State v. Mielak: “Conduct” Expressing Lack of Consent Includes Omissions and a Series of Acts/Omissions Under § 28-318(8)(a)(iii)

1. Introduction

In State v. Mielak, the Nebraska Supreme Court affirmed a first degree sexual assault conviction arising from the digital penetration of an intoxicated roommate, H.S., while she lay face down on a bathroom floor after vomiting and appearing asleep or unconscious. The case presented two recurring doctrinal disputes in Nebraska sexual assault prosecutions: (1) what qualifies as a victim’s “conduct” that can “express[] a lack of consent” under Neb. Rev. Stat. § 28-318(8)(a)(iii) (Cum. Supp. 2024), and (2) whether a victim’s awareness of penetration as it occurs necessarily defeats the State’s alternative theory that the victim was “mentally or physically incapable of resisting or appraising the nature” of the conduct under Neb. Rev. Stat. § 28-319(1)(b) (Reissue 2016).

The parties were the State of Nebraska (appellee) and Evan J. Mielak (appellant). Mielak did not dispute penetration; he contested consent and incapacity, and he challenged the refusal of a proposed jury instruction defining “should have known.”

2. Summary of the Opinion

Although the Supreme Court “reasoning differ[ed] somewhat” from the Court of Appeals, it affirmed the Court of Appeals’ decision and thus the conviction and sentence.

3. Analysis

3.1 Precedents Cited

A. Sufficiency of the evidence framework

• State v. Vazquez, 319 Neb. 192, 21 N.W.3d 615 (2025): The court reaffirmed the standard that, viewing evidence in the light most favorable to the prosecution, the question is whether any rational trier of fact could find the elements beyond a reasonable doubt. Mielak applied this lens to both statutory theories under § 28-319(1).

B. Alternative-theory charging and general verdicts

• State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018): Central to two aspects of Mielak. First, it framed § 28-318(8)(a) as providing four alternatives for proving “without consent,” requiring the State to prove one of them. Second, it supported the principle that when a defendant is charged under alternative theories of the same offense, a conviction stands if the evidence supports either theory.
• State v. Npimnee, 316 Neb. 1, 2 N.W.3d 620 (2024): Reinforced that “without consent” and “incapable of resisting” are two distinct ways of committing the same offense, and where evidence supports both, both may be submitted to the jury. Mielak relied on Npimnee to reject the argument that a victim’s awareness and later memory necessarily negates incapacity.
• State v. Eagle Bull, 285 Neb. 369, 827 N.W.2d 466 (2013) and Griffin v. United States, 502 U.S. 46 (1991): Cited (via Npimnee) for the permissibility of general verdicts where jurors need not unanimously agree on which alternative means was proved so long as they unanimously find the element satisfied under one of the alternatives.
• State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014): Supported affirmance where evidence suffices on any one of multiple theories.

C. Statutory interpretation principles used to define “conduct”

• State v. Weber, 320 Neb. 934, 31 N.W.3d 229 (2026): Provided the court’s statement of interpretive method—effectuate legislative intent from the whole statute; do not read into or out of statutory text. Mielak used this approach to reject limits not found in § 28-318(8)(a)(iii).
• Brown v. State, 315 Neb. 336, 996 N.W.2d 56 (2023): Reaffirmed giving undefined terms their plain and ordinary meaning—though Mielak ultimately found “conduct” was defined in the Criminal Code.
• Neb. Rev. Stat. § 28-109 (Reissue 2016) and Heiden v. Norris, 300 Neb. 171, 912 N.W.2d 758 (2018): Mielak treated § 28-109(5)’s definition (“action or omission ... or ... a series of acts and omissions”) as controlling for § 28-318(8)(a)(iii), and cited Heiden for how the “unless the context otherwise requires” clause functions. This was the doctrinal pivot: it displaced reliance on dictionary definitions and anchored “conduct” in the Criminal Code’s own definition.

D. Prior “conduct/inaction” consent jurisprudence (supporting the new articulation)

• State v. Prado, 30 Neb. App. 223, 967 N.W.2d 696 (2021): A factually similar digital-penetration-while-sleeping case where the victim did not resist because she was “half-asleep/half-awake.” Mielak used Prado to show Nebraska courts consider circumstances before and during the sexual act when evaluating whether lack of consent was expressed through conduct.
• State v. Gangahar, 9 Neb. App. 205, 609 N.W.2d 690 (2000): Particularly important because the Supreme Court had adopted the Court of Appeals’ opinion “in its entirety.” Mielak quoted Gangahar for the framing that the consent inquiry can turn on the victim’s “words, actions, or inaction,” reinforcing that inaction can be legally meaningful.
• State v. Alvarado, 27 Neb. App. 334, 931 N.W.2d 463 (2019) and State v. Moeller, 1 Neb. App. 1046, 510 N.W.2d 500 (1993): Cited as additional support that penetration while a victim is sleeping can satisfy “without consent,” and that sleep may also relate to incapacity under § 28-319(1)(b).

E. Jury instruction review and preservation

• State v. Molina, 271 Neb. 488, 713 N.W.2d 412 (2006) and State v. Anderson, 269 Neb. 365, 693 N.W.2d 267 (2005): Supplied the rule that correctness of jury instructions is a question of law reviewed independently.
• State v. White, 321 Neb. 1, 32 N.W.3d 256 (2026): Provided the three-part test to show reversible error for refusal to give a requested instruction (correct statement of law; warranted by evidence; prejudice).
• State v. Custer, 292 Neb. 88, 871 N.W.2d 243 (2015), disapproved on other grounds by State v. Hagens, 320 Neb. 65, 26 N.W.3d 174 (2025): Supported the strict record requirement: if the proposed instruction is not included in the appellate record, there is nothing to review.
• State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018): Supported the proposition that it is proper to describe the offense in the language of the statute—relevant to the “knew or should have known” phrasing in § 28-319(1)(b).

3.2 Legal Reasoning

A. The court’s new, text-anchored construction of “conduct” under § 28-318(8)(a)(iii)

The primary doctrinal contribution of Mielak is its explicit holding that, for purposes of expressing lack of consent through “conduct” under § 28-318(8)(a)(iii), “conduct” carries the Criminal Code definition in § 28-109(5): an “action or omission” and, where relevant, “a series of acts and omissions.” The court rejected two limitations urged by Mielak: (1) that “conduct” must be “active” (so inaction could not express lack of consent), and (2) that only “real time” conduct tied to the “direct sexual contact” counts.

Instead, by importing § 28-109(5), the court made three interpretive moves:

• Code-wide definitional primacy: When the Legislature defines terms for the Nebraska Criminal Code, courts apply those definitions unless context requires otherwise.
• Context compatibility: The term “conduct” in § 28-318(8)(a)(iii) appears in the same criminal-code context as the § 28-109(5) definition; the court found no contextual reason to depart from the definition.
• Temporal breadth: Because “conduct” can be a “series” of acts/omissions, the jury may consider behavior leading up to and surrounding the assault, not merely the victim’s immediate physical response at the moment of penetration.

B. Application to the facts: “series of acts and omissions” as communicated nonconsent

Applying the newly clarified definition, the court held a rational jury could find H.S. expressed nonconsent through conduct, including: entering a private bathroom where males were not allowed, shutting the door, lying down next to the toilet, falling asleep face down and fully clothed, and remaining immobile with eyes shut throughout the assault. The opinion emphasized not only H.S.’ conduct but also Mielak’s knowledge of it and the circumstantial inference of his understanding—e.g., waiting until she was alone, entering without speaking while she appeared asleep/unconscious, and his later tearful apologies once he understood she had been aware.

C. Incapacity under § 28-319(1)(b) despite awareness during penetration

On the alternative theory, the court relied heavily on State v. Npimnee to reject a categorical rule that awareness and later recall defeat incapacity. Mielak reiterated two principles:

• No “mythical” intoxication threshold: The statute does not require intoxication “to the point of utter insensibility or stupefaction.”
• Individualized inquiry: The question is whether the victim’s actual condition rendered them mentally or physically incapable of resisting or appraising, and whether the defendant knew or should have known that.

Here, the evidence that H.S. had rapidly consumed multiple drinks, was vomiting, and lay motionless with eyes closed while not reacting to pants being pulled down and penetration, permitted the jury to find incapacity and that Mielak knew or should have known of it—even if H.S. became aware in the moment and could later report and recall.

D. Jury instruction issue: record preservation as dispositive

The court resolved the proposed-instruction claim chiefly on procedure: the instruction’s text was not in the appellate record, precluding review under State v. Custer. As an alternative basis, it agreed with the Court of Appeals that tracking statutory language (“knew or should have known”) is generally proper (State v. Swindle), absent an adequate record and argument showing why a definitional instruction was both legally required and prejudicially omitted.

3.3 Impact

A. Consent litigation: broader evidentiary field for “conduct”

The decision expressly authorizes juries (and trial courts, in deciding whether a submissible case exists) to treat “conduct” as potentially encompassing:

• inaction (e.g., freezing, nonresponse, immobility) as a communicative fact;
• pre-assault and surrounding circumstances as part of a “series of acts and omissions” relevant to consent;
• contextual cues (privacy boundaries, location, closed doors, sleep/appearance of unconsciousness) as part of the “conduct” analysis.

Practically, this makes the “lack of consent through conduct” option in § 28-318(8)(a)(iii) more robust in cases where verbal refusal is absent and the victim’s response is constrained by fear, intoxication, sleep, shock, or “freeze” reactions.

B. Incapacity litigation: awareness and recall are not dispositive

The court’s reaffirmation of Npimnee reduces the force of a common defense theme—“if the victim can describe it, the victim could resist.” After Mielak, the legally relevant question remains functional capacity at the time (and defendant’s knowledge), not a binary of total blackout vs. total capacity. This is especially significant for alcohol-facilitated assaults where memory can be fragmented but not absent.

C. Trial practice: instruction preservation and appellate record discipline

On jury instructions, Mielak underscores that even potentially substantial mens rea disputes can be lost on appeal if counsel fails to ensure the proposed instruction is included in the record. This portion of the opinion reinforces Nebraska’s strict preservation norms: appellate courts will not reconstruct the proposed language from argument alone.

4. Complex Concepts Simplified

• “Without consent” (Neb. Rev. Stat. § 28-318(8)): The statute lists four alternative ways to prove “without consent” in subsection (a) (force/threat/coercion; words; conduct; deception). Subsections (b) and (c) explain what level of resistance is needed and when resistance is not required because it would be futile.
• “Conduct”: After Mielak, “conduct” in this setting is not limited to active resistance. It can include omissions (not moving, not speaking) and can be assessed as a series of behaviors over time, not a single instantaneous act.
• “Mentally or physically incapable of resisting or appraising” (§ 28-319(1)(b)): This is about practical ability in the moment to resist or understand/evaluate what is happening, and whether the defendant knew or should have known that condition existed. The victim’s later ability to remember does not automatically resolve the question.
• “Knew or should have known”: This includes actual knowledge and constructive knowledge inferred from circumstances (what a reasonable person in the defendant’s position would recognize). Mielak did not decide a detailed mens rea definition dispute because the proposed instruction was missing from the record.
• Alternative means + general verdict: First degree sexual assault can be proved by different statutory routes (without consent; incapacity). Jurors need not agree on which route so long as they unanimously find the element proved under at least one.

5. Conclusion

State v. Mielak establishes a clear, code-based rule that “conduct” expressing lack of consent under § 28-318(8)(a)(iii) includes both actions and omissions and may be evaluated as a series of acts and omissions—broadening the legally relevant context beyond “active” or “real-time” resistance. The opinion also reinforces that intoxication-based incapacity under § 28-319(1)(b) is an individualized, functional inquiry that is not negated simply because the victim was aware during the assault and could later recall it. Finally, it serves as a cautionary procedural precedent: requested jury instructions must be preserved in the appellate record, or the claim will fail regardless of its theoretical merits.