948 N.W.2d 306
Neb. Ct. App.2020Background
- Victim A.N., age 17 at the time, became heavily intoxicated at a party and, with her mother’s permission, went to Jesse Barber’s home to sleep.
- An officer briefly checked on A.N. at Barber’s house, found her intoxicated and awake, then left after a few minutes; A.N. has no memory of the overnight hours.
- The next morning A.N. found blood on the sheets and Barber told her he had performed oral sex; Barber showed A.N. naked photos of her on his phone and later deleted them at her request.
- Barber's out-of-court admission to A.N. that he performed oral sex was corroborated by his in-court testimony conceding penetration (judicial admission) and by circumstantial evidence (photos, blood, witness observations of A.N.’s extreme intoxication).
- Barber was tried by jury, convicted of first-degree sexual assault (penetration when victim was incapable of resisting or appraising due to intoxication), sentenced to 10–12 years, and appealed.
Issues
| Issue | State's Argument | Barber's Argument | Held |
|---|---|---|---|
| Sufficiency / corpus delicti (denial of new trial) | Extrajudicial admission plus corroborating circumstantial evidence and Barber’s in‑court testimony sufficiently prove penetration and corpus delicti. | Only admission (extrajudicial) alleged; lacking independent corroboration of penetration, corpus delicti not proved. | Affirmed. Barber’s in-court testimony was a judicial admission of penetration and, together with circumstantial evidence, corroborated the corpus delicti; no abuse of discretion in denying new trial. |
| Jury instruction: inclusion of “without consent” when theory was incapacity | Instruction language tracked statute; presenting both statutory theories was permissible. | No evidence supported non‑consent theory; including “without consent” created ambiguity and prejudice. | Court found plain error in including “without consent,” but error was harmless because the parties and evidence repeatedly framed the case as incapacity to consent, so jury was not misled. |
| Jury instruction: failure to state burden never shifts to defendant | Jury was instructed on presumption of innocence and State’s burden beyond a reasonable doubt. | Omission might lead jurors to think burden shifted to Barber to prove consent. | Held no prejudice; instructions and admonitions made the burden clear and presumption applies. |
| Ineffective assistance of counsel claims | N/A (State argued most claims cannot be resolved on record). | Trial counsel failed to investigate, call or impeach witnesses, perform voir dire, obtain evidence, and failed to object to instructions. | Most claims not adjudicated on direct appeal because the trial record is insufficient; only failure-to-object claim was resolved (no prejudice). Remaining claims preserved for postconviction review if properly raised. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two‑prong ineffective assistance standard)
- State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (Neb. 2019) (ambiguous jury instruction harmless when context and arguments clarify meaning)
- State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (Neb. 2014) (standard for reviewing ineffective assistance claims on appeal)
- State v. Rossbach, 264 Neb. 563, 650 N.W.2d 242 (Neb. 2002) (incapacity-to-resist analysis requires a significant abnormality such as severe intoxication and knowledge by actor)
- Hoffman v. State, 160 Neb. 375, 70 N.W.2d 314 (Neb. 1955) (confessions/admissions competent and may be corroborated to establish corpus delicti)
- Limmerick v. State, 120 Neb. 558, 234 N.W. 98 (Neb. 1931) (confession may be considered with other evidence to establish corpus delicti)
- Anderson v. Cumpston, 258 Neb. 891, 606 N.W.2d 817 (Neb. 2000) (judicial admission substitutes for evidence and waives right to deny the admitted fact)
- State v. Torwirt, 9 Neb. App. 52, 607 N.W.2d 541 (Neb. Ct. App. 2000) (corpus delicti may be proved by circumstantial evidence)