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316 Nebraska Reports

STATE V. NPIMNEE

Cite as 316 Neb. 1

State of Nebraska, appellee, v. 

Hope T. Npimnee, appellant.

___ N.W.2d ___

Filed February 23, 2024. No. S-23-147.

1. 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.

2. ____: ____. 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.

3. ____: ____. Failure to object to a jury instruction after it has been submitted to counsel for review precludes raising an objection on appeal 

absent plain error indicative of a probable miscarriage of justice.

4. Convictions: Evidence: Appeal and Error. In reviewing a criminal 

conviction for sufficiency of the evidence, 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.

5. Effectiveness of Counsel: Constitutional Law: Statutes: Records: 

Appeal and Error. Whether a claim of ineffective assistance of counsel 

can be determined on direct appeal presents a question of law, which 

turns upon the sufficiency of the record to address the claim without an 

evidentiary hearing or whether the claim rests solely on the interpretation of a statute or constitutional requirement.

6. Effectiveness of Counsel: Appeal and Error. In reviewing a claim of 

ineffective assistance of counsel on direct appeal, an appellate court 

determines as a matter of law whether the record conclusively shows 

Nebraska Supreme Court Online Library

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

02/23/2024 09:15 AM CST
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that (1) a defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel’s alleged deficient 

performance.

7. Criminal Law: Evidence: Jurors. The “without consent” theory and 

the “incapable of resisting” theory are two distinct ways of committing 

the same offense, and thus, where there is evidence of both theories, a 

juror may determine guilt based on either.

8. Impeachment: Prior Statements: Evidence: Witnesses. If a witness 

being impeached admits to the prior inconsistent statement, then he or 

she has been impeached and further extrinsic evidence is neither necessary nor generally allowed.

9. Effectiveness of Counsel: Appeal and Error. Assignments of error on 

direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance.

Appeal from the District Court for Lancaster County: Ryan 

S. Post, Judge. Affirmed.

Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O., 

for appellant.

Michael T. Hilgers, Attorney General, and Teryn Blessin for 

appellee.

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

Papik, and Freudenberg, JJ.

Heavican, C.J.

Hope T. Npimnee was convicted of first degree sexual 

assault and sentenced to 35 to 40 years’ imprisonment. We 

affirm Npimnee’s conviction and sentence.

BACKGROUND

On July 8, 2021, S.M., who lived in Omaha, Nebraska, 

was in Lincoln, Nebraska, to celebrate a cousin’s birthday. 

S.M. arrived at approximately 7 or 8 p.m. and spent a few 

hours in the downtown area of Lincoln with her cousin and 

friends. S.M. consumed about three drinks during that time. 

Around 10 or 10:30 p.m., S.M. returned to her vehicle to drive 

home. While on the way to her vehicle, she met a group of 
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individuals whom she did not know. That group invited her to 

go to another bar with them. She agreed and went to that bar, 

and then on to a second establishment. S.M. testified that she 

had 1 to 11⁄2 more drinks, for a total of 4 or 41⁄2 drinks that 

night, but that it was possible that she had more drinks than 

she remembered.

S.M. testified that she became annoyed with one member 

of her group and left the group. S.M. stated her intoxication 

level was an 8 on a 10-point scale. Upon contacting her roommate to come to pick her up in Lincoln, she was reminded by 

the roommate that she had previously arranged a ride with the 

roommate while at the second bar and that the roommate was 

already on her way. S.M. and her roommate both testified that 

for safety reasons, each had “shared” their location (on their 

cell phones) with the other on an indefinite basis.

After leaving the second establishment, which was located 

at 11th and M Streets, S.M. ended up on a bench near a bar at 

the corner of 14th and P Streets—several blocks in the opposite 

direction from her vehicle—at approximately 2 a.m. S.M. testified she remembered that a man, later identified as Npimnee, 

began conversing with her. Though she does not remember 

doing so, she apparently got into Npimnee’s vehicle.

S.M. testified that she next remembered being parked in a 

parking lot with Npimnee, who left the vehicle and reentered 

it on the passenger side. S.M. testified that Npimnee unbuttoned and removed her jean shorts and that she told him, 

“[N]o, this isn’t happening,” but that Npimnee did not stop. 

S.M. testified that Npimnee performed oral sex on her as she 

continued to say no, and she further testified that she continued to feel her intoxication level was an 8 or 9 on a 10-point 

scale. S.M. further testified that Npimnee did not stop until 

a police officer drove upon the scene and stopped behind 

Npimnee’s vehicle.

S.M. testified that she immediately got out of Npimnee’s 

vehicle, “pulled [her shorts] up,” and reported the incident 

to the officer. On cross-examination, S.M. admitted that she 
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told law enforcement that Npimnee penetrated her with his 

finger. She further testified that it was “possible” she also told 

law enforcement that Npimnee tried to penetrate her with his 

penis and that he might have exposed his penis to her. By the 

time of trial, S.M. testified only that Npimnee performed oral 

sex on her.

After her initial report to the officer, S.M. was taken to 

the police station to make a formal statement. Her roommate 

arrived later and joined S.M. at the police station. The roommate’s testimony, as well as a history of text and social media 

messages between S.M. and her roommate (replete with misspellings and other indicators of possible intoxication) were 

also offered into evidence. S.M. testified that she felt less 

intoxicated as she was giving her statement to law enforcement at the police station—perhaps a 6 or 7 on a 10-point 

scale. S.M. went to the hospital for an examination by a 

sexual assault nurse examiner and a blood draw. The blood 

draw revealed that S.M.’s blood alcohol level was a .109 as of 

approximately 5:45 a.m.

Npimnee initially denied all sexual contact with S.M. He 

eventually gave a statement that he and S.M. had been kissing and that he moved to the passenger side of the vehicle and 

attempted oral sex on S.M. Npimnee said that S.M. told him 

“no,” so he stopped. It was at about this time, according to 

Npimnee, that the officer arrived.

DNA testing was done on swabs taken from Npimnee, 

while still on the scene of the incident, as well as on swabs 

obtained from S.M.’s examination. That testing showed that 

Npimnee’s hands contained a mixture in which there was 

“very strong support” for S.M.’s inclusion as a major female 

contributor. S.M.’s vaginal, mons pubis, and external genital 

swabs all tested presumptively positive for saliva. Further 

testing on the mons pubis swab showed “very strong support” 

that both Npimnee and S.M. were contributors to the mixture 

found on that swab.
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“YSTR testing,” which looks specifically at male DNA, 

was completed on the vaginal and external genital swabs, 

because autosomal or regular DNA testing could not be completed because of the overwhelming presence of female DNA. 

The testing of the vaginal and external genital swabs showed 

that on both swabs Npimnee was included in a profile with 

a statistic that, “of 13,228 YSTR DNA profiles, this profile 

was observed zero times [and was] not expected to occur 

more frequently than one in every 4,461 . . . males” in the 

United States.

Following a jury trial, Npimnee was convicted of first 

degree sexual assault and sentenced to 35 to 40 years’ imprisonment. Npimnee appeals.

ASSIGNMENTS OF ERROR

Npimnee assigns that the district court erred in (1) instructing the jury on two alternative and contradictory theories 

of the case; (2) instructing the jury on the theory that S.M. 

was so intoxicated as to be incapable of consenting, because 

there was no evidence that S.M. was severely intoxicated; 

(3) failing to instruct the jury on the defense of consent; (4) 

restricting Npimnee’s ability to cross-examine S.M.; and (5) 

denying Npimnee’s motion to dismiss at the conclusion of 

the State’s case. Npimnee also assigns that his trial counsel 

was ineffective.

STANDARD OF REVIEW

[1-3] Whether jury instructions are correct is a question of 

law, which an appellate court resolves independently of the 

lower court’s decision. 1 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. 2 Failure to object to a jury 

1 State v. Esch, 315 Neb. 482, 997 N.W.2d 569 (2023).

2 Id.
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instruction after it has been submitted to counsel for review 

precludes raising an objection on appeal absent plain error 

indicative of a probable miscarriage of justice. 3

[4] In reviewing a criminal conviction for sufficiency of 

the evidence, 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. 4 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. 5

[5,6] Whether a claim of ineffective assistance of counsel 

can be determined on direct appeal presents a question of law, 

which turns upon the sufficiency of the record to address the 

claim without an evidentiary hearing or whether the claim 

rests solely on the interpretation of a statute or constitutional 

requirement. 6 In reviewing a claim of ineffective assistance of 

counsel on direct appeal, an appellate court determines as a 

matter of law whether the record conclusively shows that (1) a 

defense counsel’s performance was deficient or (2) a defendant was or was not prejudiced by a defense counsel’s alleged 

deficient performance. 7

ANALYSIS

Jury Instructions and Sufficiency of Evidence.

Npimnee makes several assignments of error relating to 

jury instructions. He argues that the district court erred in 

3 Id.

4 See State v. Miller, 312 Neb. 17, 978 N.W.2d 19 (2022).

5 Id.

6 See State v. Warner, 312 Neb. 116, 977 N.W.2d 904 (2022).

7 See id.
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(1) instructing the jury on two alternative and contradictory 

theories of the case; (2) instructing the jury on the theory 

that S.M. was so intoxicated as to be incapable of consenting, 

because there was no evidence that S.M. was severely intoxicated; and (3) failing to instruct on the defense of consent. 

Npimnee did not object to any of the instructions given to the 

jury, nor did he offer any proposed instructions. Given this 

failure, we review the record for plain error.

We turn first to Npimnee’s assertion that the jury was erroneously instructed as to alternative and contradictory theories 

of the case. As relevant, the jury was instructed as follows:

Regarding the crime of Sexual Assault, 1st Degree, the 

State must prove beyond a reasonable doubt that

1. . . . Npimnee did subject [S.M.] to sexual penetration; and

2. (a) . . . Npimnee knew or should have known that 

[S.M.] was mentally or physically incapable of resisting 

or appraising the nature of his conduct; or

(b) . . . Npimnee did so without the consent of [S.M.]; 

and

3. . . . Npimnee did so on or about July 9, 2021, in 

Lancaster County, Nebraska.

Under the law, the elements described in ¶2(a) and 

¶2(b) constitute a single offense. As a result, you need 

not agree unanimously on whether (a) . . . Npimnee 

knew or should have known that [S.M.] was mentally 

or physically incapable of resisting or appraising the 

nature of his conduct or (b) whether . . . Npimnee did 

so without the consent of [S.M.], so long as you agree 

unanimously that the State has established either of the 

elements described in ¶2(a) and ¶2(b) beyond a reasonable doubt.

In his first assignment of error, Npimnee contends that 

these two theories of prosecution—S.M. did not consent and 

S.M. was “mentally or physically incapable of resisting or 
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appraising the nature of [Npimnee’s] conduct”—are contradictory and that thus, it was error to instruct as to both. In 

support of this, Npimnee cites State v. Barber.

 8

We find Barber distinguishable. There, the Nebraska Court 

of Appeals found that the district court erred in instructing 

the jury on a “without consent” theory and an “incapable of 

resisting” theory, concluding such was misleading. But in 

Barber, the Court of Appeals found that the “without consent” 

instruction was misleading because there was no evidence presented that the victim had expressed a lack of consent or had 

not consented.

[7] Conversely, this court has held on multiple occasions 

that the “without consent” theory and the “incapable of resisting” theory are two distinct ways of committing the same 

offense and that thus, where there is evidence of both, a juror 

may determine guilt based on either. 9 Because the State may 

charge and pursue a conviction based on these alternative theories, the instructions were not an incorrect statement of law.

Moreover, both theories were supported by the evidence at 

trial. As to consent, S.M. testified that she told Npimnee “no” 

several times prior to and during the oral sex act performed 

upon her. S.M. further testified that Npimnee did not stop until 

law enforcement arrived on the scene.

As to this point, Npimnee contends that the police camera 

footage shows that he was standing away from his vehicle 

prior to when law enforcement stopped near his vehicle and 

that such is proof that he ceased any activity when S.M. told 

him “no.” However, the record shows that Npimnee could have 

noticed the arrival of law enforcement in the parking lot at a 

point in time prior to law enforcement’s affirmatively engaging 

Npimnee. This supports S.M.’s assertion that Npimnee continued to engage in oral sex with her until law enforcement’s 

arrival at the scene.

8 State v. Barber, 28 Neb. App. 820, 948 N.W.2d 306 (2020).

9 See State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).
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Having concluded there was evidence that S.M. told 

Npimnee “no,” we turn to whether there was sufficient evidence to support the theory that S.M. was incapable of resisting. This, in turn, leads to another of Npimnee’s assignments 

of error—that there was insufficient evidence to show that 

S.M. was so intoxicated as to be incapable of resisting. This is 

without merit.

S.M. testified that she had consumed at least 4 to 41⁄2 drinks 

and that she could have consumed more but did not remember 

doing so. S.M. indicated that her intoxication level was an 8 

or 9 on a 10-point scale. Her blood alcohol level was .109 several hours after this incident. Furthermore, S.M. testified that 

she had gaps in her memory, including not remembering how 

she ended up in Npimnee’s vehicle or remembering how she 

got to the parking lot where the sexual penetration occurred. 

S.M.’s roommate testified that S.M. contacted her for a ride 

shortly after they had already arranged for a ride and that she 

could tell S.M. was getting more and more intoxicated and 

was starting to slur her words. S.M. walked several blocks in 

the wrong direction when attempting to return to her vehicle. 

There is also evidence of texts and social media messages 

containing slurred speech and numerous misspellings that are 

indicative of S.M.’s intoxication level.

Contrary to Npimnee’s argument on appeal, our case law 

does not set forth some mythical level of intoxication after 

which a person is considered to have a “significant abnormality” or to be “severe[ly] intoxicat[ed]” sufficient to render the 

person incapable of resisting for purposes of Neb. Rev. Stat. 

§ 28-319(1)(b) (Reissue 2016). 10 A victim can be incapable 

of consent without suffering from a “mental impairment” and 

can be incapable of resisting or appraising the nature of his 

or her conduct without suffering from an “abnormality” or 

10 See, e.g., State v. Rossbach, 264 Neb. 563, 572, 650 N.W.2d 242, 250 

(2002).
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“substantial mental or physical impairment,” 11 like “severe 

intoxication.” 12

Section 28-319(1)(b) requires an “individualized inquiry” 

into the victim’s capacity, 13 and the evidence in this case was 

sufficient for a jury to find that S.M. was so intoxicated as to 

be incapable of resisting Npimnee’s actions. There is no merit 

to this assignment of error.

We turn to Npimnee’s final assignment of error regarding 

jury instructions—that the district court erred in not instructing the jury as to his defense of consent. In support of this 

contention, Npimnee directs us to State v. Koperski. 14 In that 

case, we held that the district court erred in failing to instruct 

the jury as to consent, where such was the defendant’s defense, 

and that this was confusing and misleading to the jury.

We find Koperski distinguishable because it predates a 

change in the underlying statute defining and prohibiting first 

degree sexual assault. At the time Koperski was decided, first 

degree sexual assault did not include the element of consent. 

In other words, the State did not need to prove a lack of consent to the defendant’s alleged sexual penetration; thus, the 

defendant was entitled to an instruction on a defense of consent if there was evidence of consent. But the crime of first 

degree sexual assault now requires the State to show, among 

other elements, that sexual penetration was “without the consent of the victim.” 15

Likewise, in this case, the information charging Npimnee 

alleged either that Npimnee knew S.M. was incapable of resisting or that she did not consent. As is also noted above, the 

11 State v. Dady, 304 Neb. 649, 666, 936 N.W.2d 486, 500 (2019) (internal 

quotation marks omitted).

12 State v. Rossbach, supra note 10, 264 Neb. at 572, 650 N.W.2d at 250.

13 State v. Dady, supra note 11, 304 Neb. at 661, 936 N.W.2d at 497.

14 State v. Koperski, 254 Neb. 624, 578 N.W.2d 837 (1998).

15 See § 28-319(1)(a).
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jury was properly instructed as to these elements. The jury was 

further instructed that “‘[w]ithout consent’” meant:

(a) (i) The 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;

(b) the victim need only resist, either verbally or physically, so as to make the victim’s refusal to consent genuine and real and so as to reasonably make known to the 

actor the victim’s refusal to consent; and

(c) a victim need not resist verbally or physically 

where it would be useless or futile to do so.

Unlike in Koperski, Npimnee’s jury was required to find 

that the sexual contact was without consent (or that S.M. 

was incapable of resisting, which does not implicate consent 

as an element, nor allow it as a defense) in order to convict 

Npimnee. The jury was instructed as such. An additional 

instruction as to the defense of consent (which, we note, was 

not sought at trial) was not warranted here. There is no merit 

to this assertion on appeal.

Cross-Examination.

In addition to jury instructions, Npimnee assigns on appeal 

that he should have been permitted to cross-examine witnesses 

regarding statements S.M. made that Npimnee had penetrated 

her with his finger and attempted to penetrate her with his 

penis. Those questions were asked of S.M., who admitted on 

cross-examination that she made the statements. The State 

objected when Npimnee attempted to elicit those statements 

in the testimony of law enforcement officers who interviewed 

S.M. The court sustained the State’s objection.
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Neb. Rev. Stat. § 27-613 (Reissue 2016) provides:

(1) In examining a witness concerning a prior statement made by him, whether written or not, the statement 

need not be shown or its contents disclosed to him at that 

time, but on request the same shall be shown or disclosed 

to opposing counsel.

(2) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is 

afforded an opportunity to explain or deny the same and 

the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise 

require. This provision does not apply to admissions of 

a party-opponent as defined in subdivision (4)(b) of section 27-801.

[8] Also relevant is this court’s decision in State v. Johnson,

 16

where we held that if a witness being impeached admits to 

the prior inconsistent statement, then he or she has been 

impeached and further extrinsic evidence is neither necessary 

nor generally allowed. The district court found this applicable, 

and we agree.

In this case, the record shows that S.M. initially told officers that Npimnee had digitally penetrated her and that he 

might have attempted penile penetration in addition to exposing himself to her. She later gave statements indicating that 

neither digital nor penile penetration was attempted. At trial, 

S.M. testified on direct that Npimnee only performed oral 

sex and she agreed on cross-examination that she had previously made certain statements inconsistent with her later statements and her testimony at trial. Thus, S.M. was effectively 

impeached with her prior statements, and those statements 

were not admissible as impeachment during the testimony of 

subsequent witnesses as they were cumulative to S.M.’s own 

16 See State v. Johnson, 220 Neb. 392, 370 N.W.2d 1326 (1985) (abrogated 

on other grounds, State v. Morris, 251 Neb. 23, 554 N.W.2d 627 (1996)).
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admission on cross-examination. There is no merit to this 

assignment of error.

Ineffective Assistance of Counsel.

Finally, Npimnee assigns as error the ineffective assistance 

of trial counsel.

[9] Assignments of error on direct appeal regarding ineffective assistance of trial counsel must specifically allege deficient performance. 17 But in this case, Npimnee assigns only 

that his trial counsel was ineffective. His assignments of error 

fail to allege the specific ways in which trial counsel was ineffective. As such, Npimnee has failed to preserve any specific 

allegation relating to the ineffective assistance of counsel on 

direct appeal.

CONCLUSION

There was no error in the trial court’s instruction to the 

jury and no error in the trial court’s decision not to allow continued impeachment of S.M.’s prior statements. In addition, 

Npimnee’s allegations of ineffective assistance of counsel are 

insufficiently alleged and are not preserved for our review. 

The decision of the district court is affirmed.

Affirmed.

17 State v. Mrza, 302 Neb. 931, 926 N.W.2d 79 (2019).