(2) Intimate parts means the genital area, groin, inner thighs, buttocks, or breasts;

(3) Past sexual behavior means sexual behavior other than the sexual behavior upon which the sexual assault is alleged;

(4) Serious personal injury means great bodily injury or disfigurement, extreme mental anguish or mental trauma, pregnancy, disease, or loss or impairment of a sexual or reproductive organ;

(5) Sexual contact means the intentional touching of the victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts. Sexual contact also means the touching by the victim of the actor's sexual or intimate parts or the clothing covering the immediate area of the actor's sexual or intimate parts when such touching is intentionally caused by the actor. Sexual contact includes only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party. Sexual contact also includes the touching of a child with the actor's sexual or intimate parts on any part of the child's body for purposes of sexual abuse by a school employee under section 28-316.01 or sexual assault of a child under sections 28-319.01 and 28-320.01;

(6) Sexual penetration means sexual intercourse in its ordinary meaning, cunnilingus, fellatio, anal intercourse, or any intrusion, however slight, of any part of the actor's or victim's body or any object manipulated by the actor into the genital or anal openings of the victim's body which can be reasonably construed as being for nonmedical, nonhealth, or nonlaw enforcement purposes. Sexual penetration shall not require emission of semen;

(a)(i) The 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;

(b) The victim need only resist, either verbally or physically, so as to make the victim's refusal to consent genuine and real and so as to reasonably make known to the actor the victim's refusal to consent; and

(9) Force or threat of force means (a) the use of physical force which overcomes the victim's resistance or (b) the threat of physical force, express or implied, against the victim or a third person that places the victim in fear of death or in fear of serious personal injury to the victim or a third person where the victim reasonably believes that the actor has the present or future ability to execute the threat.

Annotations

1. Jury instruction

2. Sexual contact

3. Sexual penetration

4. Deception

5. Miscellaneous

1. Jury instruction

Jury instruction approved, defining cunnilingus as including licking, kissing, sucking, or otherwise fondling the sex organ of a female with the mouth or tongue. State v. Piskorski, 218 Neb. 543, 357 N.W.2d 206 (1984).

2. Sexual contact

In the context of a conviction for third degree sexual assault under section 28-320, evidence of physical contact between the defendant's penis and the victim's shin was sufficient to support a finding of "sexual contact" as defined in subdivision (5) of this section. State v. Fuller, 279 Neb. 568, 779 N.W.2d 112 (2010).
In proving sexual contact, the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such a purpose. State v. Osborn, 241 Neb. 424, 490 N.W.2d 160 (1992).
"Sexual contact," as defined in subsection (5) of this section, is established when the State proves that defendant intentionally touched the victim's underpants in the area between the legs. State v. Andersen, 238 Neb. 32, 468 N.W.2d 617 (1991).
In proving "sexual contact," defined in subdivision (5) of this section, the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such a purpose. State v. Berkman, 230 Neb. 163, 430 N.W.2d 310 (1988).
Under subdivision (5) of this section, sexual contact means the intentional touching of the victim's sexual or intimate parts or the intentional touching of the victim's clothing covering the immediate area of the victim's sexual or intimate parts, and it includes only such conduct which can be reasonably construed as being for the purpose of sexual arousal or gratification of either party. State v. Cheloha, 25 Neb. App. 403, 907 N.W.2d 317 (2018).
In proving sexual contact, as defined in subdivision (5) of this section, the State need not prove sexual arousal or gratification, but only circumstances and conduct which could be construed as being for such purpose. In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).
Nebraska does not criminalize sexual contact for the purpose of humiliating or degrading a person. In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).
The issue of intent of sexual gratification in minors must be determined on a case-by-case basis, and the fact finder must consider all the evidence, including the offender's age and maturity, before deciding whether intent can be inferred. In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).
Without some evidence of the child's maturity, intent, experience, or other factor indicating his or her purpose in acting, sexual ambitions must not be assigned to a child's actions. In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).

3. Sexual penetration

Pursuant to subdivision (6) of this section, fellatio meets the definition of penetration regardless of whether the victim is forced to fellate the defendant or the defendant fellates the victim. State v. Garcia, 311 Neb. 648, 974 N.W.2d 305 (2022).
The slightest intrusion into the genital opening is sufficient to constitute penetration, and such element may be proved by either direct or circumstantial evidence. State v. Archie, 273 Neb. 612, 733 N.W.2d 513 (2007).
Penetration need not be penile to be sufficient to establish first degree sexual assault. State v. Shepard, 239 Neb. 639, 477 N.W.2d 567 (1991).
The act of fellatio constitutes a sexual penetration within the meaning of this section. State v. Gonzales, 219 Neb. 846, 366 N.W.2d 775 (1985).
The slightest penetration of the sexual organs is sufficient, if established beyond a reasonable doubt, to constitute the necessary element of penetration in a prosecution for first degree sexual assault. State v. Tatum, 206 Neb. 625, 294 N.W.2d 354 (1980).
The slightest intrusion into the genital opening is sufficient to constitute penetration under subsection (6) of this section, and such element may be proved by either direct or circumstantial evidence. State v. Garcia-Contreras, 31 Neb. App. 657, 987 N.W.2d 641 (2023).

4. Deception

A conviction for first degree sexual assault through the use of deception was supported by evidence that the victim, a young aspiring Olympian who trained at the defendant's gym, was told by the defendant that he needed to sexually penetrate her with his fingers to "adjust" her pelvis, that the defendant was 35 years older than the victim, that the defendant used deception for years to obtain the victim's consent and escalate the nature of the sexual penetration, and that the defendant told the victim that the penetration was necessary for "recovery" when she protested. State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).
The word "deception" means words or conduct, or both words and conduct, causing the victim to believe what is false. State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).
Under subdivision (8)(a)(iv) of this section, consent to sexual penetration that was the result of the actor's deception as to the identity of the actor qualifies as being without consent. State v. Prado, 30 Neb. App. 223, 967 N.W.2d 696 (2021).

5. Miscellaneous

Pursuant to subdivision (6) of this section, fellatio is defined as the oral stimulation of the penis for the purpose of sexual satisfaction. State v. Garcia, 311 Neb. 648, 974 N.W.2d 305 (2022).
"[C]oercion," under subdivision (8)(a)(i) of this section, includes nonphysical force. State v. McCurdy, 301 Neb. 343, 918 N.W.2d 292 (2018).
Sufficient evidence existed to establish sexual contact when the defendant touched the buttocks of a 12-year-old girl over her clothing on multiple occasions, coupled with the defendant's position of authority over the victim, his knowledge of her "tough" upbringing, and his watching pornography immediately after touching the victim on one occasion. State v. Cheloha, 25 Neb. App. 403, 907 N.W.2d 317 (2018).

(1) Any person who subjects another person to sexual penetration (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, or (c) when the actor is nineteen years of age or older and the victim is at least twelve but less than sixteen years of age is guilty of sexual assault in the first degree.

(2) Sexual assault in the first degree is a Class II felony. The sentencing judge shall consider whether the actor caused serious personal injury to the victim in reaching a decision on the sentence.

(3) Any person who is found guilty of sexual assault in the first degree for a second time when the first conviction was pursuant to this section or any other state or federal law with essentially the same elements as this section shall be sentenced to a mandatory minimum term of twenty-five years in prison.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

1. Constitutionality

2. Defenses

3. Elements

4. Evidence

5. Force

6. Generally

7. Lesser-included offense

8. Sentencing

9. Sexual penetration

10. Miscellaneous

1. Constitutionality

A constitutional amendment adding first degree sexual assault to offenses for which bail may be denied, is constitutional and is not violative of the Fourteenth Amendment, Due Process Clause of the U.S. Constitution. Parker v. Roth, 202 Neb. 850, 278 N.W.2d 106 (1979).
Statute held to be constitutional and not violative of equal protection under the Fourteenth Amendment. Country v. Parratt, 684 F.2d 588 (8th Cir. 1982).

2. Defenses

For criminal prosecutions brought under subsection (1)(a) of this section, 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. State v. Koperski, 254 Neb. 624, 578 N.W.2d 837 (1998).
In a charge of sexual assault on a child, it is no defense that the victim engaged in active concealment or misrepresentation of age, and evidence on the issue of the victim's chastity is irrelevant and inadmissible. State v. Campbell, 239 Neb. 14, 473 N.W.2d 420 (1991).
Consent or reasonable mistake as to the age of the victim is not a defense to first degree sexual assault upon a child. State v. Navarrete, 221 Neb. 171, 376 N.W.2d 8 (1985).

3. Elements

Subdivision (1)(b) of this section applies to a wide array of situations that affect a victim's capacity, including age. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
Under subdivision (1)(b) of this section, whether the victim was incapable of consent depends upon a specific inquiry into the victim's capacity, i.e., whether the victim was mentally or physically incapable of resisting or appraising the nature of his or her conduct. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
The victim's lack of consent is not an element of the crime of sexual assault when the victim is incapable of resisting or appraising the nature of his or her conduct. In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (2018).
To prove a lack-of-capacity sexual assault on the basis of a mental impairment, the State must prove beyond a reasonable doubt that the victim's impairment was so severe that he or she was mentally incapable of resisting or mentally incapable of appraising the nature of the sexual conduct with the alleged perpetrator. In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (2018).
A jury instruction on attempted first degree sexual assault is flawed if it fails to state that the defendant’s substantial step must strongly corroborate the defendant’s criminal intent or that the State must prove the defendant intended to subject the victim to sexual penetration without her consent or when she was incapable of resisting or appraising the nature of her conduct. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).
To find a defendant guilty of attempted first degree sexual assault, a jury must find that the defendant intended to subject the victim to penetration without consent or when the victim was incapable of resisting or appraising the nature of his or her conduct and that the defendant took a substantial step that strongly corroborated this intent. State v. Lavalleur, 289 Neb. 102, 853 N.W.2d 203 (2014).
Serious personal injury is not an element of first degree sexual assault. It is a factor that a sentencing judge shall take into consideration in imposing sentence. State v. Freeman, 267 Neb. 737, 677 N.W.2d 164 (2004).
The victim's lack of consent is not an element of the crime of sexual assault when the victim is incapable of resisting or appraising the nature of his or her conduct. State v. Rossbach, 264 Neb. 563, 650 N.W.2d 242 (2002).
Intent is not an element of first degree sexual assault as defined by subsection (1) of this section. State v. Trackwell, 244 Neb. 925, 509 N.W.2d 638 (1994).
Only in first degree sexual assault does the State have to prove that the actor subjected the victim to sexual penetration. State v. Narcisse, 231 Neb. 805, 438 N.W.2d 743 (1989).
Consent is not relevant and the State need not prove lack of consent for a charge under subdivision (1)(c) of this section. State v. Cramer, 28 Neb. App. 469, 945 N.W.2d 222 (2020).

4. Evidence

Under subsection (2) of this section, before imposition of a sentence on a defendant convicted of first degree sexual assault, a sentencing judge is not required to conduct an evidentiary hearing to determine whether the victim has sustained serious personal injury as a result of the sexual assault by the defendant; rather, concerning the question of personal injury to the victim, the judge shall consider information appropriately before the court in the sentencing process. State v. Bunner, 234 Neb. 879, 453 N.W.2d 97 (1990).

5. Force

For use of a firearm to subject a victim to sexual penetration by force or threat of force, it is only necessary that the victim be aware of the firearm's presence; that the assailant, in proximity to the firearm and knowing the firearm's location, has realistic accessibility to that firearm; and that the victim reasonably believes that the assailant will discharge the firearm to harm the victim unless the victim submits to the act of the assailant. State v. Dondlinger, 222 Neb. 741, 386 N.W.2d 866 (1986).
Removing articles of clothing from a sleeping person, physically spreading her legs, and performing nonconsenual cunnilingus is "force" sufficient to violate the statute. State v. Moeller, 1 Neb. App. 1046, 510 N.W.2d 500 (1993).

6. Generally

Cunnilingus, that is, stimulation by the tongue or lips of any part of a female's genitalia, is an act which may subject the actor to prosecution for first degree sexual assault. Once the perpetrator's lips or tongue touches any part of the female's genitalia, the act of cunnilingus is complete, irrespective of any actual penetration of the genitalia. State v. Brown, 225 Neb. 418, 405 N.W.2d 600 (1987).
Whatever basis there may have been for assuming that the common-law rule of spousal exclusion was applicable under the former rape law of this state, such assumption was effectively abrogated by the Legislature when it enacted this section. State v. Willis, 223 Neb. 844, 394 N.W.2d 648 (1986).
In a prosecution for sexual assault, the prosecutrix may testify on direct examination, if within a reasonable time under all the circumstances after the act was committed she made complaint to another, to the fact and nature of the complaint, but not as to its details. State v. Watkins, 207 Neb. 859, 301 N.W.2d 338 (1981).
It is sufficient if the victim's testimony is corroborated as to material facts and circumstances which support her testimony as to the principal facts at issue. State v. Red Feather, 205 Neb. 734, 289 N.W.2d 768 (1980); State v. Rhodes, 201 Neb. 576, 270 N.W.2d 920 (1978).

7. Lesser-included offense

A trial court is not required to sua sponte instruct on lesser-included offenses, but the trial court may do so if the evidence adduced at trial would warrant conviction of the lesser charge and the defendant has been afforded a fair notice of those lesser-included offenses. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).
Either the State or the defendant may request a lesser-included offense instruction where it is supported by the pleadings and the evidence. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).
Kidnapping is not a lesser-included offense of first degree sexual assault, nor is sexual assault a lesser-included offense of kidnapping; it is not impossible to commit one of these crimes without having committed the other. State v. Maeder, 229 Neb. 568, 428 N.W.2d 180 (1988).
Sexual assault of a child is not a lesser-included offense of first degree sexual assault of a child. State v. Putz, 11 Neb. App. 332, 650 N.W.2d 486 (2002).
Sexual assault in the second degree is not a lesser-included offense of sexual assault in the first degree. State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997).
Sexual assault in the third degree is not a lesser-included offense of sexual assault in the first degree. State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997).

8. Sentencing

Under subsection (2) of this section, before imposition of a sentence on a defendant convicted of first degree sexual assault, a sentencing judge is not required to conduct an evidentiary hearing to determine whether the victim has sustained serious personal injury as a result of the sexual assault by the defendant; rather, concerning the question of personal injury to the victim, the judge shall consider information appropriately before the court in the sentencing process. State v. Bunner, 234 Neb. 879, 453 N.W.2d 97 (1990).
A sentence of thirty-five years without the possibility of parole for first degree sexual assault, second offense, did not constitute cruel and unusual punishment. State v. Brand, 219 Neb. 402, 363 N.W.2d 516 (1985).

9. Sexual penetration

When a defendant is charged with first degree sexual assault under this section, the issue is not whether the defendant had sexual intercourse with the victim; rather, the issue is whether the defendant achieved even the slightest penetration. State v. Faatz, 234 Neb. 796, 452 N.W.2d 751 (1990).
Only in first degree sexual assault does the State have to prove that the actor subjected the victim to sexual penetration. State v. Narcisse, 231 Neb. 805, 438 N.W.2d 743 (1989).

10. Miscellaneous

A conviction for first degree sexual assault through the use of deception was supported by evidence that the victim, a young aspiring Olympian who trained at the defendant's gym, was told by the defendant that he needed to sexually penetrate her with his fingers to "adjust" her pelvis, that the defendant was 35 years older than the victim, that the defendant used deception for years to obtain the victim's consent and escalate the nature of the sexual penetration, and that the defendant told the victim that the penetration was necessary for "recovery" when she protested. State v. Anders, 311 Neb. 958, 977 N.W.2d 234 (2022).
A defendant who fellates a victim without consent is guilty of first degree sexual assault. State v. Garcia, 311 Neb. 648, 974 N.W.2d 305 (2022).
Evidence was sufficient to support a conviction for first degree sexual assault where the victim testified she did not consent to having sex with anyone on the night of her party, an attendee at the party testified that the defendant said he had sex with the victim, and there was abundant testimony about the victim's intoxication. State v. Guzman, 305 Neb. 376, 940 N.W.2d 552 (2020).
The definition of "mentally incapable" could have been excluded from the court's instructions, as the language of subdivision (1)(b) of this section is sufficiently clear that a definitional instruction would not normally be necessary. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
The evidence was sufficient to support a finding that a 10-year-old victim was incapable of appraising the nature of sexual conduct where the expert testimony provided an explanation of the brain capacities and reasoning abilities of a normal 10-year-old child and opined that the victim appeared to be a normally developed 10-year-old child. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
The trial court's ambiguous instruction was harmless error because the potential ambiguity did not in fact mislead the jury, because the instructions taken as a whole, combined with the evidence and arguments presented at trial, clarified the ambiguity of "because of the victim's age" such that the jury understood "age" in this context to be a subjective review of the victim's developmental age. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
Using the phrase "because of the victim's age" to preface the term "mentally incapable" is ambiguous as to whether age can be the sole basis for a finding that the victim was mentally incapable, without an individualized assessment of the victim's maturity. State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
Attempted first degree sexual assault on a child is a crime in Nebraska. State v. James, 265 Neb. 243, 655 N.W.2d 891 (2003).
First degree sexual assault under subsection (1)(a) of this section is a general intent crime. State v. Sutton, 16 Neb. App. 287, 741 N.W.2d 713 (2008).
Whether expert testimony is required to prove that a victim is physically or mentally incapable of consenting to or appraising the nature of the sexual contact is to be determined on a case-by-case basis; it was not required when a psychotherapist who specialized in treating sexually abused children used his training and experience to abuse his stepdaughters. State v. Collins, 7 Neb. App. 187, 583 N.W.2d 341 (1998).

(a) When he or she subjects another person under twelve years of age to sexual penetration and the actor is at least nineteen years of age or older; or

(b) When he or she subjects another person who is at least twelve years of age but less than sixteen years of age to sexual penetration and the actor is twenty-five years of age or older.

(2) Sexual assault of a child in the first degree is a Class IB felony with a mandatory minimum sentence of fifteen years in prison for the first offense.

(3) Any person who is found guilty of sexual assault of a child in the first degree under this section and who has previously been convicted (a) under this section, (b) under section 28-319 of first degree or attempted first degree sexual assault, (c) under section 28-320.01 before July 14, 2006, of sexual assault of a child or attempted sexual assault of a child, (d) under section 28-320.01 on or after July 14, 2006, of sexual assault of a child in the second or third degree or attempted sexual assault of a child in the second or third degree, or (e) in any other state or federal court under laws with essentially the same elements as this section, section 28-319, or section 28-320.01 as it existed before, on, or after July 14, 2006, shall be guilty of a Class IB felony with a mandatory minimum sentence of twenty-five years in prison.

(4) In any prosecution under this section, the age of the actor shall be an essential element of the offense that must be proved beyond a reasonable doubt.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

The age classifications of the victim in subdivision (1)(a) of this section are rationally related to plausible policy reasons considered by lawmakers, including the concern of protecting young people. The relationship of the classifications to legislative goals was not so attenuated as to render the distinction arbitrary or irrational, and it does not violate the Equal Protection Clause of the 14th Amendment of the Constitution of the United States or Article I, sec. 3, of the Nebraska Constitution. State v. Hibler, 302 Neb. 325, 923 N.W.2d 398 (2019).
For purposes of the authorized limits of an indeterminate sentence, both "mandatory minimum" as used in subsection (2) of this section and "minimum" as used in section 28-105 in regard to a Class IB felony mean the lowest authorized minimum term of the indeterminate sentence. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).
The mandatory minimum sentence required by subsection (2) of this section affects both probation and parole: Probation is not authorized, and the offender will not receive any good time credit until the full amount of the mandatory minimum term of imprisonment has been served. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).
The range of penalties for sexual assault of a child in the first degree, first offense, under subsection (2) of this section, is 15 years' to life imprisonment. State v. Russell, 291 Neb. 33, 863 N.W.2d 813 (2015).

(1) Any person who subjects another person to sexual contact (a) without consent of the victim, or (b) who knew or should have known that the victim was physically or mentally incapable of resisting or appraising the nature of his or her conduct is guilty of sexual assault in either the second degree or third degree.

(2) Sexual assault shall be in the second degree and is a Class IIA felony if the actor shall have caused serious personal injury to the victim.

(3) Sexual assault shall be in the third degree and is a Class I misdemeanor if the actor shall not have caused serious personal injury to the victim.

Cross References

Registration of sex offenders, see sections 29-4001 to 29-4014.

Annotations

1. Elements

2. Generally

3. Jury instructions

4. Lesser-included offense

5. Sexual contact

1. Elements

Pursuant to subsection (1) of this section, common sense alone establishes that a child of 5 or 6 years of age is incapable of understanding the nature of sexual conduct as a matter of law. In re Interest of Gunner B., 312 Neb. 697, 980 N.W.2d 863 (2022).
Defendant's conviction of sexual abuse of a vulnerable adult reversed because evidence was insufficient to establish element of sexual contact. State v. Hulshizer, 245 Neb. 244, 512 N.W.2d 372 (1994).
This section requires only that the state prove that the sexual contact took place and that the actor knew or should have known that the victim was mentally or physically incapable of resisting the actor's aggressions. In re Interest of J.M., 223 Neb. 609, 391 N.W.2d 146 (1986).

2. Generally

It is sufficient if the victim's testimony is corroborated as to material facts and circumstances which support her testimony as to the principal facts at issue. State v. Red Feather, 205 Neb. 734, 289 N.W.2d 768 (1980); State v. Rhodes, 201 Neb. 576, 270 N.W.2d 920 (1978).

3. Jury instructions

Trial court erred in instructing jury on second degree sexual assault. State v. Beermann, 231 Neb. 380, 436 N.W.2d 499 (1989).

4. Lesser-included offense

Third degree sexual assault is not a lesser-included offense of attempted first degree sexual assault. State v. Swoopes, 223 Neb. 914, 395 N.W.2d 500 (1986).
Third degree sexual assault is a lesser-included offense of second degree sexual assault. State v. Schwartz, 219 Neb. 833, 366 N.W.2d 766 (1985).
Sexual assault in the second degree is not a lesser-included offense of sexual assault in the first degree. State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997).
Sexual assault in the third degree is not a lesser-included offense of sexual assault in the first degree. State v. Schmidt, 5 Neb. App. 653, 562 N.W.2d 859 (1997).

5. Sexual contact

In the context of a conviction for third degree sexual assault under this section, evidence of physical contact between the defendant's penis and the victim's shin was sufficient to support a finding of "sexual contact" as defined in section 28-318(5). State v. Fuller, 279 Neb. 568, 779 N.W.2d 112 (2010).
Defendant's conviction of sexual abuse of a vulnerable adult reversed because evidence was insufficient to establish element of sexual contact. State v. Hulshizer, 245 Neb. 244, 512 N.W.2d 372 (1994).

(1) A person commits sexual assault of a child in the second or third degree if he or she subjects another person fourteen years of age or younger to sexual contact and the actor is at least nineteen years of age or older.

(2) Sexual assault of a child is in the second degree if the actor causes serious personal injury to the victim. Sexual assault of a child in the second degree is a Class II felony for the first offense.

(3) Sexual assault of a child is in the third degree if the actor does not cause serious personal injury to the victim. Sexual assault of a child in the third degree is a Class IIIA felony for the first offense.

(4) Any person who is found guilty of second degree sexual assault of a child under this section and who has previously been convicted (a) under this section, (b) under section 28-319 of first degree or attempted first degree sexual assault, (c) under section 28-319.01 for first degree or attempted first degree sexual assault of a child, or (d) in any other state or federal court under laws with essentially the same elements as this section, section 28-319, or section 28-319.01 shall be guilty of a Class IC felony and shall be sentenced to a mandatory minimum term of twenty-five years in prison.

(5) Any person who is found guilty of third degree sexual assault of a child under this section and who has previously been convicted (a) under this section, (b) under section 28-319 of first degree or attempted first degree sexual assault, (c) under section 28-319.01 for first degree or attempted first degree sexual assault of a child, or (d) in any other state or federal court under laws with essentially the same elements as this section, section 28-319, or section 28-319.01 shall be guilty of a Class IC felony.