Background
In April 2023, Evan Mielak was living in a shared apartment with his roommate H.S. and others. After a drinking game, H.S. became severely intoxicated and retreated to the bathroom — an area the male roommates had agreed was off-limits to them. She fell asleep face down on the floor next to the toilet. H.S.’s sister checked on her, left the bathroom door closed, and explicitly reminded Mielak he was not permitted in that bathroom before walking away to take a phone call. Mielak entered the bathroom, pulled down H.S.’s pants, and digitally penetrated her. H.S. testified she was aware of the assault as it was occurring but “froze up” out of fear, never speaking, moving, or opening her eyes. After the assault Mielak told roommates he had “inappropriately touched” H.S., described himself as a “horrible person” and a “monster” in a recorded call arranged by law enforcement, and moved out of the apartment at H.S.’s request.
Mielak was charged in Lancaster County District Court with first-degree sexual assault under Neb. Rev. Stat. § 28-319(1) under two alternative theories: (a) penetration without the victim’s consent, and (b) penetration when Mielak knew or should have known H.S. was mentally or physically incapable of resisting or appraising the nature of his conduct. He did not dispute at trial that penetration occurred but argued the State failed to prove either theory. The jury returned a general guilty verdict, and the district court sentenced him to 4 to 8 years’ imprisonment. The Nebraska Court of Appeals affirmed, and Mielak petitioned for further review on two statutory questions.
The Nebraska Supreme Court granted further review specifically to address: (1) what type of conduct can constitute a victim’s expression of lack of consent under § 28-318(8)(a)(iii), and (2) whether a victim who was aware of the penetration as it occurred could still be found “mentally or physically incapable of resisting or appraising” the nature of the conduct under § 28-319(1)(b).
The Court’s Holding
The Nebraska Supreme Court affirmed Mielak’s conviction, though on reasoning that differed in part from the Court of Appeals. On the central statutory question, the court held that the term “conduct” in § 28-318(8)(a)(iii) — the provision defining one means of expressing lack of consent — carries the same meaning as the Nebraska Criminal Code’s general definition in § 28-109(5): “an action or omission and its accompanying state of mind, or, where relevant, a series of acts and omissions.” Accordingly, a victim’s conduct expressing lack of consent is not limited to active resistance directed at the specific sexual contact in real time; it may consist of both actions and omissions, and may include a course of behavior occurring before the assault itself.
Applying that definition to the evidence, the court found sufficient support for the jury’s verdict under the “without consent” theory. H.S.’s conduct throughout the evening — retreating alone to a private bathroom restricted to females, closing the door, and lying unconscious or asleep fully clothed on the floor — constituted a series of acts and omissions from which a rational jury could find she expressed a lack of consent to sexual contact. The court also noted that H.S.’s freezing during the assault was itself a form of conduct (an omission driven by fear) consistent with the statutory definition. Because the evidence was sufficient under the without-consent theory, the court declined to resolve the second statutory question regarding the “incapable of resisting or appraising” theory, though it addressed both for completeness as the Court of Appeals had done.
On the jury instruction issue, the court found no reversible error. Mielak had objected to the instruction’s use of the phrase “should have known” without a separate definition of criminal negligence, but his proposed alternative instruction was never included in the appellate record. Because the court had no proposed instruction to review, it could not find the district court erred in declining to give it.
Key Takeaways
- Under Nebraska law, a victim’s “conduct” expressing lack of consent (§ 28-318(8)(a)(iii)) is defined by the Nebraska Criminal Code’s general definition and encompasses both actions and omissions — including a series of acts and omissions occurring before as well as during the sexual contact at issue.
- Passive behavior, freezing, or pre-assault conduct (such as retreating to a private space, closing a door, and lying unconscious) can collectively constitute conduct expressing lack of consent; the statute does not require active physical or verbal resistance in real time.
- A defendant challenging a refused jury instruction on appeal must include the proposed instruction in the appellate record; without it, no appellate review is possible.
- When a defendant is charged under alternative theories and a general verdict is returned, affirmance is warranted if the evidence suffices under any one of those theories.
Why It Matters
This decision resolves a question of first impression in Nebraska: what kinds of victim behavior can constitute conduct expressing lack of consent under the state’s sexual assault statutes. By anchoring “conduct” to the Nebraska Criminal Code’s own definition — which expressly includes omissions and series of acts — the court rejects arguments that only active, real-time resistance during the specific sexual contact qualifies. The ruling aligns Nebraska with a common-sense understanding that consent is communicated by the totality of circumstances, not solely by in-the-moment verbal or physical refusal.
For practitioners, the decision clarifies that prosecutors may present evidence of a victim’s behavior across a course of events to satisfy the “expressed lack of consent through conduct” element, and that the statutory provision does not impose a duty on victims to actively resist assault. The opinion also reinforces the appellate record requirements for preserved jury instruction challenges, underscoring that a proposed instruction must appear in the record for an appellate court to evaluate whether its exclusion was error.