State v. Wood, 296 Neb. 738

Background

Robyn J. Wood, a shift manager at Boys Town (a state-contracted residential treatment facility), was charged and convicted by a jury of first-degree sexual assault of a protected individual under Neb. Rev. Stat. § 28-322.04(3) for a June 2014 sexual encounter with T.Z., a 17-year-old resident in state custody.
Key testimony: T.Z. said the sexual intercourse was mutual and that Wood never told him to stop (except when she received a text); Wood told a roommate she had sex with T.Z.; in a recorded interview Wood said she initially tried to push T.Z. off, told him to stop, later ceased resisting because she feared becoming a "statistic," and described confusion about consent.
Other evidence showed boundary issues and favoritism by Wood toward T.Z., and internal staff concerns; Wood had reported feeling uncomfortable and was advised not to be alone with T.Z.
The jury was instructed that to convict it must find Wood "subjected [T.Z.] to sexual penetration," with an instruction defining "subject" as "to bring under control or dominion." Neither party objected to that instruction at trial.
Wood moved for a new trial arguing insufficient evidence that she "subjected" T.Z. because he effectuated the penetration. She also sought to exclude evidence of attending Sexaholics Anonymous via a motion in limine; the record shows the motion was overruled but Wood did not object at trial when the evidence was admitted.
The district court denied the motion for new trial and sentenced Wood to probation; Wood appealed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Wood)	Held
Whether evidence was sufficient to show defendant "subjected" a protected individual to sexual penetration under § 28-322.04	"Subject" means to cause the person to undergo the sexual penetration; Wood participated, so she caused it	T.Z. was the aggressor who effectuated penetration; Wood did not exercise control or dominion and thus did not "subject" him	Affirmed: "subject" means "to cause to undergo the action of something specified"; evidence (victim, roommate, and Wood's own statements) supports conviction
Whether the district court abused discretion in denying Wood's motion for a new trial (verdict against evidence)	Evidence supported jury verdict; no substantial right violated	Verdict unsupported because penetration was effectuated by T.Z., not Wood	Denial affirmed: no prejudice and sufficient evidence supported conviction
Whether the jury instruction defining "subject" as "bring under control or dominion" was erroneous and prejudicial	Correct statutory meaning is broader; error harmless because jury convicted under narrower instruction	Instruction was legally incorrect and favored conviction	Instructional error harmless: jury still found guilt under the narrower definition and no substantial right was affected
Whether admission of evidence that Wood attended Sexaholics Anonymous was erroneous	Evidence was admitted without contemporaneous trial objection; issue not preserved for appeal	Motion in limine should have excluded this evidence; its admission was prejudicial	Not reviewed on appeal: defendant did not object at trial, so issue not preserved

Key Cases Cited

State v. Stricklin, 290 Neb. 542, 861 N.W.2d 367 (standard of review for denial of new trial)
State v. Dominguez, 290 Neb. 477, 860 N.W.2d 732 (standard for sufficiency of the evidence review)
State v. Kolbjornsen, 295 Neb. 231, 888 N.W.2d 153 (appellate review on statutory interpretation)
State v. Robbins, 253 Neb. 146, 570 N.W.2d 185 (statutory construction principles in penal statutes)
State v. Loyuk, 289 Neb. 967, 857 N.W.2d 833 (definition of "subject" as "to cause to undergo the action of something specified")
State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (harmless error in jury instructions)
State v. McHenry, 250 Neb. 614, 550 N.W.2d 364 (definition and application of harmless error in criminal jury trials)
State v. Faust, 269 Neb. 749, 696 N.W.2d 420 (standard for granting a new trial requires showing prejudice affecting a substantial right)
State v. Almasaudi, 282 Neb. 162, 802 N.W.2d 110 (preservation rule: motion in limine is not a final ruling; contemporaneous objection required)
State v. Sandoval, 280 Neb. 309, 788 N.W.2d 172 (presumption that a jury follows instructions)