State v. Mielak

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. MIELAK
Cite as 321 Neb. 542
State of Nebraska, appellee, v.
Evan J. Mielak, appellant.
___ N.W.3d ___
Filed June 12, 2026. 	No. S-24-064.
1. Convictions: Evidence: Appeal and Error. In reviewing a criminal
conviction for sufficiency of the evidence to sustain the conviction, the
relevant question for an appellate court is whether, after viewing the evi-
dence 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. Statutes: Appeal and Error. Statutory interpretation is a question of
law that an appellate court resolves independently of the trial court.
3. Jury Instructions: Appeal and Error. Whether jury instructions given
by a trial court are correct is a question of law. On a question of law,
an appellate court is obligated to reach a conclusion independent of the
determination reached by the court below.
4. Statutes: Words and Phrases. When terms in a statute are not spe-
cifically defined by the Legislature, principles of statutory interpreta-
tion generally require courts to give such terms their plain and ordi-
nary meaning.
5. Criminal Law: Legislature: Words and Phrases. When the Legislature
has defined specific terms for the purpose of the Nebraska Criminal
Code, courts will apply such definitions unless the context requires
otherwise.
6. Statutes: Legislature: Intent. In construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
7. Statutes. It is not within the province of the courts to read a meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/18/2026 12:38 AM CDT

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. MIELAK
Cite as 321 Neb. 542
8. Sexual Assault. For purposes of expressing a lack of consent through
conduct under Neb. Rev. Stat. § 28-318(8)(a)(iii) (Cum. Supp. 2024), a
victim’s conduct can include both actions and omissions and can include
a series of acts and omissions.
9. Jury Instructions: Proof: Appeal and Error. To establish reversible
error from a court’s refusal to give a requested jury instruction, an
appellant has the burden to show that (1) the tendered instruction is a
correct statement of the law, (2) the tendered instruction was warranted
by the evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction.
10. Jury Instructions: Records: Appeal and Error. It is incumbent upon
an appellant to supply a record which supports his or her appeal, and
when a proposed instruction is not included in the record on appeal,
the appellate court has no instruction to review in order to determine
whether it ought to have been given.
Petition for further review from the Court of Appeals, Pirtle,
Bishop, and Arterburn, Judges, on appeal thereto from the
District Court for Lancaster County, Kevin R. McManaman,
Judge. Judgment of Court of Appeals affirmed.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
L.L.O., for appellant.
Michael T. Hilgers, Attorney General, and Jordan Osborne
for appellee.
Miller-Lerman, Cassel, Stacy, Papik, Freudenberg, and
Bergevin, JJ.
Stacy, J.
After a jury trial, Evan J. Mielak was convicted of first
degree sexual assault for digitally penetrating his roommate
while she was intoxicated and appeared to be asleep or uncon-
scious. The Nebraska Court of Appeals affirmed his convic-
tion. 1 Mielak seeks further review, challenging the sufficiency
of the evidence to support his conviction and arguing that it
1 State v. Mielak, 33 Neb. App. 309, 16 N.W.3d 143 (2025).

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. MIELAK
Cite as 321 Neb. 542
was error to refuse his proposed jury instruction. We granted
further review to address two issues: (1) what type of con-
duct is required to express a lack of consent for purposes of
Neb. Rev. Stat. § 28-318(8)(a)(iii) (Cum. Supp. 2024) and (2)
whether an intoxicated victim can be “mentally or physically
incapable of resisting or appraising” the nature of the conduct
under Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016) if the vic-
tim was aware of the penetration as it was occurring. Although
our reasoning differs somewhat from that articulated by the
Court of Appeals, we affirm its decision.
I. BACKGROUND
On June 7, 2023, Mielak was charged in the district court
for Lancaster County with the first degree sexual assault of
H.S. in violation of § 28-319(1). The information alleged that
on or about April 7, 2023, Mielak subjected H.S. to sexual
penetration either without consent or when Mielak knew or
should have known that H.S. was mentally or physically
incapable of resisting or appraising the nature of his conduct.
Mielak pled not guilty, and the matter proceeded to trial.
Over the course of a 3-day jury trial, the State called mul-
tiple witnesses, including H.S. and four of her roommates.
Mielak did not testify and did not call any witnesses. To
address the issues raised on further review, we summarize the
trial evidence viewed in the light most favorable to the State. 2
1. Trial Evidence
In April 2023, H.S. shared an apartment with her sister and
four male roommates, including Mielak. H.S. and her sister
shared a bedroom, and they also shared exclusive use of the
bathroom nearest their bedroom; the roommates agreed that
males were not allowed in that bathroom.
2 See State v. Vazquez, 319 Neb. 192, 21 N.W.3d 615 (2025) (when
reviewing criminal conviction for sufficiency of evidence, appellate court
views evidence in light most favorable to prosecution).

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. MIELAK
Cite as 321 Neb. 542
On April 7, 2023, a group of roommates, including H.S.,
her sister, and Mielak, were playing a drinking game in the
apartment. The players consumed large amounts of alcohol in
a short period of time. After consuming about five alcoholic
seltzer drinks in 1 hour, H.S. was intoxicated and began to feel
unwell. She left the group and went to her bathroom to vomit.
After vomiting, H.S. still felt unwell, so she stayed in the bath-
room with the door closed. Eventually, H.S. fell asleep next to
the toilet, lying face down on the bathroom floor.
Several of the roommates realized H.S. was “pretty drunk,”
and they encouraged her sister to check on her. The sister went
to the bathroom and offered H.S. some water. H.S. mumbled
something but did not move or reach for the water, so the sis-
ter set the water next to H.S. and left the bathroom. After clos-
ing the bathroom door, the sister encountered Mielak standing
just outside the bathroom door. Mielak offered to help take
care of H.S., but the sister told Mielak that she would take care
of things, and she reminded Mielak he was not allowed in that
bathroom. The sister then walked to the opposite end of the
apartment to take a phone call.
H.S. testified that she remembered only parts of what hap-
pened after she went into the bathroom. She recalled getting
sick, her sister coming in to check on her and bringing her
water, and falling asleep next to the toilet while lying on
her stomach. H.S. also recalled waking up and realizing that
another person was in the bathroom with her. H.S. remained
still, face down on the floor, as the person crouched down
next to her. She “froze up” and “couldn’t move” when she
felt her pants being pulled down and fingers being inserted
into her vagina. She believed the person was Mielak, because
she could hear the other male roommates talking in the liv-
ing room. H.S. was “really scared” and did not move, speak,
or open her eyes during the penetration. When the penetra-
tion stopped, H.S. could hear what sounded like the person
“touching himself.” She remained still and did not speak

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. MIELAK
Cite as 321 Neb. 542
or open her eyes because she was “scared that he might do
something worse” if she reacted. Eventually, H.S. heard the
person leave the bathroom and shut the door. She stayed in
the bathroom for a short period of time and cried and then left
to search for her sister and report what had occurred.
H.S. found her sister at the other end of the apartment talk-
ing on the phone. When the sister saw that H.S. was upset and
crying, she ended her phone conversation. The sister testified
H.S. told her that Mielak had “fingered her” in the bathroom
and that H.S. heard him “jerking off.” The sister confronted
Mielak about the assault, after which H.S. and her sister left
the apartment.
After they left, one of the male roommates asked Mielak
what happened, and Mielak began crying and said he “screwed
up” with H.S. and had “inappropriately touched” her. A few
days later, Mielak told a different roommate that he had “inap-
propriately touched” H.S. and that she had asked him to move
out of the apartment, which he did.
One week later, H.S reported the sexual assault to law
enforcement, who arranged for H.S. to make a controlled
phone call to Mielak. The call was recorded, received as evi-
dence at trial, and played for the jury. During the recorded
call, H.S. told Mielak that she needed closure, and she accused
Mielak of “finger[ing]” her. Mielak became very emotional
and sobbed throughout the call. He apologized to H.S. repeat-
edly, saying things like “You shouldn’t have to hear me cry, I
did something horrible”; “I don’t know what I was thinking”;
“I feel like a monster, I’m so sorry”; “I don’t know what I
expected”; and “I can’t express how sorry I am.”
After the State rested its case in chief, Mielak made an oral
motion to dismiss, arguing that the State had not adduced suf-
ficient evidence to prove the material elements of first degree
sexual assault under either of the two theories charged. The
court overruled the motion, and Mielak rested without adduc-
ing any evidence.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. MIELAK
Cite as 321 Neb. 542
2. Jury Instructions
The jury was given an elements instruction stating that to
find Mielak guilty of first degree sexual assault, the State had
to prove beyond a reasonable doubt that
1. [Mielak] did subject [H.S.] to sexual penetration;
2. [Mielak] did so:
(a) without the consent of [H.S.]; or
(b) when [Mielak] knew or should have known that
[H.S.] was mentally or physically incapable of resisting
or appraising the nature of his conduct; and
3. Did so on or about April 7, 2023, in Lancaster
County, Nebraska.
This instruction was based on § 28-319(1). The jury was fur-
ther instructed:
The elements described in paragraph 2 (a) and 2 (b)
constitute a single element of the offense of Sexual Assault
1st Degree. As a result, you need not agree unanimously
on whether [Mielak] did so without the consent of [H.S.]
or whether [Mielak] knew or should have known that
[H.S.] was mentally or physical[ly] incapable of resisting
or appraising the nature of his conduct, so long as you
agree unanimously that the State has established the
element described in paragraph 2 (a) or 2 (b) beyond a
reasonable doubt. 3
And a separate definitional instruction based on the language
of § 28-318(8) stated:
“Without consent” means:
(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;
3 See, e.g., State v. Npimnee, 316 Neb. 1, 8, 2 N.W.3d 620, 627 (2024)
(emphasizing “‘without consent’” and “‘incapable of resisting’” theories
are two distinct ways of committing same offense of first degree sexual
assault).

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. MIELAK
Cite as 321 Neb. 542
(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.
(d) coercion shall include nonphysical force.
You 	are 	to 	use 	your 	common 	sense 	and 	general
knowledge that everyone has in determining the meaning
of any other term not defined above.
During 	the 	formal 	jury 	instruction 	conference, 	Mielak
objected to including the phrase “should have known” in the
elements instruction without providing a separate definition.
Although Mielak conceded that this phrase was a verbatim
quote of the statutory language in § 28-319(1)(b), he argued
that without a separate definition explaining criminal neg-
ligence, the phrase “was ‘below the constitutional require-
ment of some element of mens rea’” 4 and would potentially
allow for a felony conviction based upon ordinary negligence.
While arguing his objection, Mielak referenced a proposed
jury instruction purportedly defining the phrase “should have
known,” but the proposed instruction was not included in the
appellate record, and the language of the proposed instruction
is not apparent from the appellate record. The district court
overruled Mielak’s objection and declined to give the pro-
posed instruction.
3. Closing Arguments
The State’s theory at trial was that Mielak knew H.S. was
highly intoxicated and that he believed she was either asleep
or passed out when he sexually assaulted her. According to
the State, the evidence proved beyond a reasonable doubt that
Mielak was guilty of first degree sexual assault under either of
the two theories charged.
4 Mielak, supra note 1, 33 Neb. App. at 316, 16 N.W.3d at 151.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. MIELAK
Cite as 321 Neb. 542
In arguing that the sexual penetration was “without the con-
sent of the victim” under § 28-319(1)(a), the State acknowl-
edged that H.S. did not express a lack of consent through words,
but it argued there was ample evidence that she expressed a
lack of consent through her conduct that included going into
her private bathroom where males were not allowed, closing
the door, and falling asleep on the floor while fully clothed.
The State argued this conduct plainly showed a lack of con-
sent to sexual activity and “[t]here’s no other way that that can
be read.”
In arguing that Mielak “knew or should have known that
the victim was mentally or physically incapable of resisting
or appraising” the nature of his conduct under § 29-319(1)(b),
the State relied on evidence showing what Mielak knew about
H.S.’ level of intoxication, what he saw when he opened the
bathroom door, what he did while inside the bathroom, and
how he reacted later when he was confronted about his actions.
The State emphasized that Mielak knew H.S. was intoxicated
to the point of being ill; that he saw her lying face down on
the bathroom floor with her eyes closed; and that she did not
speak, move, or open her eyes when he pulled down her pants
and digitally penetrated her. Based on this evidence, the State
suggested that Mielak believed H.S. either was unconscious
or was asleep and that he therefore knew or should have
known she was incapable of resisting his sexual contact. The
State argued that this conclusion was supported by Mielak’s
reaction when he was confronted about what occurred in the
bathroom, including his admitting that he touched H.S. “inap-
propriately” and describing himself as a “horrible person” and
a “monster.”
In Mielak’s closing argument, he did not deny that he
digitally penetrated H.S. in the bathroom; instead, he argued
there was insufficient evidence to prove either that he did so
“without consent” or that he “knew or should have known”
that H.S. was incapable of resisting the sexual contact. Mielak

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. MIELAK
Cite as 321 Neb. 542
emphasized that H.S.’ testimony showed she was aware of the
penetration as it was occurring, and he argued that her ability
to recall and recount the penetration showed that her level of
intoxication was not severe enough to render her incapable
of resisting or appraising the sexual conduct. Mielak also
argued that because H.S. never told him to stop or physically
resisted his sexual contact, she failed to express a lack of
consent through either words or conduct. Summarized, it was
Mielak’s theory that “[e]ither [H.S.] knows what’s going on
because she’s not intoxicated . . . or she’s so drunk that she
doesn’t know what happened to her; but it can’t be both.”
4. Verdict, Posttrial Motions,
and Sentencing
The jury returned a general verdict finding Mielak guilty
of first degree sexual assault. Mielak moved for a new trial
or, in the alternative, to vacate the judgment of conviction.
In support, he argued the evidence was insufficient to support
a conviction under either a “without consent” theory or an
“incapable of resisting or appraising” theory. The district court
overruled the postverdict motions, reasoning the evidence was
sufficient to convict Mielak under either theory.
The district court sentenced Mielak to imprisonment for a
term of not less than 4 years nor more than 8 years. Mielak
filed a timely notice of appeal, represented by trial counsel.
5. Court of Appeals
Mielak assigned multiple errors before the Court of Appeals,
but we discuss only those raised again on further review.
Mielak assigned, consolidated and restated, that (1) the evi-
dence was insufficient to prove that the sexual penetration was
without consent, (2) the evidence was insufficient to prove that
Mielak knew or should have known that H.S. was incapable of
resisting or appraising the nature of the sexual conduct, and
(3) it was error not to give his proposed jury instruction.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. MIELAK
Cite as 321 Neb. 542
The Court of Appeals found no merit to any of these
assigned errors, and it affirmed the judgment of the district
court. We discuss its reasoning later in this opinion.
6. Petition for Further Review
Mielak timely petitioned for further review, arguing that
the district court and the Court of Appeals erred in construing
and applying Nebraska’s first degree sexual assault statutes.
We granted further review to address (1) Mielak’s assertion
that in order for a victim to express a lack of consent through
conduct, the conduct must be “active” 5 and related “to the
direct sexual contact,” 6 and (2) his assertion that because H.S.
testified at trial that she was aware of the sexual penetration as
it was occurring and she was able to accurately describe it, no
reasonable jury could find that her intoxication rendered her
“mentally or physically incapable of resisting or appraising the
nature of [the] conduct” for purposes of § 28-319(1)(b).
II. ASSIGNMENTS OF ERROR
On further review, Mielak assigns, consolidated and restated,
that the Court of Appeals erred in affirming his conviction
because (1) the evidence was insufficient to prove that the
sexual penetration was without consent, (2) the evidence was
insufficient to prove that Mielak knew or should have known
that H.S. was incapable of resisting or appraising the nature
of his conduct, and (3) it was error not to give his proposed
jury instruction.
III. STANDARD OF REVIEW
[1] In reviewing a criminal conviction for sufficiency of the
evidence to sustain the conviction, the relevant question for
an appellate court is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier
5 Brief for appellant in support of petition for further review at 5 (internal
quotation marks omitted).
6 Brief for appellant at 18.

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Nebraska Supreme Court Advance Sheets
321 Nebraska Reports
STATE v. MIELAK
Cite as 321 Neb. 542
of fact could have found the essential elements of the crime
beyond a reasonable doubt. 7
[2] Statutory interpretation is a question of law that an
appellate court resolves independently of the trial court. 8
[3] Whether jury instructions given by a trial court are cor-
rect is a question of law. 9 On a question of law, an appellate
court is obligated to reach a conclusion independent of the
determination reached by the court below. 10
IV. ANALYSIS
1. Sufficiency of Evidence
Because Mielak’s first two assignments of error challenge
the sufficiency of the evidence to convict him of first degree
sexual assault, we begin our analysis by reviewing the essential
elements of the crime. First degree sexual assault is defined in
§ 28-319(1), which provides, as relevant here:
Any person who subjects another person to sexual pen-
etration (a) without the consent of the victim, [or] (b) who
knew or should have known that the victim was mentally
or physically incapable of resisting or appraising the
nature of his or her conduct . . . is guilty of sexual assault
in the first degree.
Section 28-319(1) recognizes alternative ways to commit
the offense of first degree sexual assault. 11 In other words,
sexual penetration “without the consent of the victim” under
§ 28-319(1)(a) and sexual penetration of a victim who is
“incapable of resisting” under § 28-319(1)(b) represent two
distinct ways to commit the same offense, 12 and “where
7 Vazquez, supra note 2.
8 State v. Weber, 320 Neb. 934, 31 N.W.3d 229 (2026).
9 State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006); State v. Anderson,
269 Neb. 365, 693 N.W.2d 267 (2005).
10 Molina, supra note 9.
11 See State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).
12 See Npimnee, supra note 3.

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Nebraska Supreme Court Advance Sheets
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STATE v. MIELAK
Cite as 321 Neb. 542
there is evidence of both, a juror may determine guilt based
on either.” 13
Mielak 	was 	charged 	in 	the 	alternative 	under 	both
§ 28-319(1)(a) and (1)(b). At trial, he did not dispute that
he subjected H.S. to sexual penetration. 14 Instead, he argued
that the State failed to prove either that the penetration was
without H.S.’ consent as prohibited by § 28-319(1)(a) or that
Mielak knew or should have known that H.S. was incapable of
resisting or appraising the nature of his conduct as prohibited
by § 28-319(1)(b). The district court concluded the evidence
was sufficient to submit both alternative theories to the jury,
and the jury returned a general verdict finding Mielak guilty
of first degree sexual assault. The Court of Appeals affirmed,
and the relevant question on further review is whether, view-
ing the evidence in the light most favorable to the State, any
rational trier of fact could have found the essential elements
of the crime of first degree sexual assault under either of the
alternative theories charged. 15
Ordinarily, an appellate court will affirm a judgment of
conviction if the evidence was sufficient to prove any one
of the State’s alternative theories, and it need not consider
whether the evidence was sufficient to support each alterna-
tive charged. 16 But for the sake of completeness, the Court
of Appeals elected to address the sufficiency of the evidence
13 Id. at 8, 2 N.W.3d at 627. See State v. Eagle Bull, 285 Neb. 369, 827
N.W.2d 466 (2013). See, also, Griffin v. United States, 502 U.S. 46, 112 S.
Ct. 466, 116 L. Ed. 2d 371 (1991).
14 See § 28-318(6) (defining sexual penetration to include any intrusion of
any part of actor’s body into genital opening of victim’s body).
15 See Vazquez, supra note 2.
16 See, McCurdy, supra note 11, 301 Neb. at 354, 918 N.W.2d at 300 (holding
when defendant charged under alternative theories, “‘the judgment of
conviction must be affirmed if the evidence is sufficient to support either
of the State’s alternative theories of guilt’”); State v. Knutson, 288 Neb.
823, 843, 852 N.W.2d 307, 324 (2014) (holding “judgment must be
affirmed if [evidence] was sufficient to support any of the State’s three
theories of guilt”).

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STATE v. MIELAK
Cite as 321 Neb. 542
under both alternatives. We do likewise and address each
theory in turn.
(a) Evidence That Sexual Penetration
Was “Without Consent”
For purposes of proving that sexual penetration was “without
the consent of the victim” under § 28-319(1)(a), the Legislature
has defined “without consent” to mean:
(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[.] 17
In State v McCurdy, 18 we explained that § 28-318(8)(a) sets
out four alternative ways to prove that a sexual act was “with-
out consent” of the alleged victim, and we emphasized that
“one of the four alternatives set forth in subsection (a) must
be shown.” 19 The court in McCurdy also explained the role of
subsections (b) and (c) in § 28-318(8), stating that these are
not additional independent ways to show that a sexual act was
“without consent,” but, rather, describe the nature of the proof
necessary to establish one of the four alternatives set forth in
subsection (8)(a). 20
17 § 28-318(8).
18 McCurdy, supra note 11.
19 Id. at 355, 918 N.W.2d at 301.
20 Id.

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STATE v. MIELAK
Cite as 321 Neb. 542
Of the four statutory alternatives for proving “without con-
sent” under § 28-318(8)(a), the parties focus their arguments
on just one: whether the evidence was sufficient to show that
H.S. “expressed a lack of consent through conduct.” 21 To date,
no Nebraska Supreme Court opinion has directly addressed
what sort of evidence is required to prove a lack of consent
through conduct, and the parties advance competing inter-
pretations of the term “conduct” for purposes of the sexual
assault statutes. Before we summarize the parties’ positions,
we review the settled principles of statutory construction that
guide our analysis.
(i) Principles of Statutory Construction
[4-7] When terms in a statute are not specifically defined
by the Legislature, our principles of statutory interpretation
generally require courts to give such terms their plain and
ordinary meaning. 22 But when the Legislature has defined
specific terms for the purpose of the Nebraska Criminal Code,
courts will apply such definitions unless the context requires
otherwise. 23 In construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature as
ascertained from the entire language of the statute considered
in its plain, ordinary, and popular sense. 24 It is not within
the province of the courts to read a meaning into a statute
that is not there or to read anything direct and plain out of
a statute. 25
(ii) Parties’ Arguments and
Court of Appeals’ Reasoning
Mielak makes two arguments regarding the type of con-
duct that can express a lack of consent. First, he argues that
21 § 28-318(8)(a)(iii).
22 See Brown v. State, 315 Neb. 336, 996 N.W.2d 56 (2023).
23 See Neb. Rev. Stat. § 28-109 (Reissue 2016).
24 Weber, supra note 8.
25 Id.

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“[i]naction [c]annot be [c]onstrued as [c]onduct [e]xpressing
a [l]ack of [c]onsent.” 26 And second, he contends that only
conduct related to the “specific sexual contact, in real time”
can express a lack of consent. 27 Based on these arguments,
Mielak suggests that evidence of H.S.’ conduct prior to the
penetration was irrelevant to determining consent, and he sug-
gests that because the evidence showed H.S. “froze up” when
she became aware he was pulling down her pants and insert-
ing his fingers into her vagina, there was no evidence that she
expressed a lack of consent to the specific sexual contact as it
was occurring.
The State disagrees. It relies on a Black’s Law Dictionary
definition to argue that the term “conduct” necessarily includes
both action and inaction. 28 And the State contends that nothing
in the language of § 28-318(8)(a)(iii) “limits the victim’s con-
duct that a jury may consider to a specific timeframe in relation
to the sexual acts at issue.” 29
The Court of Appeals observed that “[t]he issue of what con-
stitutes conduct under the statute appears to be a novel one.” 30
But it rejected Mielak’s proposed limits to “conduct” under
§ 28-318(8)(a)(iii) and deemed it unnecessary to formally
adopt the dictionary definition of “conduct” urged by the State,
reasoning:
We find that under the limited facts of this case,
“conduct” is not limited solely to active expression, as
Mielak argues. According to the Black’s Law Dictionary
definition, 	conduct 	is 	a 	more 	expansive 	term 	that
encompasses all the ways in which a person behaves in a
26 Brief for appellant at 17.
27 Brief for appellant in support of petition for further review at 4.
28 See Black’s Law Dictionary 372 (12th ed. 2024) (defining “conduct” as
“[p]ersonal behavior, whether by action or inaction, verbal or nonverbal;
the manner in which a person behaves; collectively, a person’s deeds”).
29 Brief for appellee at 24.
30 Mielak, supra note 1, 33 Neb. App. at 323, 16 N.W.3d at 156.

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specific context. While we decline to expressly adopt this
definition, we find that an individual’s conduct is heavily
dependent upon the facts of each case. Depending on the
circumstances at hand, inaction could be a component
of an individual’s conduct. With this understanding, we
review the evidence in a light most favorable to the State
to determine whether the jury could find that under these
unique circumstances, H.S.’ conduct expressed her lack
of consent. 31
When examining the evidence, the Court of Appeals consid-
ered all of H.S.’ conduct over the course of the evening, not
just her conduct during the sexual penetration, and it concluded
there was sufficient evidence for the jury to conclude that
“H.S.’ conduct communicated the message that she was deny-
ing consent to sexual penetration, that her refusal was reason-
ably made known to Mielak, and that Mielak understood the
communication provided to him.” 32 The Court of Appeals thus
rejected Mielak’s argument that the evidence was insufficient
to support the theory that H.S. expressed a lack of consent
through her conduct and that Mielak therefore sexually pen-
etrated H.S. without her consent.
(iii) Definition of “Conduct”
Although we agree with the Court of Appeals that it is
not necessary to resort to dictionary definitions to construe
the meaning of “conduct” as used in § 28-318(8)(a)(iii), we
reach that conclusion for a different reason: The Legislature
has defined the term “conduct” for purposes of the Nebraska
Criminal Code.
Section 	28-109 	states, 	“For 	purposes 	of 	the 	Nebraska
Criminal Code, unless the context otherwise requires . . . (5)
Conduct shall mean an action or omission and its accompa-
nying state of mind, or, where relevant, a series of acts and
31 Id. at 325, 16 N.W.3d at 157.
32 Id. at 326, 16 N.W.3d at 157.

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omissions.” Generally, the phrase “unless the context other-
wise requires” refers to the context within which a defined
statutory term is used in a statute’s substantive provisions. 33
[8] Section 28-109(5) defines the term “conduct” in the same
context as the term “conduct” is used in § 28-318(8)(a)(iii),
and we therefore give it the same meaning. We hold that for
purposes of expressing a lack of consent through conduct
under § 28-318(8)(a)(iii), a victim’s conduct can include both
actions and omissions and can include a series of acts and
omissions. 34 As such, “conduct” under § 28-318(8)(a)(iii)
necessarily includes both action and inaction expressing a
victim’s lack of consent to sexual contact and can include
action and inaction occurring prior to the specific sexual act
at issue.
Although this is the first time we have expressly construed
the meaning of “conduct” under § 28-318(8)(a)(iii), the defini-
tion articulated today is consistent with the approach taken by
Nebraska appellate courts for decades.
For example, in State v. Prado, 35 the defendant was a
stranger who entered the victim’s apartment while she was
sleeping, got into her bed, and digitally penetrated her. The
victim testified that she awoke and felt someone touching
her buttocks and then could feel fingers in her vagina, but
she did not resist through words or conduct because she was
“‘half-asleep/half-awake.’” 36
On appeal, the defendant argued this evidence was insuf-
ficient to support a conviction for first degree sexual assault
under § 28-319(1)(a) because it failed to show the penetration
was without consent. He argued, in part, that the evidence
33 See Heiden v. Norris, 300 Neb. 171, 912 N.W.2d 758 (2018).
34 See, also, State v. Gangahar, 9 Neb. App. 205, 210, 609 N.W.2d 690, 695
(2000) (holding that issue under § 28-318(8)(a) is “whether [the victim’s]
words, actions, or inaction” express lack of consent).
35 State v. Prado, 30 Neb. App. 223, 967 N.W.2d 696 (2021).
36 Id. at 228, 967 N.W.2d at 707.

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was insufficient because the victim testified she was aware of
the penetration as it was occurring but did not resist through
words or conduct. The Court of Appeals rejected this argu-
ment, reasoning that the jury could consider all the circum-
stances, including that the defendant entered the apartment
and the victim’s bed uninvited and penetrated her while she
was sleeping, in determining whether the victim had expressed
a lack of consent through conduct, and it concluded there was
sufficient evidence she had. 37
Additionally, in State v. Gangahar, 38 the Court of Appeals
affirmed a conviction in a published opinion, and on further
review, we adopted that opinion in its entirety. The relevant
issue in Gangahar was whether the victim expressed a lack
of consent under § 28-318(8)(a). As explained by the Court
of Appeals, that statute “puts in issue whether [the victim’s]
words, actions, or inaction made her lack of consent ‘genuine
and real’ sufficient for [the defendant] to reasonably know
that there was a refusal to consent to his advances.” 39 And
in examining the evidence related to expression of lack of
consent, the Court of Appeals considered all the relevant
circumstances, not just those that occurred at the time of the
sexual contact.
The courts in both Prado and Gangahar reasoned that a
victim can express a lack of consent under § 28-318(8)(a)(iii)
through both action and inaction, as well as through conduct
that occurs both prior to and during the specific sexual act at
issue. These cases thus rejected arguments similar to the ones
Mielak asserts on further review and applied a definition of
“conduct” that is consistent with the one articulated today.
37 See, also, State v. Alvarado, 27 Neb. App. 334, 931 N.W.2d 463 (2019)
(holding sexual penetration while victim is sleeping is without consent of
victim). Cf. State v. Moeller, 1 Neb. App. 1046, 1050, 510 N.W.2d 500,
503 (1993) (suggesting sleeping victim was “not capable of resisting or
appraising the nature of her conduct” under § 28-319(1)(b)).
38 Gangahar, supra note 34.
39 Id. at 210, 609 N.W.2d at 695 (emphasis supplied).

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In the next section, we apply that definition to the evidence
adduced at trial to determine whether a reasonable jury could
find that H.S.’ conduct expressed a lack of consent.
(iv) Evidence Was Sufficient to Prove That H.S.’
Conduct Expressed Lack of Consent
We agree with the Court of Appeals that a reasonable jury
could find, on this record, that H.S. expressed a lack of con-
sent through her conduct. Evidence of her conduct prior to the
penetration included going into her private bathroom where
no males were allowed, shutting the door, lying on the floor
next to the toilet, and falling asleep face down while fully
clothed. During the entire time Mielak was in the bathroom,
including when he pulled down H.S.’ pants and digitally
penetrated her, Mielak could see that H.S.’ conduct did not
change—she remained face down on the floor, immobile, with
her eyes shut.
Mielak was aware of this series of acts and omissions, and
his own actions in response provide strong circumstantial
evidence that he understood H.S.’ conduct to be expressing
a lack of consent to sexual activity. Mielak waited until H.S.
was alone in the bathroom, then entered without speaking
while H.S. appeared to be either asleep or unconscious, and
he digitally penetrated her while she lay perfectly still on the
bathroom floor. Mielak’s tearful and apologetic reaction when
he learned that H.S. was aware of the penetration shows that
he understood H.S.’ conduct to be expressing a lack of consent
to sexual activity.
Although for slightly different reasons, we agree with the
Court of Appeals that on this record, a reasonable jury could
find that H.S. expressed a lack of consent through her conduct,
and that the State proved the theory that the sexual penetration
was “without the consent of the victim” under § 28-319(1)(a).
Mielak’s arguments to the contrary find no support in the appli-
cable law or the record.

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(b) Evidence That Mielak Knew or Should Have
Known H.S. Was “[M]entally or [P]hysically
[I]ncapable of [R]esisting” Under § 28-319(1)(b)
Before the Court of Appeals, Mielak argued the evidence
was insufficient, as a matter of law, to prove the State’s alter-
native theory that H.S. was “mentally or physically incapable
of resisting or appraising the nature” of his conduct under
§ 28-319(1)(b). Mielak acknowledged that he knew H.S. had
consumed a significant amount of alcohol in a short time
and that she was intoxicated to the point of being ill. But he
argued her testimony at trial showed that she was aware of the
penetration as it was occurring, that she was able to tell her
sister about the penetration shortly after it occurred, and that
she was able to recall and testify about the penetration at trial.
According to Mielak, this conclusively showed that despite
her intoxication, H.S. was mentally and physically capable of
resisting the sexual penetration, yet “[f]or whatever reason,
H.S. chose not to respond to the contact.” 40
The Court of Appeals rejected this argument, reasoning that
the evidence allowed the jury to “conclude that H.S. was so
intoxicated and ill as to be incapable of resisting or appraising
the nature of Mielak’s actions but still able to react afterward
and recall the assault.” 41
On further review, Mielak argues this was error. He con-
tends that on this record, no reasonable jury could find that
H.S.’ intoxication rendered her mentally or physically inca-
pable of resisting, because her testimony showed she had
the “ability to clearly recall and accurately communicate the
details of the incident” 42 and thus “demonstrated her complete
unimpaired capacity to respond” 43 to the sexual contact. We
also understand Mielak to argue that only intoxication “to the
40 Brief for appellant at 12.
41 Mielak, supra note 1, 33 Neb. App. at 323, 16 N.W.3d at 155.
42 Brief for appellant in support of petition for further review at 5.
43 Id.

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point of utter insensibility or stupefaction” 44 can support a
finding of incapacitation under § 28-319(1)(b).
We rejected similar arguments in State v. Npimnee. 45 In that
case, the victim testified that she consumed four or more alco-
holic drinks over several hours, and she estimated her level of
intoxication at an 8 or 9 on a 10-point scale. At approximately
2 a.m., she was sitting on a public bench waiting for a ride
when the defendant approached her. Sometime later, she real-
ized she was in the defendant’s vehicle, although she could not
recall how she got there. The victim recalled the defendant’s
opening the passenger door of his vehicle, unbuttoning her
shorts, and performing oral sex on her as she told him, “‘[N]o,
this isn’t happening.’” 46 When a police vehicle stopped behind
the defendant’s vehicle, the victim went to the officer and
reported the assault.
At trial, the jury in Npimnee was instructed under the
alternative theories that the defendant subjected the vic-
tim to sexual penetration either without her consent under
§ 28-319(1)(a) or when he knew or should have known that
the victim was mentally or physically incapable of resisting
under § 28-319(1)(b). The defendant objected to this alterna-
tive instruction, arguing the jury should not have been given
“contradictory theories of the case” 47 because the victim
could not both express a lack of consent and simultaneously
be incapable of consent. We rejected that argument, noting we
had long held that if there was evidence to support both theo-
ries, both were properly submitted to the jury. 48 We explained
in Npimnee:
[O]ur case law does not set forth some mythical level
of intoxication after which a person is considered to
44 Id. at 7.
45 Npimnee, supra note 3.
46 Id. at 3, 2 N.W.3d at 624.
47 Id. at 7, 2 N.W.3d at 626.
48 Npimnee, supra note 3, citing McCurdy, supra note 11.

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have a “significant abnormality” or to be “severe[ly]
intoxicat[ed]” sufficient to render the person incapable of
resisting for purposes of [§ 28-319(1)(b)]. A victim can
be . . . incapable of resisting or appraising the nature of
his or her conduct without suffering from an “abnormal-
ity” or “substantial mental or physical impairment,” like
“severe intoxication.”
Section 	28-319(1)(b) 	requires 	an 	“individualized
inquiry” into the victim’s capacity, and the evidence in
this case was sufficient for a jury to find that [the victim]
was so intoxicated as to be incapable of resisting [the
defendant’s] actions. 49
Npimnee makes it abundantly clear that an intoxicated vic-
tim can be mentally or physically incapable of resisting or
appraising the nature of the conduct under § 28-319(1)(b),
even though the victim was aware of the contact and able
to testify about it later. Here, it was a fact question for the
jury whether Mielak knew or should have known that H.S.’
level of intoxication rendered her mentally or physically
incapable of resisting, and we reject Mielak’s suggestion
that only intoxication “to the point of utter insensibility or
stupefaction” 50 can support a finding of incapacitation under
§ 28-319(1)(b).
Here, the evidence showed Mielak knew that H.S. was
intoxicated to the point of vomiting; knew that she was lying
motionless on the floor by the toilet, face down, with her
eyes closed; and knew that she did not move or react when
he pulled down her pants and digitally penetrated her. We
agree with the Court of Appeals that a reasonable jury could
conclude from this evidence that when Mielak digitally pen-
etrated H.S., he knew or should have known she was mentally
or physically incapable of resisting or appraising the nature
49 Npimnee, supra note 3, 316 Neb. at 9-10, 2 N.W.3d at 627-28.
50 Brief for appellant in support of petition for further review at 7.

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of his conduct under § 28-319(1)(b). Mielak’s second assign-
ment of error on further review lacks merit.
2. Jury Instruction
In his final assignment of error on further review, Mielak
argues the Court of Appeals erroneously “sidestepped” 51 his
challenge to the trial court’s refusal to give his proposed jury
instruction defining the statutory phrase “should have known.”
We disagree.
[9,10] To establish reversible error from a court’s refusal to
give a requested jury instruction, an appellant has the burden
to show that (1) the tendered instruction is a correct statement
of the law, (2) the tendered instruction was warranted by the
evidence, and (3) the appellant was prejudiced by the court’s
failure to give the requested instruction. 52 It is incumbent
upon an appellant to supply a record which supports his or
her appeal, and when a proposed instruction is not included
in the record on appeal, the appellate court has “‘no instruc-
tion to review in order to determine whether it ought to have
been given.’” 53
The Court of Appeals declined to consider Mielak’s chal-
lenge for two reasons. First, the proposed instruction was not
included in the appellate record. Alternatively, to the extent
Mielak was more generally challenging the inclusion of the
statutory phrase “knew or should have known” in the elements
instruction, the Court of Appeals concluded the language came
directly from § 28-319(1)(b) and “[i]n giving instructions to
the jury, it is proper for the court to describe the offense in the
language of the statute.” 54
51 Id. at 8.
52 State v. White, ante p. 1, 32 N.W.3d 256 (2026).
53 See State v. Custer, 292 Neb. 88, 100-01, 871 N.W.2d 243, 255 (2015),
disapproved on other grounds, State v. Hagens, 320 Neb. 65, 26 N.W.3d
174 (2025).
54 Mielak, supra note 1, 33 Neb. App. at 328, 16 N.W.3d at 158, citing State
v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018).

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The Court of Appeals was correct in both respects, and
Mielak’s third assignment of error warrants no additional dis-
cussion on further review.
V. CONCLUSION
For the foregoing reasons, we affirm the decision of the
Court of Appeals.
Affirmed.
Miller-Lerman, J., not participating in the decision.
Funke, C.J., not participating.