State v. Garcia, 974 N.W.2d 305

Background

On July 17–18, 2019, P.H. fell asleep at defendant Nicholas Garcia’s home after drinking and smoking marijuana; he was initially fully clothed and later awoke naked on a different couch with his penis in Garcia’s mouth.
P.H. testified he did not consent, left immediately, and then reported the incident to police; P.H. had limited recollection and evidence suggested significant inebriation (urination, unawakenable sleep, clothing removed).
Garcia initially denied, then admitted during police interview that he performed fellatio on P.H.
Garcia was charged with first-degree sexual assault under Neb. Rev. Stat. § 28-319(1) (sexual penetration without consent or when victim incapable) and convicted by a jury; sentenced to 2–4 years.
On appeal Garcia argued (1) fellatio by a defendant on a victim whose penis is placed in the defendant’s mouth is not “sexual penetration” under the statute and (2) the State failed to prove lack of consent or incapacity; he also challenged the refusal to give his proposed instruction defining fellatio.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendant’s act constituted "sexual penetration" under § 28-319(1)	State: fellatio is listed/covered by the statutory definition of sexual penetration.	Garcia: statutory text refers to intrusion into the victim’s genital or anal openings; here the victim’s penis was in Garcia’s mouth, so Garcia did not penetrate the victim.	Court: fellatio is sexual penetration under the statute; no textual or precedential basis to exclude defendant-performed fellatio.
Whether evidence proved lack of consent or that victim was incapable (or that defendant knew/should have known)	State: P.H. testified he did not consent and was asleep/inebriated; circumstantial facts support incapacity and that Garcia knew or should have known.	Garcia: P.H. never verbally said "no," may have shown nonverbal consent, and witnesses said P.H. was not drunk.	Court: viewing evidence in State’s favor, sufficient evidence of lack of consent or incapacity/knowledge; jury could reasonably find guilt beyond a reasonable doubt.
Whether the trial court erred by refusing defendant’s proposed instruction defining fellatio	State: the jury was properly instructed using the standard NJI language consistent with the statutory definition of penetration.	Garcia: requested instruction would define fellatio as defendant engaging the victim’s mouth with defendant’s penis and should have been given.	Court: refused instruction was incorrect as a statement of law; the given instruction (NJI2d Crim. 4.6 language) correctly defined penetration and was not prejudicial.

Key Cases Cited

State v. Davis, 310 Neb. 865 (2022) (standard for sufficiency-of-the-evidence review in criminal cases)
State v. Clausen, 307 Neb. 968 (2020) (standards for jury instructions and reversible-error analysis)
State v. Gonzales, 219 Neb. 846 (1985) (discussed fellatio and treated forced fellatio as penetration under the statute)
State v. Nadeem, 284 Neb. 513 (2012) (arguments not raised below or in briefing are waived)
State v. Lavalleur, 289 Neb. 102 (2014) (preference for using applicable Nebraska Jury Instructions in criminal cases)