State v. Npimnee, 316 Neb. 1

Hope T. Npimnee was convicted of first degree sexual assault in Nebraska and sentenced to 35-40 years’ imprisonment after an incident involving S.M., who reported being sexually assaulted while intoxicated.
S.M. testified she consumed several alcoholic drinks, rated her intoxication as high, had memory gaps, and reported non-consensual sexual contact by Npimnee while in his vehicle.
DNA evidence and blood alcohol testing corroborated S.M.’s presence and intoxication; police arrived and S.M. immediately reported the assault.
Npimnee first denied sexual contact but later admitted some sexual contact, claiming to have ceased when S.M. said "no."
At trial, there was conflicting evidence regarding the exact nature of the acts and consent, with S.M. impeached by her own prior inconsistent statements.
Npimnee appealed his conviction, raising issues with jury instructions, sufficiency of intoxication evidence, cross-examination limits, lack of jury instruction on consent, and ineffective assistance of counsel.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Alternative Jury Theories	Jury instructed on two contradictory theories (consent/incapacity)	Both theories supported by evidence; distinct offense means	Instructions were correct if supported by evidence
Jury Instruction – Intoxication	No evidence S.M. was severely intoxicated	Sufficient evidence of incapacity due to intoxication	Sufficient evidence supported incapacity instruction
Failure to Instruct on Consent	Jury was not instructed on defense of consent	Statute now includes lack of consent as element, so no need	No error; consent elements covered in jury instructions
Cross-Examination	Court restricted impeachment with prior inconsistent statements	S.M. impeached on cross; further evidence cumulative	No error; further extrinsic evidence not needed
Ineffective Assistance of Counsel	Trial counsel was ineffective (non-specific allegation)	Assignments not specific; no preserved error	Not preserved for review, assignments too general

State v. Esch, 315 Neb. 482 (2023) (standard for reviewing jury instructions)
State v. Miller, 312 Neb. 17 (2022) (standard for sufficiency of the evidence)
State v. Warner, 312 Neb. 116 (2022) (review of ineffective assistance of counsel on direct appeal)
State v. McCurdy, 301 Neb. 343 (2018) (alternative theories of sexual assault as distinct ways of committing one offense)
State v. Rossbach, 264 Neb. 563 (2002) (victim can be incapable of consent without severe impairment)
State v. Dady, 304 Neb. 649 (2019) (capacity to resist must be individualized inquiry)
State v. Koperski, 254 Neb. 624 (1998) (instruction of consent defense applies under prior law)
State v. Johnson, 220 Neb. 392 (1985) (when a witness admits prior inconsistent statement, no further extrinsic evidence needed)
State v. Mrza, 302 Neb. 931 (2019) (ineffective assistance of counsel must be specifically alleged on direct appeal)