State v. Bershon , 313 Neb. 153 ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
01/06/2023 09:04 AM CST
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Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. BERSHON
Cite as 313 Neb. 153State of Nebraska, appellee, v.
Paul D. Bershon, appellant.
___ N.W.2d ___
Filed January 6, 2023. No. S-21-656.
1. Convictions: Evidence: Appeal and Error. Regardless of whether
the evidence is direct, circumstantial, or a combination thereof, and
regardless of whether the issue is labeled as a failure to direct a verdict,
insufficiency of the evidence, or failure to prove a prima facie case, the
standard is the same: In reviewing a criminal conviction, an appellate
court does not resolve conflicts in the evidence, pass on the credibility
of witnesses, or reweigh the evidence; such matters are for the finder
of fact, and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed most favor-
ably to the State, is sufficient to support the conviction.
2. Indictments and Informations: Pleadings. Objections to the form or
content of an information should be raised by a motion to quash.
3. Pleas: Indictments and Informations: Waiver. When a defendant
enters a plea in a case, he or she waives objections to all defects in
an information that can be reached by a motion to quash, except those
defects which are of such a fundamental character as to make the indict-
ment wholly invalid.
4. Constitutional Law: Appeal and Error. A constitutional issue not
presented to or passed upon by the trial court is not appropriate for con-
sideration on appeal.
5. Convictions: Evidence: Appeal and Error. When a defendant is
charged in alternative ways with committing an offense, the jury can
convict if it finds there is sufficient evidence of either alternative, and
thus the judgment of conviction must be affirmed if the evidence is suf-
ficient to support either of the State’s alternative theories of guilt.
6. Sexual Assault: Words and Phrases. “Coercion” in Neb. Rev. Stat.
§ 28-318(8)(a)(i) (Reissue 2016) includes nonphysical force.
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STATE V. BERSHON
Cite as 313 Neb. 153Appeal from the District Court for Washington County:
John E. Samson, Judge. Affirmed.
Michael J. Wilson, of Berry Law Firm, for appellant.
Douglas J. Peterson, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Paul D. Bershon appeals his 19 convictions in the district
court for Washington County consisting of 13 counts of first
degree sexual assault, 3 counts of incest, and 3 counts of
intentional abuse of a vulnerable adult. Bershon claims that
his convictions for 17 of the 19 counts violate his due process
rights, because he was not provided adequate notice of the
charges against him and because the multiple convictions sub-
jected him to double jeopardy. Bershon also claims that there
was not sufficient evidence to support his 13 convictions for
first degree sexual assault, because the State did not show that
the victim was mentally incapable of resisting or appraising
the nature of sexual conduct or that she had expressed a lack
of consent in an observable manner. He further claims that
there was not sufficient evidence to support his three convic-
tions for intentional abuse of a vulnerable adult, because the
State did not show that the victim was sexually abused. We
affirm Bershon’s convictions.
STATEMENT OF FACTS
The operative information in this case charged Bershon with
13 counts of first degree sexual assault, 3 counts of incest, and
3 counts of intentional abuse of a vulnerable adult. The victim,
with respect to each charge, was Bershon’s stepdaughter, B.B.,
who is intellectually disabled.
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STATE V. BERSHON
Cite as 313 Neb. 153B.B. was born in late December 1990, when her mother, Pam
Leman, was married to B.B.’s father. B.B.’s parents divorced a
few years later, and Leman married Bershon in 2000. Leman
and Bershon had two children together, born in 2001 and 2002,
respectively. The family, including Leman, Bershon, B.B., and
the two younger children moved to a home in Blair, Nebraska,
in 2006.
The investigation that led to the charges against Bershon
began on May 21, 2018, when Leman reported to law enforce-
ment that on May 16, she had walked into the kitchen of the
family home and found B.B. being sexually abused by Bershon.
Law enforcement officers interviewed B.B. about the May 16
incident, and in later interviews, B.B. reported that Bershon
had been sexually abusing her over a period of years beginning
in 2006 when they moved to the house in Blair.
In the original complaint filed in the county court on March
12, 2021, and in the original information filed in the dis-
trict court on March 30, the State charged Bershon with 13
counts of first degree sexual assault, 3 counts of incest, and
10 counts of intentional abuse of a vulnerable adult. Bershon
filed a motion to quash in which he asserted that seven counts
of intentional abuse of a vulnerable adult that were charged
as having occurred in 2015 and prior years were time barred
under the 6-year statute of limitations for the offense as set
forth in Neb. Rev. Stat. § 29-110(9) (Reissue 2016). In the
motion to quash, Bershon made no allegations regarding due
process, double jeopardy, or lack of notice, and he did not
move to quash any counts other than the seven counts of inten-
tional abuse of a vulnerable adult.
The district court granted the motion to quash and ordered
the six counts of intentional abuse of a vulnerable adult related
to the years 2009 through 2014 dismissed with prejudice, but
the court allowed the State time to amend the count related
to the year 2015 to the extent it could be amended to allege
an offense occurring on or after March 12, 2015. In response,
the State amended the information to allege four counts of
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STATE V. BERSHON
Cite as 313 Neb. 153intentional abuse of a vulnerable adult, including one alleged to
have occurred between March 12 and December 31, 2015, but
it later further amended the information to omit that count and
to allege only three counts of intentional abuse of a vulnerable
adult related to the years 2016, 2017, and 2018, respectively.
Those three counts went to trial.
In the operative information, the State alleged 13 counts
of first degree sexual assault in violation of Neb. Rev. Stat.
§ 28-319 (Reissue 2016), which provides in relevant part that
one commits first degree sexual assault if one “subjects another
person to sexual penetration (a) without the consent of the vic-
tim, [or] (b) who knew or should have known that the victim
was mentally or physically incapable of resisting or appraising
the nature of his or her conduct.” In each of the 13 counts, the
State alleged that Bershon had subjected B.B. to “sexual pene­
tration: (a) without the consent of the victim, (b) who knew or
should have known that the victim was mentally or physically
incapable of resisting or appraising the nature of his or her
conduct.” In the first 12 of the 13 counts of first degree sexual
assault, the State alleged that the offense occurred on or about
January 1 through December 31 of each of the years from 2006
through 2017, respectively. In the 13th count, the State alleged
that the offense occurred “[o]n or about May 16, 2018.”
The State also charged three counts of incest in violation of
Neb. Rev. Stat. § 28-703 (Reissue 2008), which, prior to 2015,
provided that one commits incest if one “engages in sexual
penetration with his or her minor stepchild.” In each of the
three counts of incest in the operative information, the State
alleged that Bershon had “engaged in sexual penetration with
his . . . minor stepchild.” The first two counts were alleged
to have occurred between January 1 and December 31 in the
years 2006 and 2007, respectively. The third count was alleged
to have occurred between January 1 and December 25, 2008.
B.B. turned 18 years old in late December 2008.
The State finally charged three counts of intentional abuse
of a vulnerable adult in violation of Neb. Rev. Stat. § 28-386- 157 -
Nebraska Supreme Court Advance Sheets
313 Nebraska Reports
STATE V. BERSHON
Cite as 313 Neb. 153(Reissue 2016), which provides in relevant part that a “person
commits knowing and intentional abuse . . . of a vulnerable
adult . . . if he or she through a knowing and intentional act
causes or permits a vulnerable adult . . . to be: (a) Physically
injured; [or] (c) Sexually abused.” In each of the three counts
of intentional abuse of a vulnerable adult in the operative infor-
mation, the State alleged that Bershon had “through a knowing
and intentional act, cause[d] or permit[ted] a vulnerable adult
to be (a) physically injured; (c) sexually abused.” The first two
counts of intentional abuse of a vulnerable adult were alleged
to have occurred between May 1 and December 31, 2016, and
between January 1 and December 31, 2017, respectively, and
the third count was alleged to have happened “[o]n or about
May 16, 2018.”
At the jury trial, the State presented evidence including,
inter alia, testimony by Leman, by B.B., by law enforcement
officers who investigated the charges against Bershon, and by
professionals who had evaluated or counseled B.B. The law
enforcement officers generally testified that on May 21, 2018,
Leman had reported an incident involving Bershon and B.B.
that had occurred on May 16, and that in later interviews,
B.B. reported incidents that had occurred over a period of
years prior to that date.
Leman first testified regarding general family matters,
including her prior marriage to B.B.’s father, B.B.’s birth in
December 1990, her marriage to Bershon in 2000, the birth of
their two children in 2001 and 2002, and the family’s move to
Blair in 2006. Leman’s testimony then focused on B.B., and
Leman described her as having “an eight- or nine-year-old
mentality in a young woman’s body.” Leman described physi-
cal and medical issues that B.B. had that were apparent since
birth. Leman testified that around the time B.B. was to start
school, Leman became aware that B.B. had certain cognitive
or intellectual disabilities and she held B.B. back from starting
school for a year. When B.B. started school, it was determined
that she could not be in the main classroom; instead, she was
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STATE V. BERSHON
Cite as 313 Neb. 153placed into a special needs program, where she remained
through her entire school career. B.B. was subject to an indi-
vidualized education plan.
Leman testified that B.B. was not diagnosed with a spe-
cific intellectual disability, but that she was determined to
be learning disabled and was expected to remain at the same
level of functioning through her life. Leman also testified that
B.B. qualified to receive benefits from the Social Security
Administration based on an intellectual disability. Leman testi-
fied that as an adult, B.B. was still not capable of living alone
and could not perform functions such as driving a car, operat-
ing an oven, balancing a checkbook, or shopping for groceries.
Leman testified that if she or other family members were no
longer able to care for B.B., B.B. would need to live in some
type of care facility.
Leman’s testimony then focused on the events of May 16,
2018. Leman testified that her normal morning routine was
that she would shower and then stay in the bathroom to fin-
ish getting ready and dressed. But that morning, after she
finished showering, Leman walked down the hallway to tell
Bershon something. When she walked into the kitchen, she
saw Bershon standing in a corner of the kitchen with his robe
open and wearing nothing underneath the robe. B.B. was bent
over in front of Bershon facing him and with her head at his
waist level. When B.B. heard Leman entering the kitchen, she
jumped up startled and ran to her bedroom. Leman saw that
Bershon had an erection, and Bershon immediately closed his
robe after B.B. jumped up. Leman testified that after seeing
this, she screamed “Oh My God” multiple times and that she
heard Bershon say, “I’m lonely and she wants to.” Leman then
picked up a rifle that was in the dining room, and she headed
toward Bershon, who got down on his knees. Leman held the
rifle to Bershon’s head, and he said, “[P]lease don’t kill me.”
Leman did not pull the trigger.
Leman testified that after the incident, Bershon went out-
side. After Leman eventually got B.B. to come out of her
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Cite as 313 Neb. 153room, she made sure that B.B. was never alone and she
attempted to keep B.B. from being around Bershon the rest of
that day. Leman testified that Bershon left the residence the
next day to stay at a motel and that the day after that, he left
Blair to go and stay with a relative in Colorado. Leman testi-
fied that she did not report the May 16, 2018, incident to law
enforcement until May 21 because she was “in such shock, just
a daze.” She eventually reported the incident because she “was
urged by friends to call.”
On cross-examination, Leman testified that it was not until
she reported the May 16, 2018, incident to law enforcement
that she learned that such incidents had been going on for
years. She testified that in the years prior to 2018, she had
never seen anything that made her think anything inappropriate
was going on and that B.B. had never said anything to her. On
redirect, Leman testified that she did not manipulate or pro-
gram B.B. to accuse Bershon of molesting her.
B.B. testified that throughout her school years, she was “in
a resource room” and that she “had help with any subject that
[she] took.” She testified that she graduated high school when
she was “[s]omewhere in [her] twenties.”
With regard to the May 16, 2018, incident, although she
could not identify the specific date it occurred, B.B. testified
regarding an incident that occurred between her and Bershon in
the kitchen. She testified that she was “sucking on his private”
when “he smacked me on the head and then my mom came
in.” B.B. clarified that by “private” she meant his penis and
that by “sucking” she meant that his penis was in her mouth.
B.B. testified that she did not know why she had done it, that
she knew it was wrong, and that she was scared that her mother
was mad at her.
B.B. testified that she understood sex to be “[w]hen a man
puts his you know what in you.” She clarified that she meant
“his dick,” which she agreed meant his penis. B.B. testified
that she and Bershon had had sex in the house in Blair. She
testified that it had happened when her mother was gone and
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Cite as 313 Neb. 153that it had happened “a lot.” B.B. stated that by “a lot” she
meant “[a] hundred times.” B.B. agreed that by “sex” she
meant that Bershon put his penis inside her vagina. She testi-
fied that it was Bershon’s idea and that she did not say no,
because she was scared.
B.B. testified that Bershon started having sex with her in
2006 when they moved to the house in Blair. B.B. also testi-
fied that there were times when Bershon would put his penis
in her mouth and that “goo or juice would come out” of it.
When asked whether such incidents had “happened throughout
the years from 2006 to 2018” and whether “it happened every
year that [she] lived in” the house in Blair, B.B. replied, “Yes.”
B.B. testified that she did not tell her mother what was happen-
ing, because she was “scared to tell her” and she “was afraid
[Leman and Bershon] would like get into a fight or divorce.”
B.B. also testified that there were times that Bershon would
get into the shower with her and would touch her “[d]own in
[her] — the V word.” She agreed that she meant her vagina
and that Bershon put his fingers inside.
On cross-examination, Bershon’s counsel asked B.B. with
respect to each year from 2007 through 2018 whether she
remembered Bershon having sex with her or touching her
in that specific year. B.B. replied to each question by stat-
ing that she did not remember. On redirect, B.B. agreed that
when she was under stress or confused, it was easier for her to
say she did not remember, and she testified that it was some-
thing she did “[l]ike all the time.”
Other witnesses at trial testified regarding B.B.’s mental
capacity and limitations. A school psychologist who worked
for the schools in Blair testified that B.B. was put into a spe-
cial education program when she transferred into the Blair
schools. He testified that testing on B.B. in 2007 showed that
she had an IQ of 48 and that she was classified as having
a “mental handicap” based on her IQ score, as well as “her
achievement scores, her reading skills, her math skills, [and]
her writing skills.” He testified that B.B.’s “academic skills
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STATE V. BERSHON
Cite as 313 Neb. 153would have been for the most part clustered at late elementary,
fourth through sixth grade” and that she remained in special
education throughout her high school years.
A clinical psychologist who performed a psychological
assessment of B.B. in December 2018 testified that the assess-
ment showed B.B. had an IQ of 63 which was considered as
being “extremely low range.” The clinical psychologist diag-
nosed B.B. as having a “mild intellectual disability” as well as
“major depressive disorder” and “recurrent, mild, . . . unspeci-
fied anxiety disorder.”
Finally, a counselor who provided therapy for B.B. begin-
ning in July 2018 testified that she diagnosed B.B. with
post-traumatic stress disorder and that her symptomology
was consistent with having suffered sexual abuse or sexual
trauma.
After the State rested its case, Bershon moved for a directed
verdict on all counts. With regard to the 17 counts related to
years prior to 2018, he argued that there was a lack of evi-
dence, because B.B. testified upon cross-examination that she
could not remember whether sexual abuse occurred in each of
the respective years from 2006 through 2017. With regard to
the counts of intentional abuse of a vulnerable adult, he argued
that although there was testimony regarding B.B.’s IQ and her
intellectual disability, there was no expert testimony to show
that she was a vulnerable adult or that she lacked decision-
making capacity. Bershon made no argument regarding due
process or double jeopardy in connection with the motion for
directed verdict. The court overruled Bershon’s motion for
directed verdict. After he rested his defense, Bershon renewed
the motion for directed verdict and the court again overruled
the motion.
The jury found Bershon guilty of all 13 counts of first
degree sexual assault, all 3 counts of incest, and all 3 counts
of intentional abuse of a vulnerable adult. The court there-
after sentenced Bershon to imprisonment for 40 to 45 years
for each of the first degree sexual assault convictions, for
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STATE V. BERSHON
Cite as 313 Neb. 1532 to 3 years for each of the incest convictions, and for 2 to 3
years for each of the intentional abuse of a vulnerable adult
convictions. The court ordered that the sentences for the 3
incest convictions and for the 10 first degree sexual assault
convictions that were related to the years 2006 through 2015
be served concurrently to one another, that the sentences for
the 3 intentional abuse of a vulnerable convictions and for the
3 first degree sexual assault convictions related to the years
2016 through 2018 be served concurrently to one another, and
that the two sets of concurrent sentences be served consecu-
tively to one another.
Bershon appeals his convictions.
ASSIGNMENTS OF ERROR
Bershon generally makes two groups of assignments of
error: the first arguments involve legal issues, and the second
arguments involve sufficiency of evidence. Bershon specifi-
cally claims that his convictions for all counts other than the
two counts alleged to have occurred on or about May 16, 2018,
were in violation of his due process rights, because (1) he was
not provided adequate notice of the charges and (2) the mul-
tiple convictions subjected him to double jeopardy. Bershon
also claims that there was not sufficient evidence to support
his 13 convictions for first degree sexual assault, because there
was not sufficient evidence that B.B. was mentally incapable
of resisting or appraising the nature of the sexual conduct, nor
was there sufficient evidence that B.B. expressed a lack of
consent in an observable manner. Bershon finally claims there
was not sufficient evidence to support his three convictions for
intentional abuse of a vulnerable adult, because there was not
sufficient evidence that B.B. was sexually abused.
STANDARD OF REVIEW
[1] Regardless of whether the evidence is direct, circumstan-
tial, or a combination thereof, and regardless of whether the
issue is labeled as a failure to direct a verdict, insufficiency of
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Cite as 313 Neb. 153the evidence, or failure to prove a prima facie case, the stan-
dard is the same: In reviewing a criminal conviction, an appel-
late court does not resolve conflicts in the evidence, pass on
the credibility of witnesses, or reweigh the evidence; such mat-
ters are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at
trial, viewed and construed most favorably to the State, is suf-
ficient to support the conviction. State v. Pauly, 311 Neb. 418,
972 N.W.2d 907 (2022).
ANALYSIS
Bershon Failed to Raise Due Process and Double
Jeopardy Issues in the District Court and
Waived the Issues for Appeal.
Bershon first claims that 17 of his convictions were in viola-
tion of his due process rights, because (1) he was not provided
adequate notice of the charges and (2) the multiple convictions
subjected him to double jeopardy. This claim relates to all
convictions other than the convictions for first degree sexual
assault and for intentional abuse of a vulnerable adult that were
alleged to have occurred on or about May 16, 2018. Bershon
generally argues that because each of the offenses was alleged
as having occurred between January 1 and December 31 of
the respective calendar years from 2006 through 2017 rather
than on more specific dates in those years, he did not have
enough information to respond to the charges and he risked
being punished multiple times for the same offense or offenses.
We conclude that because Bershon did not properly raise these
objections in the district court, he did not preserve the issues
for appeal.
[2,3] We first address Bershon’s argument that the informa-
tion did not provide adequate notice of the charges. Objections
to the form or content of an information should be raised by
a motion to quash. See, Neb. Rev. Stat. § 29-1808 (Reissue
2016); State v. Davis, 310 Neb. 865, 969 N.W.2d 861 (2022).
When a defendant enters a plea in a case, he or she waives
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STATE V. BERSHON
Cite as 313 Neb. 153objections to all defects in an information that can be reached
by a motion to quash, except those defects which are of such
a fundamental character as to make the indictment wholly
invalid. State v. Smith, 294 Neb. 311, 883 N.W.2d 299 (2016).
We have stated that defects of a fundamental character are
not subject to waiver. See State v. Davis, supra. However,
in State v. Meers, 257 Neb. 398, 403, 598 N.W.2d 435, 439
(1999), the defendant attempted to raise a challenge on appeal
to an information charging an offense within a 16-month
period as being “impermissibly broad in that it fails to
inform [the defend­ant] with reasonable certainty of the crimes
charged,” and we determined that the challenge was waived
for appeal because the defendant failed to file a motion to
quash the information on that basis. In this case, although
Bershon filed a motion to quash certain charges in the origi-
nal information filed against him, the issues he raised in that
motion did not include the argument he attempts to make on
appeal that he did not have adequate notice of the charges
related to the years 2006 through 2017. Because Bershon did
not move to quash those charges on the basis of inadequate
notice that he now asserts on appeal, he has waived the argu-
ment on appeal.
[4] Bershon also argues that the 17 convictions violate his
constitutional right against double jeopardy. A constitutional
issue not presented to or passed upon by the trial court is not
appropriate for consideration on appeal. State v. Reinhart, 283
Neb. 710, 811 N.W.2d 258 (2012). In Reinhart, we concluded
that because the defendant failed to raise the issue in the trial
court, he had waived his double jeopardy claim and we did not
address it. Bershon argues that he could not raise the double
jeopardy issues in a motion to quash, because the violation
would not be apparent until it was known what evidence the
State would present at trial. He argues that the alleged double
jeopardy violation became apparent only after the State’s evi-
dence failed to show specific dates to support each of the
17 convictions.
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Cite as 313 Neb. 153We note, however, that even after the State’s evidence was
presented, Bershon did not raise the double jeopardy argu-
ments in the district court. Bershon filed a motion for directed
verdict at the close of the State’s evidence, and he renewed
the motion after he rested his case. However, Bershon’s argu-
ments for directed verdict related to the sufficiency of the evi-
dence and he made no argument to the district court regarding
double jeopardy. Bershon also did not raise double jeopardy
issues after he was found guilty of all counts, and he did not
raise double jeopardy objections upon being sentenced for
the convictions.
We need not determine the precise point at which it would
have been appropriate for Bershon to raise his double jeopardy
arguments to the district court, because Bershon did not pre­
sent them to the district court at any point. Bershon therefore
waived the double jeopardy issues for appeal.
We conclude that Bershon waived his arguments that 17
convictions violated due process and double jeopardy, and we
therefore reject his first assignment of error.
There Was Sufficient Evidence to Support
Bershon’s Convictions for First
Degree Sexual Assault.
Bershon next contends that there was not sufficient evidence
to support his 13 convictions for first degree sexual assault.
He argues the evidence did not show that B.B. was incapable
of consenting to sexual conduct or that any sexual conduct
with Bershon was without her consent. Because we determine
that the evidence was sufficient to support the convictions, we
reject this argument.
Bershon was convicted of first degree sexual assault under
§ 28-319, which provides in relevant part that one commits
first degree sexual assault if one “subjects another person
to sexual penetration (a) without the consent of the victim,
[or] (b) who knew or should have known that the victim was
mentally or physically incapable of resisting or appraising the
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Cite as 313 Neb. 153nature of his or her conduct.” The State charged Bershon under
both the “without consent” and “mentally incapable of resist-
ing” versions of first degree sexual assault, and the district
court instructed on both.
We note first that in connection with his argument regard-
ing double jeopardy previously considered, Bershon argued
that the evidence presented by the State failed to show that
sexual abuse occurred in each of the calendar years from
2006 through 2017. Bershon does not repeat this argument
in connection with his claim that there was not sufficient
evidence to support his convictions for first degree sex-
ual assault. However, we note the following exchange dur-
ing B.B.’s direct testimony, which followed her testimony
regarding incidents in which Bershon subjected her to sexual
penetration:
Q. Okay. And this happened — Is it fair to say that this
happened starting in Blair when you lived in that house,
when you started high school, it happened throughout the
years from 2006 to 2018?
A. Yes.
Q. Okay. And you said it happened a lot, correct?
A. Yes.
Q. Do you think it happened every year that you lived
in that house?
A. Yes.
Despite this overarching evidence, Bershon highlights
inconsistencies in B.B.’s testimony. He notes that she gave
different definitions of what she considered “a lot” and that
on cross-examination, when she was asked specific questions
as to whether an incident occurred in each year from 2006
through 2017, she responded that she did not remember. We
acknowledge these inconsistencies in B.B.’s testimony, but as
set forth above, B.B. testified that the sexual conduct occurred
“throughout the years from 2006 to 2018” and that “it hap-
pened every year.” Thus, there was evidence from which the
jury could find that sexual conduct occurred in each year from
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Cite as 313 Neb. 1532006 through 2018, and any inconsistency goes to the credibil-
ity of B.B.’s testimony.
In reviewing a criminal conviction, we do not resolve con-
flicts in the evidence, pass on the credibility of witnesses, or
reweigh the evidence; such matters are for the finder of fact,
and a conviction will be affirmed, in the absence of prejudicial
error, if the evidence admitted at trial, viewed and construed
most favorably to the State, is sufficient to support the convic-
tion. State v. Pauly, 311 Neb. 418, 972 N.W.2d 907 (2022).
We therefore determine that there was sufficient evidence from
which the jury could find that sexual conduct occurred in each
of the years charged.
The focus of Bershon’s argument on appeal, however, is
that the evidence was not sufficient, because there was not suf-
ficient evidence that B.B. was mentally incapable of resisting
or appraising the nature of her conduct or that she expressed
a lack of consent in an observable manner. Bershon cites por-
tions of B.B.’s testimony in which she appears to indicate that
she was aware of what sexual activity was and that she was
aware that she could have resisted his conduct. He also argues
that although there was evidence that B.B. had intellectual and
learning disabilities, such evidence did not support the specific
finding that she was incapable of resisting or appraising the
nature of her conduct. He also argues there was not sufficient
evidence to establish that he subjected B.B. to sexual penetra-
tion without her consent; he argues there was no evidence that
he used force or the threat of force or that B.B. observably
expressed a lack of consent.
[5] In this case, the State charged first degree sexual assault
under § 28-319 under both subsection (a) as being “without the
consent of the victim” and subsection (b) regarding an actor
“who knew or should have known that the victim was mentally
or physically incapable of resisting or appraising the nature
of his or her conduct.” We have stated that when a defendant
is charged in alternative ways with committing an offense,
the jury can convict if it finds there is sufficient evidence of
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Cite as 313 Neb. 153either alternative, and thus the judgment of conviction must be
affirmed if the evidence is sufficient to support either of the
State’s alternative theories of guilt. State v. McCurdy, 301 Neb.
343, 918 N.W.2d 292 (2018). In McCurdy, as in the present
case, the defendant was charged under § 28-319 based alter-
natively on subsection (a) and subsection (b). Therefore, in the
present case, as in McCurdy, Bershon’s convictions should be
affirmed if there is sufficient evidence that sexual penetration
was without B.B.’s consent, whether or not there was also suf-
ficient evidence that B.B. was mentally incapable of resisting
or appraising the nature of her conduct.
With regard to whether sexual penetration was “without con-
sent,” Bershon argues that there was no evidence he used phys-
ical force or the threat of force against B.B. and that there was
no evidence that B.B. ever expressed a lack of consent through
words or actions. However, as we determined in McCurdy,
supra, a lack of consent can be proved when it is shown that
the defendant compelled the victim to submit due to the use of
coercion, as distinct from force or the threat of force. We noted
in McCurdy that “[w]ithout consent” is defined in Neb. Rev.
Stat. § 28-318(8)(a) (Reissue 2016) to mean that
(i) [t]he victim was compelled to submit due to the use
of force or threat of force or coercion, or (ii) the victim
expressed a lack of consent through words, or (iii) the
victim expressed a lack of consent through conduct, or
(iv) the consent, if any was actually given, was the result
of the actor’s deception as to the identity of the actor or
the nature or purpose of the act on the part of the actor.
In addition to stating that under § 28-318(8)(a)(i), “coercion”
was an alternate to “force” and “threat of force,” we also
determined that “coercion” can be shown to have occurred and
shown to have established “without consent” even when it was
not shown that the victim actively resisted at the moment rel-
evant to the charge of first degree sexual assault.
[6] In State v. McCurdy, supra, we held that “‘coercion’ in
§ 28-318(8)(a)(i) includes nonphysical force.” 301 Neb. at 358,
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Cite as 313 Neb. 153918 N.W.2d at 302. In concluding in McCurdy that the evi-
dence was sufficient to show that the defendant compelled the
victim to submit to sexual penetration by use of coercion and
that, therefore, the sexual acts were without consent, we noted
evidence regarding a history of the defendant’s sexual abuse
of the victim, “as well as evidence regarding [the defend­ant’s]
position of authority and dominion within [the victim’s] life
and household.” 301 Neb. at 358, 918 N.W.2d at 302. We
therefore stated that “under a totality of the circumstances
analysis, coercion within the context of a family or household
relationship between a minor and an adult authority figure can
support a finding that a defendant compelled a victim to submit
to sexual penetration by the use of ‘coercion.’” Id. at 363, 918
N.W.2d at 305.
Similar to McCurdy, the evidence in this case indicated that
Bershon subjected B.B. to sexual penetration over a period of
several years within the context of a family and household rela-
tionship, beginning when B.B. was a minor and Bershon was
an adult authority figure. Bershon was B.B.’s stepfather, and
they lived in the same household during the years the activity
occurred. B.B.’s testimony indicated that the sexual activity
continued throughout the years and that it started in 2006,
when she was 15 or 16 years old. The activity continued there-
after, and Bershon was charged with counts that occurred after
B.B. was no longer a minor. However, there was extensive evi-
dence regarding B.B.’s intellectual disability, including B.B.’s
own testimony, which allowed the jury to observe for itself
the level of her intellectual functioning. We note also Leman’s
testimony describing B.B. as having “an eight- or nine-year old
mentality in a young woman’s body” and the school psycholo-
gist’s testimony that B.B.’s “academic skills would have been
for the most part clustered at later elementary, fourth through
sixth grade.”
Although several counts charged offenses that occurred in
years when B.B. was no longer a minor and was well into her
twenties, for purposes of determining whether Bershon used
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Cite as 313 Neb. 153coercion, the jury could have found based on the evidence
that B.B.’s immature mentality was similar to that of a minor,
and therefore the evidence of the dynamics of the familial and
household relationship between Bershon and B.B. could sup-
port a finding Bershon compelled B.B. to submit to sexual
penetration by the use of coercion.
In addition to evidence of ongoing sexual conduct over
several years in the context of a stepparent-stepchild relation-
ship in which Bershon was an adult authority figure in B.B.’s
household, we further note B.B. testified that she did not want
to engage in sexual conduct with Bershon but that she was
afraid of the consequences if she did not comply. She testi-
fied that she was afraid that her failure to comply could cause
arguments between Bershon and Leman and that they might
divorce. We determine the evidence was sufficient to establish
that with regard to all 13 charges of first degree sexual assault,
Bershon compelled B.B. to submit to sexual penetration due to
the use of coercion, and that therefore, the sexual penetration
was without B.B.’s consent.
Given the foregoing discussion, there was sufficient evi-
dence to support Bershon’s 13 convictions for first degree
sexual assault. We reject Bershon’s claim to the contrary.
There Was Sufficient Evidence to Support
Bershon’s Convictions for Intentional
Abuse of a Vulnerable Adult.
Bershon finally claims that there was not sufficient evidence
to support his convictions for intentional abuse of a vulnerable
adult. He argues that the evidence does not show that B.B. was
“sexually abused.” We determine that the evidence was suffi-
cient to support the vulnerable adult convictions.
Bershon was convicted of intentional abuse of a vulnerable
adult in violation of § 28-386, which provides in relevant part
that a “person commits knowing and intentional abuse . . .
of a vulnerable adult . . . if he or she through a knowing and
intentional act causes or permits a vulnerable adult . . . to be:
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Cite as 313 Neb. 153(a) Physically injured; [or] (c) Sexually abused.” For purposes
of § 28-386, “[v]ulnerable adult” is defined in Neb. Rev. Stat.
§ 28-371 (Reissue 2016) to include, inter alia, “any person
eighteen years of age or older who has a substantial mental
. . . impairment,” and Neb. Rev. Stat. § 28-369 (Reissue 2016)
defines “[s]ubstantial mental impairment” as “a substantial
disorder of thought, mood, perception, orientation, or memory
that grossly impairs judgment, behavior, or ability to live
independently or provide self-care as revealed by observation,
diagnosis, investigation, or evaluation.” In addition, “[s]exual
abuse” is defined in Neb. Rev. Stat. § 28-367 (Reissue 2016)
to “include sexual assault as described in section 28-319 or
28-320 and incest as described in section 28-703.”
Bershon does not explicitly contend that there was not suf-
ficient evidence that B.B. was a “vulnerable adult.” In this
regard, we note that there was substantial evidence regarding
B.B.’s intellectual disability and her inability to live inde-
pendently; this evidence is sufficient to show a “substantial
mental impairment” that grossly impaired her ability to live
independently.
Bershon’s contention instead is that there was insufficient
evidence that B.B. was “sexually abused.” His argument with
regard to these vulnerable adult charges is similar to the argu-
ments he made with regard to the convictions for first degree
sexual assault. Because “sexual abuse” for purposes of the
offense of intentional abuse of a vulnerable adult is defined
to include, inter alia, first degree sexual assault as described
in § 28-319, the question whether there is sufficient evidence
that B.B. was sexually abused coincides with the question
whether there was sufficient evidence of first degree sexual
assault under § 28-319. We determined above that there was
sufficient evidence for the jury to find that Bershon commit-
ted first degree sexual assault with regard to all 13 counts,
including those counts related to the years for which the
3 counts of intentional abuse of a vulnerable adult were
charged. The same evidence which supported a finding that
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Cite as 313 Neb. 153Bershon committed first degree sexual assault also supports
a finding that B.B. was “sexually abused” and that Bershon’s
knowing and intentional acts caused or permitted B.B. to be
sexually abused.
We conclude that there was sufficient evidence to support
Bershon’s convictions for intentional abuse of a vulnerable
adult, and we reject Bershon’s claim to the contrary.
CONCLUSION
We conclude that because Bershon failed to raise due
process and double jeopardy issues in the district court, he
waived those issues for appeal. We determine that there was
sufficient evidence to support Bershon’s convictions for first
degree sexual assault and for intentional abuse of a vulner-
able adult. We therefore affirm Bershon’s convictions and
sentences.
Affirmed.