was about to turn 16 years old. At the end of 

the interview, when asked how old he thought M.J. looked, 

Dady admitted she looked 10 or 11 years old.

Susan Kelly, an emergency room pediatrician, testified concerning M.J.’s visit to the emergency room on the night of the 

incident. Kelly testified that M.J. or M.J.’s mother relayed that 

M.J. had been diagnosed with attention deficit hyperactivity 
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disorder (ADHD), oppositional defiant disorder (ODD), and 

disruptive mood dysregulation disorder (DMDD). This was 

done while Kelly was ascertaining M.J.’s medical history for 

the purpose of treating her in the emergency room. Dady 

objected on the ground of hearsay and was overruled.

Kelly explained the various stages of cognitive development 

of children and testified that a normal 10-year-old’s brain has not 

fully developed the ability to assess risk and control impulses. 

Kelly further testified as to how diagnoses of ADHD and ODD 

can affect a person’s ability to control impulses. On crossexamination, Kelly testified that her impressions of M.J.’s ability 

to understand the nature of sex were based upon her time spent 

with M.J., M.J.’s past diagnoses, and the general categorization 

of a 10-year-old’s capacity. When asked to give further support 

for her conclusion that M.J. was not capable of appraising the 

nature of sex, Kelly testified that M.J. did not know when her 

last period occurred. Further, Kelly testified that when she asked 

M.J. if a condom was used in the incident, M.J. responded, “‘I 

think so.’”

Additional evidence of M.J.’s mental health diagnoses was 

presented through the testimony of the forensic interviewer 

who saw M.J. at the child advocacy center. She testified that 

ADHD, ODD, and DMDD can affect emotional stability and 

impulse control. She indicated the severity of each of these 

conditions can vary based on the individual. She admitted that 

she is not licensed to diagnose these conditions; however, she 

stated that it is important for an interviewer to know a child’s 

mental health diagnoses in order to tailor the interview to the 

child. She testified that M.J. appeared to be a developmentally 

normal 10-year-old and indicated that no formal testing of cognitive ability was done.

M.J.’s mother testified that M.J. has had behavioral and 

mental health issues since she was approximately 4 years old. 

M.J.’s mother testified that M.J. had been diagnosed with 

ADHD, ODD, and DMDD. Dady objected on grounds of foundation and hearsay and was overruled. On cross-examination, 
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Dady elicited testimony from M.J.’s mother that the diagnoses 

had come from M.J.’s doctor. Dady made a motion to strike 

M.J.’s mother’s testimony on hearsay and Confrontation Clause 

grounds. M.J.’s mother also testified that M.J.’s mental health 

problems have resulted in M.J.’s hospitalization more than 10 

times. M.J.’s mother testified these hospitalizations normally 

occur after M.J. becomes physically and emotionally escalated 

or when M.J. threatens to harm herself.

M.J.’s mother testified that she had age-appropriate conversations about sex with M.J. M.J.’s mother expressed that prior 

to the incident, M.J. understood the physical aspects of what 

sex is. M.J.’s mother explained that some of the conversations were prompted by M.J.’s being accused of inappropriate 

sexual touching of her half sister. The incidents with her half 

sister resulted in M.J.’s being hospitalized and then receiving 

treatment at a residential treatment facility for approximately 

5 months.

At the close of the State’s case, Dady made a motion to dismiss. Dady claimed the State failed to prove that M.J. lacked 

capacity and that Dady knew or had reason to know M.J. 

lacked capacity under the statute. The court denied the motion.

At the conclusion of evidence, Dady objected to jury instruction No. 6 proposed by the court. Dady submitted an alternate 

instruction based on the definition of mental impairment taken 

from In re Interest of K.M.1 Instruction No. 6 provided in part: 

“‘Mentally Incapable’ means that because of the victim’s age 

or mental impairment, the victim was incapable of resisting or 

appraising the nature of her sexual conduct. ‘Mental Impairment’ 

means the victim’s impairment was so severe that she lacked the 

capacity to consent to sexual conduct with the Defendant.”

Dady’s proposed jury instruction stated in relevant part:

“Mentally or physically incapable of resisting or 

appraising the nature of her conduct” shall mean a significant abnormality on the part of the victim such as 

1 In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (2018).
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severe intoxication or other substantial mental or physical impairment. In order for a mental impairment to 

be substantial, it must be severe; a person in this category is treated as equivalent to a severely intoxicated 

or an unconscious person. Not every mental challenge or 

impairment is so severe that the person lacks the capacity 

to resist or appraise the nature of her conduct.

The court gave its proposed instruction No. 6. Other instructions, given without objection, provided that the jury must 

apply the law in the instructions and that no one instruction 

contains all of the law applicable to this case. A further instruction provided the specific elements of the charge using the 

language of § 28-319(1)(b).

After the jury returned a guilty verdict, Dady made a motion 

for a judgment notwithstanding the verdict or, in the alternative, for a new trial. Dady provided several arguments in support of the motion, only two of which were assigned on appeal. 

First, Dady argued that the jury instructions were incorrect and 

prejudicial. Second, Dady argued that there were irregularities 

in the proceedings of the court, the prosecuting attorney, and 

the witnesses for the State prejudicial to his rights. The alleged 

trial irregularities related to the court’s change in its ruling on 

whether Dady could present evidence under Neb. Rev. Stat. 

§ 27-412 (Reissue 2016) of three sexual encounters M.J. had 

with other people.

Dady had provided notice before trial that he intended 

to use evidence under § 27-412 to demonstrate M.J.’s prior 

knowledge and sexual activities. Specifically, Dady wanted to 

question M.J. concerning certain episodes of sexual conduct 

between M.J. and her half sister, between M.J. and her cousin, 

and between M.J. and her brother. The encounters with the half 

sister occurred before the events with Dady, the encounter with 

her cousin occurred after the incident with Dady, and the timing of the encounter with her brother was unknown. The State 

filed a motion in limine to exclude evidence of the encounters, 

asserting that the encounters were not relevant.
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The court initially determined that Dady would not be 

allowed to question M.J. concerning the three encounters. 

However, the court did allow Dady to question M.J.’s mother 

about one hospitalization and whether it occurred because of an 

incident between M.J. and her half sister.

As the trial progressed and the court learned more about the 

nature of the case, the court reconsidered its initial ruling on 

the motion in limine. Before cross-examination of M.J. began, 

the court reversed its prior decision and indicated to both parties that it was going to allow some questioning about M.J.’s 

previous sexual encounters because such evidence could demonstrate M.J.’s ability to appraise the nature of her conduct. 

After the cross-examination of M.J. began, the court took a 

recess, dismissed the jury, and reversed its decision again, back 

to its original position. The court specified that it would allow 

questioning which could tend to prove M.J. knew what vaginal 

intercourse is or what sexual arousal is, but would not allow 

the further questioning of M.J. about the past sexual encounters. The court reasoned that the information to be obtained 

from questioning about the encounters and the subsequent hospitalizations was not relevant.

The court denied Dady’s posttrial motion for judgment 

notwithstanding the verdict or for a new trial. At the sentencing hearing, the judge took into account Dady’s unfortunate 

upbringing, his maturity level, and his previous criminal history. The court noted that Dady had already received counseling and education concerning appropriate sexual conduct 

before the incident in this case occurred. The court noted 

that probation and education did not deter Dady. The court 

explained the serious nature of the offense and took into consideration the likelihood that Dady would reoffend. The court 

sentenced Dady to 20 to 25 years’ imprisonment.

ASSIGNMENTS OF ERROR

Dady asserts, renumbered and rephrased, that the trial court 

erred by (1) giving a jury instruction that incorrectly stated 

the law; (2) failing to give Dady’s proposed jury instruction; 
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(3) failing to find the evidence presented at trial was insufficient to sustain a guilty verdict; (4) admitting evidence 

that M.J. was diagnosed with ADHD, ODD, and DMDD; (5) 

excluding evidence of M.J.’s other sexual conduct; (6) denying Dady’s motion for a new trial; and (7) imposing an excessive sentence.

STANDARD OF REVIEW

[1] Whether jury instructions given by a trial court are correct is a question of law. When dispositive issues on appeal 

present questions of law, an appellate court has an obligation 

to reach an independent conclusion irrespective of the decision 

of the court below.2

[2] Jury instructions are subject to the harmless error rule, 

and an erroneous jury instruction requires reversal only if the 

error adversely affects the substantial rights of the complaining party.3

[3] Harmless error review looks to the basis on which 

the trier of fact actually rested its verdict; the inquiry is not 

whether in a trial that occurred without the error a guilty verdict surely would have been rendered, but, rather, whether the 

actual guilty verdict rendered in the questioned trial was surely 

unattributable to the error.4

[4] 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.5

[5] When examining a sufficiency of the evidence claim, 

the relevant question for an appellate court is whether, after 

2 State v. McCurry, 296 Neb. 40, 891 N.W.2d 663 (2017).

3 Rodriguez v. Surgical Assocs., 298 Neb. 573, 905 N.W.2d 247 (2018).

4 State v. Huerta, 26 Neb. App. 170, 917 N.W.2d 175 (2018).

5 State v. Mueller, 301 Neb. 778, 920 N.W.2d 424 (2018), modified on 

denial of rehearing 302 Neb. 51, 921 N.W.2d 584 (2019).
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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.6

[6] Apart from rulings under the residual hearsay exception, 

an appellate court reviews for clear error the factual findings 

underpinning a trial court’s hearsay ruling and reviews de novo 

the court’s ultimate determination whether the court admitted 

evidence over a hearsay objection or excluded evidence on 

hearsay grounds.7

[7] Evidentiary questions committed to the discretion of the 

trial judge,8 orders denying a motion for new trial,9 and claims 

of excessive sentencing10 are all reviewed for abuse of discretion. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable 

or if its action is clearly against justice or conscience, reason, 

and evidence.11

ANALYSIS

Dady asserts it was reversible error for the district court to 

give instruction No. 6 and fail to give his proposed instruction. Dady asserts the evidence presented at trial failed to 

prove that M.J. suffered from a mental impairment and that 

Dady knew of M.J.’s mental impairment. Dady also asserts 

that the testimony of M.J.’s mental health diagnoses was 

inadmissible hearsay. Dady argues that he was deprived of a 

fundamentally fair trial when the court refused to allow him 

to elicit testimony of M.J.’s previous hospitalizations and to 

link the hospitalizations to M.J.’s previous sexual encounters. Lastly, Dady asserts that the trial court did not properly 

6 See State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).

7 State v. Mora, 298 Neb. 185, 903 N.W.2d 244 (2017).

8 See State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).

9 Briggs, supra note 8.

10 See State v. Erickson, 281 Neb. 31, 793 N.W.2d 155 (2011).

11 State v. Gibson, 302 Neb. 833, 925 N.W.2d 678 (2019).
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weigh several factors, including Dady’s social background 

and desire for rehabilitation, when imposing his sentence. As 

will be explained below, we find the court erred in including the ambiguous phrase “because of the victim’s age” in 

instruction No. 6 and in overruling Dady’s hearsay objection 

to the testimony of M.J.’s mother about M.J.’s mental health 

diagnoses. However, we find both errors to be harmless. 

M.J.’s mother’s testimony was cumulative to Kelly’s testimony, and the ambiguity of instruction No. 6 was clarified 

by a combination of the jury instructions’ being taken as a 

whole and the manner of the State’s presentation of its case 

and closing arguments.

Jury Instructions

Dady asserts that instruction No. 6 misstates the law because 

age is not a permissible consideration under § 28-319(1)(b) 

in determining whether a victim was mentally or physically 

incapable of resisting or appraising the nature of his or her 

conduct. Alternatively, Dady asserts that if age is a permissible consideration under § 28-319(1)(b), instruction No. 6 

was misleading because it indicated that based upon a simple 

determination that M.J. was 10 years old, the jury could find 

M.J. mentally or physically incapable of resisting or appraising the nature of her conduct. Dady argues that his proposed 

instruction should have been given instead because it would 

have properly informed the jury that “mentally or physically 

incapable of resisting or appraising the nature of . . . her conduct” under § 28-319(1)(b) requires the jury to find that M.J. 

had a significant abnormality.

We disagree with Dady’s argument that by omitting any 

explicit reference to age in § 28-319(1)(b), while specifying age in the statutory rape provision of subsection (1)(c), 

the Legislature clearly indicated that age is not a permissible consideration in determining whether subsection (1)(b) 

was violated. We recognize that other states have statutory 

rape laws directed at persons near the age of majority who 
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sexually prey on younger children.12 Nebraska does not. The 

only statute relevant to such scenario is § 28-319(1)(b). The 

statutory rape provisions of § 28-319(1)(c), and of other jurisdictions addressing older individuals’ preying upon children, 

are distinguishable from § 28-319(1)(b) insofar as the victim 

of the specified age is conclusively regarded under such 

statutes as incapable of giving consent to the sexual act.13

By specifying age in subsection (1)(c) and not in subsection 

(1)(b) of § 28-319, the Legislature was making a distinction 

between statutory rape under subsection (1)(c) and a violation 

of subsection (1)(b) requiring an individualized inquiry into 

the victim’s capacity. Section 28-319(1)(b) does not create a 

statutory presumption based on age that the victim is incapable of consent.

[8,9] It does not follow, however, that age is irrelevant to 

determining a victim’s capacity for purposes of § 28-319(1)(b). 

Under § 28-319(1)(b), whether the victim was incapable of consent depends upon a specific inquiry into the victim’s capacity, 

i.e., whether the victim was mentally or physically incapable 

of resisting or appraising the nature of his or her conduct. We 

have long held that § 28-319(1)(b) applies to a wide array of 

situations that affect a victim’s capacity, including age.14

Thus, while we would agree with Dady’s contention that 

in charges brought under § 28-319(1)(b), a jury cannot find 

inability to consent in a manner similar to such a finding under 

statutory rape provisions based exclusively on age, we disagree 

with Dady’s contention that a victim’s age is an irrelevant 

consideration in determining whether a specific victim was 

mentally or physically incapable of resisting or appraising the 

nature of his or her conduct. The jury is permitted to conclude 

12 See, e.g., Colo. Rev. Stat. Ann. § 18-3-402(1)(d) (West Cum. Supp. 2018) 

(victim less than 15 years old with 4-year age gap between victim and 

perpetrator).

13 See George v. State, 61 Neb. 669, 85 N.W. 840 (1901).

14 See State v. Collins, 7 Neb. App. 187, 583 N.W.2d 341 (1998).
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the victim was mentally or physically incapable of resisting 

or appraising the nature of his or her conduct based upon evidence that a child of the victim’s age ordinarily lacks sufficient 

brain development to have such capacity and that the victim 

was developmentally normal for his or her age.

But we agree with Dady that instruction No. 6 was potentially misleading as to whether the jury could find inability to consent in a manner similar to such a finding under 

statutory rape provisions based on age. Instruction No. 6 

explained to the jury the respective definitions of the terms 

“mentally incapable” and “mental impairment.” “Mentally 

incapable” was correctly defined inasmuch as it described a 

victim “incapable of resisting or appraising the nature of her 

sexual conduct.” “Mental impairment” was correctly defined 

as a “victim’s impairment . . . so severe that she lacked the 

capacity to consent to sexual conduct with the Defendant.” 

The problem is that the definition of “mentally incapable” 

was prefaced with the phrase “because of the victim’s age or 

mental impairment.”

We disapprove of this broad “because of the victim’s age” 

phrasing. The phrase “because of the victim’s age” is ambiguous as to whether age can be the sole basis for a finding that 

the victim was mentally incapable, without an individualized 

assessment of the victim’s maturity. The definition of “mentally incapable” could have been excluded from the court’s 

instructions, as the language of § 28-319(1)(b) is sufficiently 

clear that a definitional instruction would not normally be necessary. Because instruction No. 6 was ambiguous and capable 

of misleading the jury, it was erroneous.

[10] But this does not end our inquiry. Alleged errors in a 

jury instruction are examined using a two-step process.15 First, 

the court reviews the case based on the errors assigned and 

argued, or it may find plain error. Second, when an error is 

15 See, Rodriguez, supra note 3; State v. Botts, 26 Neb. App. 544, 921 

N.W.2d 151 (2018).
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identified, the court considers whether the error was harmless 

or prejudicial.16 Jury instructions are subject to the harmless 

error rule, and an erroneous jury instruction requires reversal 

only if the error adversely affects the substantial rights of 

the complaining party.17 When examining for harmless error, 

the court may look at a variety of factors including the jury 

instructions as a whole, the evidence presented at trial, and the 

closing arguments.18

We conclude that the potentially misleading ambiguity of 

the phrase “because of the victim’s age” in instruction No. 

6 did not in fact mislead the jury. The jury’s verdict was 

surely unattributable to this erroneous instruction, because 

the instructions taken as a whole, combined with the evidence 

and arguments presented at trial, clarified the ambiguity of 

“because of the victim’s age” such that the jury understood 

“age” in this context to be a subjective review of M.J.’s developmental age.

Other instructions correctly provided that the jury must 

apply the law in the instructions and that no one instruction 

contains all of the law applicable to this case. One correctly 

provided the specific elements of the charge using the language 

of § 28-319(1)(b), instructing the jury that it could not find 

Dady guilty without determining beyond a reasonable doubt 

that he knew or should have known that M.J. was mentally or 

physically incapable of resisting or appraising the nature of 

her conduct. Instruction No. 6 also correctly indicated that the 

inquiry was victim specific.

To the extent that the ambiguity of the “because of the victim’s age” phrasing was not fully clarified by the surrounding 

16 See, Rodriguez, supra note 3; Botts, supra note 15.

17 Rodriguez, supra note 3.

18 See, State v. Smith, 302 Neb. 154, 922 N.W.2d 444 (2019); Nguyen v. 

Rezac, 256 Neb. 458, 590 N.W.2d 375 (1999); Huerta, supra note 4; State 

v. Beamon, 336 Wis. 2d 438, 804 N.W.2d 706 (Wis. App. 2011); Johnson 

v. State, 94 So. 3d 1209 (Miss. App. 2011).
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instructions alone, it was clarified by the State’s theory of 

the case, the evidence, and the closing arguments. The State 

presented extensive evidence linking age and normal brain 

development to M.J.’s specific cognitive abilities. Kelly, the 

treating emergency room physician, opined that M.J. was incapable of appraising the nature of sexual conduct. Kelly based 

this opinion on her understanding of normal child cognitive 

development and on the time she spent with M.J. The State 

thus presented unrefuted evidence that a normal 10-year-old 

child’s level of cognitive development renders the child unable 

to appraise the nature of sexual conduct and that M.J. appeared 

to be a normal 10-year-old. Furthermore, the jurors were able 

to see M.J. testify and draw their own conclusions about M.J.’s 

mental capabilities. The court may consider the facts of the 

case when determining whether a jury instruction was confusing or misleading.19

Where a potential ambiguity in an instruction exists, the 

prosecutor may assist the jury in resolving such ambiguity during closing arguments.20 The State went step by step 

during closing arguments through the elements of the crime 

charged, explaining what “age” in instruction No. 6 meant. 

The prosecution asked the jury when determining mental 

and physical capacity to consider the evidence presented at 

trial that M.J. appeared to be a normal 10-year-old and that 

a normally developed 10-year-old brain does not have the 

capacity to appraise the nature of sexual conduct. The State 

made it clear that the reference “because of the victim’s age” 

in instruction No. 6 was a case-specific inquiry based on the 

evidence presented.

Viewing instruction No. 6 in context, the jury had a clear 

and correct understanding of how age related to the question 

of M.J.’s mental capability of resisting or appraising the nature 

19 See Nguyen, supra note 18.

20 See, Middleton v. McNeil, 541 U.S. 433, 124 S. Ct. 1830, 158 L. Ed. 2d 

701 (2004); Huerta, supra note 4.
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of her conduct. When the instructions as a whole are combined 

with the body of evidence on the record and the clarification 

provided by the prosecution in the closing arguments, the 

jury was not misled by the ambiguous phrasing of instruction 

No. 6. Rather, the jury properly understood that age was a consideration in determining M.J.’s level of mental development 

or developmental age. When considering the instructions as a 

whole, the evidence presented, and the clarification provided 

in closing arguments, we find the erroneous jury instruction to 

be harmless.

Dady also contends that his proposed instruction should 

have been given instead of instruction No. 6.

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.”21

Dady’s proposed jury instruction provided in relevant part:

“Mentally or physically incapable of resisting or 

appraising the nature of her conduct” shall mean a significant abnormality on the part of the victim such as 

severe intoxication or other substantial mental or physical impairment. In order for a mental impairment to 

be substantial, it must be severe; a person in this category is treated as equivalent to a severely intoxicated 

or an unconscious person. Not every mental challenge or 

impairment is so severe that the person lacks the capacity 

to resist or appraise the nature of her conduct.

Dady’s proposed instruction was based on In re Interest of 

K.M., where we said:

To render an individual incapable to consent to sexual 

conduct, a mental impairment must be severe. A person 

in this category is treated as equivalent to a severely 

21 Mueller, supra note 5, 301 Neb. at 789, 920 N.W.2d at 434.
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intoxicated or an unconscious person. Thus, not every 

mental challenge or impairment is so severe that the person lacks the capacity to consent. We have said lack-ofcapacity sexual assault under § 28-319(1)(b) requires on 

the part of the victim “a significant abnormality, such as 

severe intoxication or other substantial mental or physical impairment.”22

This passage from In re Interest of K.M. is one way of explaining the concept of mental incapacity as warranted from the 

facts in that case, which involved an alleged mental impairment. However, as we have already illustrated, In re Interest 

of K.M. should not be construed as exhaustively defining every 

situation to which § 28-319(1)(b) could be applied. A victim 

can be incapable of consent without suffering from a “mental 

impairment.”23

Dady’s proposed instruction was not a correct recitation of 

our holding from In re Interest of K.M., because it incorrectly 

indicated that “[m]entally or physically incapable” is limited to 

a “significant abnormality” constituting a “substantial mental 

or physical impairment.” A child can be incapable of resisting 

or appraising the nature of his or her conduct without suffering from an “abnormality” or “substantial mental or physical 

impairment.” The court did not err in denying Dady’s proposed 

instruction, because, as applied to the facts of this matter, it 

was not a correct statement of the law.

Sufficiency of Evidence

In his challenge to the sufficiency of the evidence, Dady 

argues that there was insufficient evidence to support a finding that M.J. suffered from a “mental impairment.”24 He does 

not contest the sufficiency of the evidence to support M.J.’s 

22 In re Interest of K.M., supra note 1, 299 Neb. at 645, 910 N.W.2d at 89 

(emphasis supplied).

23 See id.

24 Brief for appellant at 22.
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inability to consent by virtue of being mentally or physically 

incapable of resisting or appraising the nature of her conduct 

for any other reason. Dady also challenges the sufficiency of 

the evidence to support the necessary element that he knew 

or should have known that M.J., for whatever reason, was 

mentally or physically incapable of resisting or appraising the 

nature of her conduct.

[11] 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 the witnesses, or reweigh the evidence; 

such matters are for the finder of fact.25 The relevant question 

for an appellate court 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.26 And when there are alternative theories of guilt presented to the jury, we will affirm the 

verdict if the evidence is sufficient to support any alternative 

theory presented.27

Because we find the evidence sufficient to support a determination that M.J. was incapable of consent by virtue of her 

stage of development, we need not consider whether the evidence was sufficient to support the State’s alternative theory 

that by virtue of M.J.’s diagnoses, she suffered a “mental 

impairment.”28 As stated, expert testimony explained the brain 

capacities and reasoning capabilities of a normal 10-year-old. 

Kelly testified that a normal 10-year-old does not have the 

capacity to appraise the nature of sexual conduct. Kelly then 

drew on her understanding of child brain development and 

25 State v. Thomas, 303 Neb. 964, 932 N.W.2d 713 (2019).

26 Id.

27 See McCurdy, supra note 6.

28 See In re Interest of K.M., supra note 1, 299 Neb. at 645, 910 N.W.2d at 

89. Accord McCurdy, supra note 6.
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her direct interactions with M.J. when she opined that M.J. 

could not appraise the nature of sex. The jury was also able 

to observe M.J. and draw its own conclusions about M.J.’s 

capabilities, when she testified approximately 9 months after 

the incident.

We also find the evidence sufficient for the jury to conclude 

that Dady knew M.J. was incapable of resisting or appraising the nature of her conduct when she agreed to have sex 

with someone nearly twice her age in exchange for an “MP3 

player.” There was evidence presented that M.J. acted as a 

normal child when she and Dady spent time together. Prior 

to the incident, M.J.’s stepfather had a specific conversation 

with Dady explaining that M.J. was 10 years old. M.J. rode 

around the neighborhood on a “bike [with] flowers on it.” 

When Dady wanted M.J. to come to the mall with him, M.J. 

said she would have to go ask her mother. On another occasion, M.J. had to cut short her visit with Dady in order to go 

home to eat lunch and to clean her room. Such facts indicate 

Dady had sufficient time to interact with M.J. and observe 

M.J.’s level of maturity and understanding. And when Dady 

was interviewed by law enforcement, he repeatedly emphasized that M.J. claimed to be older, thereby indicating he had 

some knowledge that M.J.’s age was a factor for whether she 

had the capacity to appraise the nature of her conduct. By the 

end of the police interview, Dady admitted M.J. appeared to 

be around 10 or 11 years old.

When viewing the evidence in the light most favorable to 

the prosecution, a rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt.29

A rational jury could conclude that M.J. was incapable of 

appraising the nature of her conduct and that Dady knew 

or should have known that. We find no merit to Dady’s 

arguments that the evidence was insufficient to support the 

jury’s verdict.

29 McCurdy, supra note 6.
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Hearsay

[12] Dady contends that the testimony by M.J.’s mother and 

by Kelly concerning M.J.’s diagnoses was hearsay. However, 

the discussion between M.J., M.J.’s mother, and Kelly concerning M.J.’s past diagnoses falls squarely within Neb. Rev. Stat. 

§ 27-803(3) (Reissue 2016) as a statement describing medical 

history. Evidence is admissible under § 27-803(3) when the 

party seeking to introduce the evidence demonstrates

(1) that the circumstances under which the statements 

were made were such that the declarant’s purpose in making the statements was to assist in the provision of medical diagnosis or treatment and (2) that the statements were 

of a nature reasonably pertinent to medical diagnosis or 

treatment by a medical professional.”30

Although Kelly did not personally diagnose M.J., she testified that she learned of the diagnoses while doing a patient 

interview for the purpose of treating M.J. during her visit to the 

emergency room. She further testified that obtaining a patient 

history is an important part of her job and that she attempts to 

get a medical history from every patient she treats. The testimony of Kelly satisfies the requirements for evidence to be 

admissible under § 27-803(3).

[13] Although a Confrontation Clause objection was made 

during the motion to strike, the objection was not asserted 

or argued on appeal. To be considered by an appellate court, 

an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error.31

Furthermore, the motion to strike was made only in relation to 

M.J.’s mother’s testimony, and no Confrontation Clause objection was raised as to Kelly’s testimony. The court did not err 

in admitting Kelly’s testimony of M.J.’s mental health diagnoses over Dady’s hearsay objection. M.J’s mother’s testimony 

regarding M.J.’s diagnoses was also hearsay, but did not fall 

30 Mora, supra note 7, 298 Neb. at 193-94, 903 N.W.2d at 253.

31 Anderson v. Babbe, ante p. 186, 933 N.W.2d 813 (2019).
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into a hearsay exception. However, the testimony of M.J.’s 

mother was cumulative of Kelly’s admissible statements and 

thus qualifies as harmless error.32

Exclusion of § 27-412 

Evidence

Dady asserts that his Sixth Amendment rights were violated 

by his being prevented from cross-examining M.J. concerning 

her other sexual encounters. Dady asserts that M.J.’s previous 

sexual behavior is relevant to show that she comprehended 

the nature of her sexual conduct. Evidence under § 27-412 

should be admitted if it is of sufficient relevance to establish that the victim had prior knowledge of the same kind of 

sexual activities of which the defendant is accused.33 Where 

the Nebraska Evidence Rules commit the evidentiary question 

at issue to the discretion of the trial court, an appellate court 

reviews the admissibility of evidence for an abuse of discretion. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreasonable 

or if its action is clearly against justice or conscience, reason, 

and evidence.34

In its motion in limine, the State argued that the evidence 

put forward by Dady was not relevant to the case at hand 

because the other encounters did not involve sexual intercourse. Furthermore, one of the encounters occurred after the 

incident with Dady, and the timing of one of the other two 

encounters was also disputed. The State argued that to the 

extent the other encounters did not involve intercourse and 

occurred after the incident with Dady, they were not relevant 

to show that M.J. could appraise the nature of sexual conduct 

at the time of the incident.

32 See State v. Hood, 301 Neb. 207, 917 N.W.2d 880 (2018).

33 See State v. Earl, 252 Neb. 127, 560 N.W.2d 491 (1997).

34 See Briggs, supra note 8.
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We have previously held such differences to be enough to 

warrant the exclusion of prior encounters.35 In State v. Earl,

36

the defendant wanted to enter evidence of the 6-year-old victim’s previous sexual conduct to show that the victim had 

an alternate source for knowledge about sex acts. The victim 

had had an encounter with two of his similarly aged cousins. 

During that encounter, the victim and his female cousins 

played house and lay on each other naked. The encounter 

between the victim and the defendant in State v. Earl involved 

a male-on-male assault that included fellatio. In considering 

the defendant’s request under the previous rape shield statute, 

Neb. Rev. Stat. § 28-321 (Reissue 1995), the court concluded 

the incident involving the victim and his cousins was too different to be relevant in the defendant’s case.37

In the present case, one of the encounters clearly occurred 

after the incident with Dady and the second encounter’s timing is undetermined. This supports the ruling that the proffered 

evidence was irrelevant to showing that M.J. could appraise 

the nature of sexual intercourse at the time of the incident with 

Dady. Similarly to the comparison in State v. Earl, the proffered evidence of M.J.’s past encounters is categorically different from the encounter with Dady. M.J.’s previous encounters 

involved sexual touching of similarly aged children. M.J.’s 

encounter with Dady was a 10-year-old having sexual intercourse with an 18-year-old.

The trial court’s ruling did not prevent Dady from presenting 

an effective defense; nor did it violate Dady’s constitutional 

rights. Dady was allowed to cross-examine M.J.’s mother concerning the hospitalization related to the one encounter that 

occurred before the events of the present case. On these facts, 

35 See, State v. Sanchez, 257 Neb. 291, 597 N.W.2d 361 (1999); Earl, supra

note 33.

36 Earl, supra note 33.

37 See id.
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we cannot say that the trial court’s ruling was unreasonable or 

untenable, nor that it was clearly against justice or conscience, 

reason, and evidence. The district court’s ruling on the admissibility of M.J.’s other sexual encounters was not an abuse 

of discretion.

Having addressed the propriety of the court’s final ruling 

regarding the admissibility of M.J.’s other sexual encounters, 

we address Dady’s assertion that there was an irregularity in 

the proceedings of the court which prevented him from having 

a fair trial.38 Dady argues that when the district court reversed 

its decision and informed defense counsel it would allow 

some of the § 27-412 evidence initially excluded, the defense 

adjusted its trial strategy to make use of this evidence.

Dady began questioning M.J. about certain events and was 

stopped during the cross-examination. The district court then 

declared it was reversing its decision again. Dady contends that 

the adjustment of trial strategy resulted in defense counsel’s 

eliciting testimony about the hospitalizations in order to attribute the hospitalizations to M.J.’s previous sexual encounters 

rather than the mental-health-related reasons given by M.J.’s 

mother at trial.

The evidence proposed in the offer of proof was intended 

to provide the jury with an alternate explanation for two hospitalizations. Dady had already been able to offer such an 

explanation for one of those hospitalizations through the crossexamination of M.J.’s mother. The other sexual encounter that 

resulted in a hospitalization occurred after the incident with 

Dady. As explained above, such evidence is not relevant in 

establishing what M.J. knew about sex at the time of the incident. Nor is it relevant to show the state of M.J.’s mental health 

at the time of the incident.

The initial ruling on the evidence was based on Dady’s 

pretrial notice under § 27-412 and the State’s corresponding 

motion in limine. A motion in limine is a procedural step by 

38 See Neb. Rev. Stat. § 29-2101 (Reissue 2016).
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which a court makes a preliminary determination; it is not a 

final order.39 A change in a ruling on admissibility is not de 

facto unfair, and the alleged change in trial strategy is not 

supported in the record. Defense counsel began questioning 

M.J.’s mother about the hospitalizations before any change 

from the pretrial ruling occurred. Therefore, no irregularity which could be considered unfair is demonstrable on 

these facts.

Having addressed all of the grounds for Dady’s motion for 

a new trial, we affirm the district court’s denial of the motion 

for a new trial.

Excessive Sentence

[14] The sentence ordered is within the statutory guidelines and will not be altered unless there was an abuse of 

discretion.40

When imposing a sentence, a sentencing judge should 

consider the defendant’s (1) age, (2) mentality, (3) education and experience, (4) social and cultural background, 

(5) past criminal record or record of law-abiding conduct, 

and (6) motivation for the offense, as well as (7) the 

nature of the offense and (8) the violence involved in the 

commission of the crime. The appropriateness of a sentence is necessarily a subjective judgment and includes 

the sentencing judge’s observation of the defendant’s 

demeanor and attitude and all the facts and circumstances 

surrounding the defendant’s life.41

Dady asserts that the district court abused its discretion by not 

considering all of the required factors. The record shows, however, that the district court weighed the correct factors related 

to Dady’s age, family background, mentality, criminal history, unsuccessful discharge from probation related to juvenile 

39 See Golnick v. Callender, 290 Neb. 395, 860 N.W.2d 180 (2015).

40 See State v. Erickson, supra note 10.

41 State v. Chairez, 302 Neb. 731, 740, 924 N.W.2d 725, 732 (2019).
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charges, lack of effort in pursuing education and treatment 

while on probation, and potential to reoffend. Such consideration is not an abuse of discretion. Consequently, we affirm the 

district court’s sentence.

CONCLUSION

For the foregoing reasons, the judgment of the district court 

is affirmed.

Affirmed.