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For criminal prosecutions brought under Neb. Rev. Stat. § 28-319(1)(a), the trial court must instruct the jury on the defense of consent when evidence is produced which, under all of the circumstances, could reasonably be viewed by the jury as an indication of affirmative and freely given consent to sexual penetration by the alleged victim. The focus remains on the accused's conduct in determining whether or not the accused has overcome the alleged victim, resulting in sexual penetration against his or her will.
Defendant was charged with first degree sexual assault under Neb. Rev. Stat. § 28-319(1)(a). His theory at trial was that he reasonably believed that the complainant had consented to sexual penetration and that he did not use force to overcome her beyond that normally employed when two consenting adults engage in sexual intercourse. Defendant’s counsel asked the trial court to instruct the jury with respect to the issue of consent. The trial court refused because, in its view, the lack of consent was not an element to be proved by the State. The court thought that allowing each side an opportunity to argue the issue of consent would be adequate. Defendant was convicted. The court of appeals affirmed the defendant’s conviction. The court granted defendant's petition for further review of his conviction.
Did the district court err by failing to instruct the jury in regard to defendant's theory of defense?
The court reversed the defendant’s conviction on the ground that the district court committed prejudicial error by failing to instruct the jury in regard to defendant's theory of defense. The district court was incorrect to conclude that the jury needed only to receive instructions over the elements of the offense and not defendant's theories of defense. Further, the court of appeals did not address the issue of whether an instruction concerning the theory of defense was merited when it denied defendant relief relying solely on its conclusion that defendant's proffered instructions were not a correct statement of law. Whether the totality of the circumstances reasonably indicated that the complainant affirmatively consented was question that should have been submitted to the jury.