S-24-0064 State of Nebraska (Appellee) v. Evan J. Mielak (Appellant)
Appeal from the Nebraska Court of Appeals on appeal from the District Court for Lancaster County, Judge Kevin R. McManaman
Attorneys: Robert B. Creager (Anderson, Creager & Wittstruck, P.C., LLO for Appellant) and Jordan Osborne (Asst. Attorney General for Appellee)
Criminal: First-degree sexual assault
Proceedings Below: A jury convicted Appellant of first-degree sexual assault, and he was sentenced to four (4) to eight (8) years in prison. On appeal, he argued that there was insufficient evidence for the jury to convict him and that the district court erred when it overruled his objection to a jury instruction. The Nebraska Court of Appeals affirmed in State v. Mielak, 33 Neb.App. 309, 16 N.W.3d 143 (2025). Appellant petitioned for further review, which the Nebraska Supreme Court sustained and ordered that this case be transferred to its docket.
Issues: In his petition for further review, Appellant assigns the following errors: 1) The Court of Appeals Erred in concluding that the record evidence was sufficient to support the conviction; 2) The Court of Appeals erred in concluding that H.S. expressed a lack of consent by words or conduct, sufficient to place Appellant on notice that the sexual contact was unwanted; 3) The Court of Appeals erred in finding that other factors not related to the sexual contact and not directed by H.S. to Appellant were sufficient conduct to establish her lack of consent; 4) The Court of Appeals erred in concluding that expressing a lack of consent does not require an active expression; 5) The Court of Appeals erred in concluding that the evidence was sufficient to establish the H.S. was not capable of expressing her lack of consent; and 6) The Court of Appeals erred in not sustaining Appellant’s objection to jury instruction No. III.